Texas resists processing military benefits for same-sex spouses

Alicia Butler, a 43-year-old lawyer, and Judith Chedville, 38, a first lieutenant in the Texas Army National Guard’s medical command, met while they were both playing in a recreational soccer league in Dallas in 2001.

Twelve years later, the women still play soccer together, now as a married couple. While their home state of Texas doesn’t recognize same-sex marriages, they held a commitment ceremony in Hawaii in 2005, and officially tied the knot in Marin County, Calif., in the fall of 2008. Their wedding took place just three days before California voters approved Proposition 8, which banned same-sex marriage in the state until the measure was later ruled unconstitutional. Butler and Chedville's marriage was among approximately 18,000 that are still considered valid.

Now living in Austin with their 8-month-old daughter, Butler and Chedville were elated when the U.S. Department of Defense announced in August that starting on Sept. 3, the same-sex spouses of military service members would be eligible for the same health care, housing and other benefits afforded to opposite-sex military spouses. Following the Supreme Court’s June ruling that invalidated portions of the federal Defense of Marriage Act (DOMA), which had denied LGBT couples certain benefits, Defense Secretary Chuck Hagel wrote to Pentagon officials that “it is now the department's policy to treat all married military personnel equally."

So Chedville, who had served in Iraq and Kuwait, and Butler gathered the necessary paperwork in order to register Butler for an ID card through the Defense Enrollment Eligibility Reporting System (DEERS), the federal database where all military members and their spouses must enlist to qualify for military benefits.

“We had heard a rumor before that Texas might be giving people trouble,” Butler told Al Jazeera in reference to signing up for benefits as the same-sex spouse of a Texas Army National Guard member. “We didn’t think it was real.”

So they showed up at Camp Mabry, their local National Guard base in Austin, on the morning of Sept. 3, bringing their California marriage license and certified copies of birth certificates.

When they walked in, Butler recalled that the desk clerk announced, “’Oh, it’s one of those,”’ referring to the fact that she was a guard member’s same-sex spouse. The clerk called her supervisor, who informed the women — politely, Butler emphasized — that the state of Texas couldn’t enroll them in DEERS. 

Instead, he told them, they’d have to travel to a federal base to apply for an ID card, a three-hour round trip from Austin by car, because the federal government’s new stance on DOMA contradicts Texas’ state constitutional amendment banning gay marriage.

The supervisor provided them with a memo written by the adjutant general of Texas, Maj. Gen. John Nichols, who heads the Texas Military Forces, including the National Guard. Nichols wrote that the state and federal laws are at odds, but that “the law seems well settled that members of the National Guard of the various states are under control of the state, except in times of war.”

So ultimately, the Texas National Guard was obligated to obey state law, the supervisor said. The women asked whether Chedville could travel to the federal base at Fort Hood alone to enroll Butler on her behalf and then allow Butler to pick up her ID card in Austin, since it would be inconvenient for them to travel with their infant. But they were told that no, Camp Mabry could not even issue Butler an ID.

Butler felt humiliated by the incident. “I’m 43 years old and a trial lawyer, so obviously I’ve got a thick skin,” she said. “Nonetheless, it was pretty upsetting.”

She added, “I think it’s just ridiculous that we would be expected to go through stuff like that, driving here and there, and taking time off work ... The federal government ought to recognize this, and (DEERS is) a federal program.”

Butler is not alone.

Cassaundra StJohn — the same-sex spouse of another member of the Texas National Guard who did not want to reveal her name or location in order to protect her career — was denied a housing allowance (called Base Allowance for Housing, or BAH) at a local base despite the couple’s New Mexico marriage certificate, the American Military Partner Association (AMPA) said Monday. The couple were told they’d have to travel to a federal base.

What’s more, AMPA, a nonprofit advocacy group for the partners and spouses of LGBT service members, has been tracking this issue since Sept. 3, and told Al Jazeera that National Guard bases in nine states — Texas, Florida, Georgia, Indiana, Louisiana, Oklahoma, Mississippi, West Virginia and South Carolina — have refused to issue ID cards or benefits to the same-sex spouses of guard members since that date.

Most often, service members and their spouses have been told they must travel to federal bases because of the conflict with in-state laws banning gay marriage or prohibiting its recognition, AMPA said.

In Oklahoma, the National Guard decided to send all service members’ spouses — straight or gay — to apply for IDs at federal facilities, but it hasn’t yet addressed its policy on other benefits, according to local news reports. Florida and South Carolina are also sending all service members’ spouses to federal bases, according to the Miami Herald and the South Carolina National Guard.

“Pretty much all the states have said, ‘This is just an inconvenience for these folks, we’re not denying them any benefits, they just have to travel a little further to get them,’” said Chris Rowzee, an AMPA spokeswoman, in a telephone interview. “It’s a discriminatory crock, because you are putting those same-sex spouses through additional hoops and hurdles that their heterosexual counterparts don’t have to go through.”

She added, “The refusal to process the ID card application is just the beginning,” because a spouse needs that ID to apply for health insurance, housing allowances and other benefits.

In fact, when Hagel caught wind of what was going on at the local National Guard bases, he made another speech on Oct. 31 about federal benefits for same-sex military spouses and their families, chiding the states for violating the law.

“Not only does this violate the states’ obligations under federal law,” Hagel said in his speech before the Anti-Defamation League, “but their actions have created hardship and inequality by forcing couples to travel long distances to federal military bases to obtain the ID cards they’re entitled to. This is wrong. It causes division among our ranks, and it furthers prejudice.”

Since then, Indiana and West Virginia have reversed their positions and are now complying with federal law.

But Texas, Georgia, Louisiana and Mississippi continue to flout the DOD’s directive, according to Rowzee.

In a Sept. 13 letter to adjutant general Nichols, Paul Castillo, a staff attorney at LGBT legal rights organization Lambda Legal, discussed Butler and Chedville’s situation and pointed out that DEERS benefits are, in fact, federal benefits. What’s more, he wrote, the guard’s position “is particularly dubious given that the federal government provides virtually all of the funding, the material, and the leadership for the state Guard units.”

Castillo, who provided the letter to Al Jazeera, said in a telephone interview that “Texas Military Forces voluntarily implements a host of federal benefits programs for all National Guard units in the state,” so for it to claim that it is under state jurisdiction on this issue is misleading.

A representative for the Texas Military Forces (TMF) told Al Jazeera in an email that it is “dedicated to ensuring all members receive the benefits to which they are entitled. To clarify, once any marriage is recognized in the Defense Enrollment Eligibility Reporting System (DEERS), all local Texas National Guard facilities and personnel will process Base Allowance for Housing (BAH) and other federal benefits to which they are entitled.

"Again, the Texas Military Forces remains committed to caring for our military personnel and their families. Regardless of the potential conflict between state law and federal policy, we are committed to treating all service members with respect and dignity."

In response to a query about how Texas state law conflicts with the DOD’s directive, the TMF representative added that it is a state agency under the authority and direction of the state government, and “recognizes that the Texas Constitution and Texas Family Code 6.204 conflict with the same-sex benefit DOD policy change.”

But what Camp Mabry administrators and the TMF may not be aware of is a second letter from Nichols to the attorney general of Texas — a Sept. 25 update to the original memo shown to Butler and Chedville at Camp Mabry — in which he appears to reverse his opinion.

“All members of the Guard, as well as military technicians, while technically under the command and control of the Governor, also work for the federal government and are required to follow federal law, regulations, and policies,” he wrote in the letter, which was acquired through public information inquiries by AMPA and provided to Al Jazeera.

“Even when not federalized, the Texas National Guard has a federal obligation (or mission),” Nichols wrote.

In other words, the Texas Military Forces, which includes the National Guard, is obligated to obey federal law over state law.

Butler, for her part, feels hopeful that the guard in her state will soon comply.

“The DOD has taken the position that we’re right,” she said. “I can’t imagine that they’d continue to take this position with us for much longer. I’m optimistic that we’ll get it sorted out.”