If a same-sex marriage happens outside of Texas, but no law in Texas was there to recognize it, did the marriage ever even happen?
Earlier this year, a state senator asked Attorney General Greg Abbott to weigh in on the question in light of all the same-sex couples employed by municipal governments in Texas who have been getting benefits. Abbott's response: "The domestic partnerships about which you inquire are entirely a creation of the relevant political subdivisions." In other words, no.
Now, the Texas military is grappling with the same question, and is waiting for another ruling from Abbott.
Three months ago, gay and lesbian troops seemed to get a break from the Pentagon, when Defense Secretary Chuck Hagel ordered the National Guard to give federal marriage benefits to same-sex couples. Shortly after, Texas Major General John Nichols sent a letter to Abbott asking for some clarification about what to do, since people still can't get gay-married in Texas. "What actions, if any, can the TXMF [Texas Military Forces] take in order to fulfill the DoD policy of extending spousal and dependent benefits to same-sex spouses without violating the Texas Constitution and Texas state law?," Nichols wrote to Abbott, requesting a decision.
Abbott is still thinking about it, but Governor Rick Perry has made his feelings clear. In an email to Unfair Park, Perry's spokesman Josh Havens reasons that Texas military couples aren't entitled federal marriage benefits if they're not straight: "In 2005, the people of this state voted to define marriage in our state constitution as being a union between one man and one woman. Everyone in Texas, including state agencies like the Texas Military Forces, must live under to the laws of this state. "
Perry's stance is becoming a headache to military couples who may have moved or taken a trip to a state where gay marriage is recognized, expecting to bring the benefits back home with them. That's exactly what happened to Judith Chedville and Alicia Butler, who married each other in California in 2008.
Chedville is an Iraq war veteran who currently serves in the Texas Army National Guard. On September 3, the day Hagel's order was supposed to go in effect, she tried to get federal marriage benefits at Austin's Camp Mabry. The clerk at Camp Mabry reportedly took a look at Chedville's papers and said, "It's one of those." Stay classy, Camp Mabry.
Now Butler is being represented by the Dallas office of Lambda Legal, the LGBT rights group. Shortly after the failure at Camp Mabry, Lambda attorney Paul Castillo contacted Nichols to point out the obvious: The federal government wasn't asking the Texas military to perform same-sex marriages or to give gay couples special gay benefits. Also, the federal government funds the National Guard. "Our client did not ask you to identify and provide any state-specific benefits in Major General recognition of her marriage, only to comply with the military's policies -- a condition of the extensive federal funding you receive," Castillo wrote.
Meanwhile, the Pentagon is looking annoyed and says that states need to extend benefits to everyone. In an October speech he gave the Anti-Defamation League, Hagel said he was aware of "several states" that were refusing to process federal benefits for same-sex couples, and promised that the chief of the National Guard Bureau, General Frank Grass, would take "immediate action to remedy this situation."
But the situation still isn't remedied. In September, Abbott's office responded to the Texas military's request for clarification by procrastinating. More specifically, Abbott's office said he would need 180 days to make a decision. We can already guess what his decision might be.
