Texas Gov. Rick Perry (R) and other Republican governors might defy Defense Secretary Chuck Hagel’s call for all state National Guards to issue ID cards and full benefits to same-sex couples.
A spokesman for Perry said Friday that the state National Guard was obligated to follow the state constitution, which outlaws same-sex marriage.
Hagel on Thursday slammed Texas and eight other state National Guards for denying same-sex couples ID cards, saying they were violating federal law.
The Pentagon directed same-sex couples to receive full federal benefits after the Supreme Court struck down the Defense of Marriage Act in June.
“This is wrong,” Hagel said in a speech at the Anti-Defamation League (ADL). “It causes division among our ranks, and it furthers prejudice, which DOD has fought to extinguish, as has the ADL.”
Hagel said he was tapping National Guard Chief Gen. Frank Grass to resolve any issues with the state National Guards. A senior Defense official said Hagel was “prepared to take further action” if the states did not comply.
Oklahoma Gov. Mary Fallin may also refuse to agree to Hagel’s directive.
A spokesman for the Republican governor said President Obama was “seeking to usurp the power of the states” and undermine governors’ authority.
“Her priority is to obey and protect Oklahoma’s laws while supporting the men and women of the Guard,” Fallin spokesman Alex Weintz said.
“The president has made it clear he supports gay marriage,” he added. “He has the legal authority to order federal agencies to recognize gay marriages. He does not have the legal authority to force state agencies to do so, or to unilaterally rewrite state laws or state constitutions.”
Weintz said that Fallin was working with her attorney general to evaluate the legal options available to the Oklahoma guard.
The state National Guards are typically under the control of states and their governors, but the Guard can be called into federal service by the president.
Another Defense official told The Hill that Texas was wrong to suggest its state constitution trumped federal law.
"These are federal ID cards paid for with federal funding to provide federally mandated benefits,” the official said.
The official declined to speculate on what legal options could be taken if the states did not begin issuing the ID cards.
Texas officials have argued that same-sex spouses are able to travel to federal military facilities in Texas to receive the ID cards.
The Associated Press reported in September that Maj. Gen. John Nichols, the commanding general of Texas Military Forces, wrote to service members to say that his agency could not process applications from same-sex couples. But he said the Texas National Guard would not deny benefits to anyone.
“We encourage anyone affected by this issue to enroll for benefits at a federal installation," Nichols wrote.
Advocates for same-sex couples in the military say the law is clear that states cannot use the Guard to deny benefits and not issue ID cards.
“It’s a false argument because the vast majority of all National Guard resources are federal resources,” said Chris Rowzee, a spokeswoman for the Military Partner Association.
But several of the states listed by the Pentagon Thursday said they were being unfairly singled out.
The Indiana National Guard issued a statement Friday that said it had not refused same-sex benefits but that it had delayed for one month before it began issuing them.
"The Indiana National Guard started processing same-sex benefits on Oct. 3,” Indiana Guard spokeswoman Lt. Col. Cathleen Van Bree said in a statement.
“The delay in processing benefits was due to the Indiana National Guard conferring with the Indiana attorney general's office in order to understand the impact of these new benefits on state-active duty, where state funds are used to pay service members.”
The defense official said that the Indiana Guard told the Pentagon in September they weren't going to issue the ID cards until the review was complete, and it was "welcome news" the state was now complying with Pentagon policy.
Lawrence Messina, a spokesman for the West Virginia Department of Military Affairs, said there had been no instances in West Virginia where benefits were denied, and at least one ID card was granted to a same-sex spouse.
“I’m not aware of anyone being turned away,” he said.
— This story was updated at 7:05 p.m.