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Guard commander asks Texas AG for legal opinion on same-sex military benefits

AUSTIN, Texas — The commander of the Texas National Guard is asking the state’s attorney general for a legal opinion about whether he can process applications for military benefits for same-sex couples under a Pentagon directive even though gay marriage is banned in Texas.

Major Gen. John Nichols wrote a letter seeking guidance on how to reconcile the difference between the Texas Constitution, which defines marriage as a between a man and a woman, and federal regulations that grant full benefits and privileges to legally married same-sex couples enlisted in the military.

Major Gen. John Nichols

The letter, dated Thursday, was posted Friday on the website of Texas Attorney General Greg Abbott’s office.

The Department of Defense on Tuesday began allowing same-sex couples to apply for identification cards and benefits that previously had only been extended to married heterosexual couples. The partners of active duty, reserve and national guard troops are eligible if they married their spouse in a U.S. state where gay marriage is legal.

But Nichols ordered the Texas Military Forces, the umbrella command of all National Guard units in Texas, not to process any applications from same-sex couples, saying the guard was a state agency bound by Texas law. He told guard members to go to a federal installation to get their identification cards – the key to benefits – after which they would be treated the same as any other spouse.

Nichols noted in his letter that the U.S. Supreme Court struck down portions of the federal Defense of Marriage Act, enabling the federal government to begin extending benefits to same-sex couples, but the law still permitted states to decide whether to recognize same-sex marriages from other states.

“Accordingly, not all federal benefits will be given to same-sex couples residing in states where same-sex marriages are not recognized,” he wrote. “The law seems well settled that members of the Natio nal Guard of the various states are under the control of the state, except in times of war.”

Nichols then asks what actions his agency can take in order to fulfill the Pentagon’s policy “of extending spousal and dependent benefits to same-sex spouses without violating the Texas Constitution and Texas State Law?”

Under Texas law, state agencies seek advisory opinions from the state attorney general when they are uncertain about the law.

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Abbott has been a vocal critic of attempts to grant gays and lesbians the right to marry and has issued advisory opinions criticizing local authorities for extending benefits to same-sex couples. He has also threatened to sue San Antonio after the city passed an ordinance Thursday outlawing discrimination based on sexual orientation.

As attorney general, Abbott does not comment on requests for advisory opinions until he makes a formal decision, a process that can take months.

Thirty-three states have banned gay ma rriage, while 19 offer benefits for same-sex spouses.

Texas and Louisiana guard units have refused to process requests for benefits filed by same-sex spouses, referring applicants to federal facilities. Mississippi will only process requests for benefits on federally-owned installations.

But no state has said it would completely bar same-sex couples from receiving benefits once they are enrolled by the Department of Defense as military dependents.

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