Brewing Conflicts Between State and Federal Law on Same Sex Marriage

According to a recent article in Governing, same-sex couples have had ample problems with benefits across the country. Certain states argue that their own bans on gay marriage mean that they don‘t need to provide benefits to same-sex couples. For example, even though the Pentagon directed the Texas National Guard to process benefits for same-sex couples, it refused to process those requests earlier this week. In addition, Mississippi is refusing any applications for benefits that come from state-owned offices.

The U.S. Supreme Court decision came down a few months ago, but certain federal government offices only recently announced that they‘d be recognizing same-sex marriages. In particular, according to, this past Tuesday “was the first working day that gays in the military could apply for benefits.” As a result, both Texas and Mississippi are seeking to strictly limit “how and where same-sex spouses of National Guard members [can] register for identification cards and benefits.”

In fact, the Associated Press obtained a letter from Major General John Nichols, the commanding general of the Texas Military Forces, that made clear the state‘s opposition to same-sex benefits. He wrote to service members, indicating that “because the Texas Constitution defines marriage as between a man and a woman,” the state of Texas “couldn‘t process applications from gay and lesbian couples.” Nichols did say that the Texas National Guard, the Texas Air Guard, and the Texas State Guard wouldn‘t deny benefits to anyone, but he made clear that those benefits wouldn‘t be coming from Texas. Instead, he wrote to service members, “We encourage anyone affected by this issue to enroll for benefits at a federal institution.” He also provided a list of 22 bases in Texas, operated by the Department of Defense, where service members would be able to enroll their families for benefits.

According to officials at the Pentagon, it looks like Texas is the only state that‘s instituting a “total ban on processing applications from gay and lesbian couples.” How can states decide to do this? In short, both Texas and Mississippi are trying to make sure that state agencies follow state laws before looking to the new federal ones. Tim Powell, the Mississippi National Guard spokesman, said “the main factor in determining where same-sex couples could apply for benefits came down to the property owner.” He explained that “only National Guard offices on federal property would accept the applications in Mississippi.”

But Texas and Mississippi likely won‘t be able to keep up this stance on same-sex benefits. Stephen Peters, the president of the American Military Partner Association, emphasized the organization‘s outrage. Peters, as well as others, can‘t believe “that the State of Texas has decided to play politics with our military families.” Indeed, it looks like Texas and Mississippi are the only states trying to skirt federal law.

While Texas and Mississippi insist that gay couples don‘t have rights to benefits, other states that continue to ban gay marriage have eased their stances when it comes to same-sex benefits. For example, the Associated Press reported that “officials in 13 other states that also ban gay marriage–including Arizona, Oklahoma, Florida, Michigan and Georgia–said Tuesday that they will follow federal law and process all couples applying for benefits the same.”

Same sex marriage issues are working through the courts in New Mexico. So far, individual municipalities have spoken. The New Mexico Supreme Court has yet to weigh in but it seems inevitable that it must.


Share your thoughts