Texas Is Shaky on Benefits for Gay Guardsmen

     AUSTIN (CN) – An agency that refuses to grant federal benefits to the families of gay members of the Texas National Guard asked the state attorney general for guidance.
     Under a new federal directive, the Department of Defense has for the last week been recognizing the same-sex marriages of military members and allowing them to apply for federal benefits for spouses and dependents.
     The change stems from the Supreme Court’s finding this past June that a section of the Defense of Marriage Act that defines marriage as the union of one man and one woman is unconstitutional.
     A five-justice majority had blasted law by saying that its “prin­cipal purpose is to impose inequality, not for other reasons like governmental efficiency.”
     Since Texas voters approved amending the state’s constitution in 2005 to ban same-sex marriages, however, a state agency known as Texas Military Forces, or TXMF, formally asked Texas Attorney General Greg Abbott for guidance on Sept. 4.
     “What actions, if any, can the TXMF take in order to fulfill the DoD policy of extending spousal and dependent benefits to same-sex spouses without violating the Texas Constitution and Texas State Law,” asked TXMF adjunct general and Texas Air National Guard Maj. Gen. John Nichols.
     Nichols described the TXMF as a state-based military organization that is under the “operational, tactical and administrative control” of the adjunct general and governor. It remains under state control until formally called into active federal service by the president of the United States
     “The law seems well settled that members of the National Guard of the various states are under the control of the state, except in times of war,” Nichols said.
     Josh Havens, a spokesman for Gov. Rick Perry, described the conflict TXMF faces. “As a state agency, Texas Military Forces must adhere with Texas law, and the Texas Constitution, which clearly defines marriage as between one man and one woman,” Havens told to CNN.
     The odds of Abbott ruling in favor of the Pentagon’s directive are slim considering his recent refusal to let the state political subdivisions offer gay couples or unmarried heterosexual couples health benefits.
     Dallas County and several other counties, cities and school districts in Texas have extended health benefits to domestic partners in recent years in spite of the state’s gay marriage ban.
     When pressed by state Sen. Dan Patrick, R-Houston, however, Abbott said that the constitution provision “explicitly prohibits” local government from creating or recognizing a legal status that is identical or similar to marriage between a man and woman.
     “The domestic partnerships about which you inquire are entirely a creation of the relevant political subdivisions,” Abbott wrote. “By creating domestic partnerships and offering health benefits based on them, the political subdivisions have created and recognized something not established by Texas law.”
     The American Civil Liberties Union blasted the TXMF’s policy, arguing servicemembers are being made to “jump through hoops” to get the federal benefits that they are due.
     “It’s ridiculous that the state of Texas is denying legally married same-sex couples who serve their country the benefits promised to them by the federal government,” ACLU of Texas executive director Terri Burke said in a statement.
     Texas will only allow same-sex service members to apply for benefits for their families at bases operated by the Department of Defense, while heterosexual members can apply anywhere, the ACLU said.

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