This is an interesting conflict of law question. The Texas Constitution prohibits the recognition of any “marriage” other than that of a man and a woman. Following United States v. Windsor, the Secretary of Defense ordered all state army national guard divisions to give benefits to same-sex couples. Texas (and Georgia, Louisiana, Mississippi, Oklahoma, and West Virginia) refused, citing state law to the contrary.
So who wins here?
While a majority of states ban same-sex marriages, most are not fighting the new policy. But Pentagon officials say that in addition to Texas, Georgia, Louisiana, Mississippi, Oklahoma and West Virginia have balked. Each has cited a conflict with state laws or constitutions that do not recognize same-sex marriages. (A West Virginia official said, however, that the state intended to follow the directive.) While the president has the power to call National Guard units into federal service — and nearly all Guard funding comes from the federal government — the states say the units are state agencies that must abide by state laws.
Requiring same-sex spouses to go to federally owned installations “protects the integrity of our state Constitution and sends a message to the federal government that they cannot simply ignore our laws or the will of the people,” Gov. Mary Fallin of Oklahoma said last week.
But the six states are violating federal law, Mr. Hagel told an audience recently. “It causes division among the ranks, and it furthers prejudice,” he said. Mr. Hagel has demanded full compliance, but Pentagon officials have not said what steps they would take with states that do not fall in line.
I don’t know nearly enough about the structure of these state national guard divisions, but to the extent they are bound by federal law, the state law to the contrary would give way.
The issue is somewhat moot, because a member of these divisions can go to a federal installation in the state to obtain the benefits.
Aides to Gov. Rick Perry, a Republican who is not running for re-election but is considering another presidential bid in 2016, told the commander of the Texas Military Forces (the state’s National Guard) that his “is a state agency and as such is obligated to adhere to the Texas Constitution and the laws of this state, which clearly define marriage as being between one man and one woman,” said Josh Havens, a Perry spokesman.
The state Guard commander, Maj. Gen. John F. Nichols, “wants to support all his soldiers and treat them all equally and fairly, but he cannot break state law,” said his spokeswoman, Lt. Col. Joanne MacGregor, who serves in the Texas Army National Guard. She said at least 20 federal installations in Texas were processing the benefits, while Camp Mabry and four other Guard bases on state property were not.
But this could be another way to attack Texas’s constitutional amendment against gay-marriage.