The three states that have defied a Pentagon order to allow all active-duty military personnel to apply for same-sex spousal benefits are – so far – going it alone.
Texas, Louisiana and Mississippi are the only states to decline to process applications for such benefits at state-run National Guard facilities, citing state laws and constitutional amendments that ban gay marriage.
“We’re following state law, like several other states are,” said retired Lt. Col. Timothy Powell, a spokesman for the Mississippi National Guard.
More than a dozen states with similar laws have elected to follow the Pentagon’s policy, including North Carolina, South Carolina, Pennsylvania, Kentucky, Missouri, Idaho and Alaska. “It is not in conflict with our state constitution or state laws,” said Lt. Bernie Kale, a spokesman for the Alaska National Guard.
Other states, such as Florida and Kansas, are reviewing the policy. The Texas National Guard has asked Attorney General Greg Abbott whether it may follow the Pentagon policy in spite of state law.
A U.S. Supreme Court ruling in June led to the federal policy change, which took effect this month. The policy doesn’t change any state laws with respect to same-sex marriage, which three dozen states ban. But one by one, states are complying with the Pentagon’s benefits policy, finding no conflict with their own laws defining marriage.
“The military is not telling any state what the state has to do,” said Evan Wolfson, the founder and president of Freedom to Marry, a gay rights group. “It’s saying for federal purposes, couples who are married should be treated as what they are: married.”
The Pentagon and the Internal Revenue Service have adopted the “place of celebration” standard for determining eligibility for spousal benefits. As long as a couple was legally married in any state, country or jurisdiction where gay marriage is legal, the marriage is valid for benefits purposes, no matter where the couple lives.
According to Col. Timothy Marsano, a spokesman for the Idaho National Guard, married same-sex couples will be treated no differently from any others.
“It’s going to be no problem for someone who’s legally married in another state to come to us and apply for benefits,” he said. “We’re not going to send them packing.”
The disconnect between Texas, Louisiana and Mississippi and their politically, culturally and legally similar neighbors undermines the argument that they’re simply following their own state laws, said Susan Sommer, the director of constitutional litigation at Lambda Legal, a gay rights group.
“It looks a lot more like they’re playing politics,” she said.
For their part, the Pentagon and the National Guard Bureau have clarified that active-duty personnel in those three states may apply for same-sex spousal benefits at any federal base or installation.
“All federal military installations will issue IDs to all those who provide a valid marriage certificate from a jurisdiction that recognizes same-sex marriage,” said Nate Christensen, a spokesman for the Department of Defense.
But not everyone lives near a base, and in a large state such as Texas, it can mean a long drive to the nearest one.
Every state and territory receives federal funding to support its national guard. In some states, that constitutes most of the guard’s money.
Virginia Republican Gov. Bob McDonnell noted last week that his state receives 90 percent of its National Guard funding from the federal government, and though Virginia bans gay marriage, he said the state – home to the Pentagon and several military bases – would comply with the policy.
In other states, there was simply no ambiguity; an order is an order.
“To us, it’s just black and white,” said Maj. Edward Shank, a spokesman for the Pennsylvania National Guard. “We were told to do it, and we did it.”
The Kentucky National Guard hasn’t received any applications for same-sex spousal benefits since the policy took effect. But Lt. Col. Kirk Hilbrecht, a spokesman, said Kentucky would be ready when that happened.
“My job is to take care of our soldiers,” he said.
Joshua Block, a staff attorney with the American Civil Liberties Union who works on lesbian, gay, bisexual and transgender issues, said that as more socially conservative states adopted the Pentagon policy, it would pressure others.“It just goes to show how uncontroversial this should be,” Block said. “Maybe these states will reconsider.”