Texas and Mississippi push back on federal same-sex “spousal” benefits

by Kirsten Andersen

AUSTIN, TX, September 4, 2013 (LifeSiteNews) – The Texas National Guard this week refused to process applications for same-sex spousal benefits, in defiance of a U.S. Department of Defense order expanding benefits to homosexual couples that took effect Tuesday.

Meanwhile, the Mississippi National Guard declined to issue benefits applications to same-sex couples from its state owned offices.

Officials in both states said that their refusal to comply with the federal directive stemmed from their states’ constitutional amendments banning same-sex “marriage.”

In Mississippi, National Guard spokesman Tim Powell said that while state-owned National Guard offices would not be able to process benefit applications for homosexual couples, such couples could go to offices located on federal property to apply.

"It is our intent to provide benefits and services to our men and women in uniform and at the same time abide by federal and state statutes," Powell said.  He said that once same-sex “spouses” are approved for benefits and given a military dependent ID card, they will qualify for services at any base in the state.

Likewise, in Texas, Maj. Gen. John Nichols of the Texas Military Forces said that while same-sex ‘spouses’ will not be denied services once approved for benefits by the DOD, those benefits must be applied for at federal military installations.  No office of the Texas Military Forces – which includes the Texas National Guard, Texas Air Guard and Texas State Guard – may issue or process applications for same-sex ‘spousal’ benefits because the Texas Constitution defines marriage as between a man and a woman.

Michael Boldin, Executive Director of the Tenth Amendment Center, which studies conflicts between the federal government and the states, told LifeSiteNews by email that at least for now, it seems as if Texas and Mississippi have the constitutional upper hand.

“[T]here's a very important principle known as ‘anti-commandeering,’” Boldin said. “The short version?  It means that the federal government can't force states (including their employees) to carry out federal acts.”

“Congress can ‘nationalize’ the Guard,” said Boldin, “but only SO LONG AS it does so to ‘execute the Laws of the Union, suppress Insurrections and repel Invasions.’ It cannot ‘govern’ the Guard expect when ‘employed in the Service of the United States,’ as per the three specific scenarios in Clause 15.”
Boldin added that this issue is a prime example of why his group feels it is important that states consider and pass the Defend the Guard Act, which removes ambiguity by requiring explicit action by Congress in order to nationalize a state’s Guard.

“Since there's no invasion (in the 18th century constitutional sense, that means a military attack), and no insurrection, and Congress hasn't specifically called up the Guard to execute the ‘Laws of the Union,’ all of the state Guard troops should be retained under state control,” Boldin said.

In the meantime, Boldin said if the federal government wants to force the Texas and Mississippi National Guard to facilitate benefit acquisition for homosexual couples, they might be able to do it … but legally, they should have to pay for any resources spent on it themselves.

“[The federal government] cannot … require Texas or Mississippi state employees, acting under the purview of powers reserved to the States under the Constitution - to do this for the federal government,” Boldin told LifeSiteNews.com.  “They also can't require those states to absorb the costs.  Not one penny.”