Updated, Sept. 6, 11:45 a.m.:
The Texas Military Forces has asked Attorney General Greg Abbott how it should proceed with an apparent conflict between federal and state law over whether to extend veteran benefits to same-sex spouses.
The request asks how Texas Military Forces (TXMF), a state agency that includes the Texas National Guard, should reconcile Texas law, which does not recognize same-sex marriage, with the U.S. Department of Defense’s recent policy of extending such benefits to same-sex spouses.
TXMF says national guard personnel are under state purview only until they are called to active duty, at which point they answer to the federal government. The result is legal ambiguity.
“What action, if any, can the TXMF take in order to fulfill the [defense department] policy of extending spousal and dependent benefits to same-sex spouses without violating the Texas Constitution or Texas state law?” the letter asks.
The attorney general has 120 days to complete the legal review, and an Abbott spokesman said the process usually takes several months.
Daniel Williams, legislative specialist for Equality Texas, an LGBT advocacy group, would not comment on the prospective outcome of the attorney general's review. But he said that in the meantime, "the major general [of TXMF] should do the right thing. In this case, the right thing is to respect the people who serve our country” by extending benefits to same-sex spouses.
The attorney general's office is likely to side with the state. On Wednesday, Abbott, who is running for the Republican nomination for governor, said litigation could follow if the San Antonio City Council passed a policy banning discrimination based on sexual orientation and gender identity. Citing free speech issues, Abbott wrote, “If the city ignores this advice and adopts the proposed ordinance, legal action will surely follow.”
The ordinance passed on Thursday with an 8-3 vote.
U.S. Attorney General Eric Holder told congressional leaders in a Wednesday letter that the Obama administration would no longer enforce a law banning same-sex spouses of veterans from receiving military benefits. He said the Justice Department had chosen to extend the Supreme Court's rationale in its decision overturning part of the Defense of Marriage Act to Title 38, the public law that governs veterans' benefits, calling the definition of marriage in both cases "substantively identical."
Audio: Ben Philpott's story for KUT News
The news follows Tuesday's very different announcement by the Texas National Guard that it will not provide benefits for same-sex couples. Maj. Gen. John Nichols, adjutant general of Texas Military Forces, a state agency, said in a memo that the Texas National Guard was prohibited from enrolling same-sex families in its benefits program at state-supported facilities, citing the state Constitution's definition of marriage as between a man and a woman. Nichols encouraged couples affected by the policy to request benefits at one of Texas' federal installations instead.
"Despite the legal conflict, the Texas Military Forces remains committed to ensuring military personnel and their families receive the benefits to which they are entitled," the Texas National Guard said in the memo.
The Associated Press reported on Tuesday — the first day gays in the military could apply for partner benefits — that Texas and Mississippi were the only two states refusing to process benefits requests from same-sex couples, despite a Pentagon directive that they do it.
It's still unclear what implications Holder's letter will have in Texas. The Texas National Guard did not immediately respond to requests seeking comment.
But Brian Thompson, a member of the board of directors for Equality Texas, an LGBT advocacy group, said Wednesday that he doubts it will have an immediate effect on the Texas National Guard's policy. "Holder's going to allow VA benefits to flow to same-sex couples who are married," Thompson said. "That's a little different from the benefits flowing from the Texas National Guard."
Generally, when federal and state law conflict, federal law takes precedence under the Supremacy Clause of the U.S. Constitution. But Thompson said Holder's letter highlights a persistent tension between the Texas Constitution and the federal government.
"You can definitely see what side the federal government is taking, and what side the Texas state government is taking," he said.
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/09/06/dc-and-tx-different-takes-military-benefits/ .