To get a sense of how Texas law will square with the U.S. Supreme Court’s June 26 decision striking down the federal Defense of Marriage Act (DOMA), most lawyers are looking at the Texas Supreme Court, which granted review last month to two cases involving same-sex couples who want divorces in state courts.
Yet on Sept. 3, Austin solo Alicia Butler got a glimpse of how the DOMA decision conflicts with the Texas Family Code in a much more pedestrian pursuit --- by requesting an identification card from a state agency.
“It was kind of a like a visit to DPS to get your driver’s licensed renewed, and it turned into a national story,’’ says Butler, a plaintiffs lawyer and former shareholder in Dallas’ Baron & Budd, who’s told her story to several media outlets.
Butler, who married Judith Chedville in California in 2008, recently accompanied her wife to Austin’s Camp Mabry, where Chedville serves in the Texas National Guard. The purpose for the visit was to enroll in the Defense Eligibility Reporting System (DEERS) and get an ID card, Butler says. A DEERS card would allow Butler to enter Camp Mabry and access services provided to military families.
However, Butler says she was not allowed to enroll in the program and was instead handed a memo that explained the Texas Military Forces conundrum regarding the DOMA ruling. The memo explained that, while the U.S. Department of Defense (DoD) had begun giving those cards to same-sex couples after the decision in U.S. v. Windsor struck down the federal DOMA law that prevented the federal recognition of same-sex marriages, the Texas Military Forces (TXMF) is in a different posture.
“The TXMF is a state agency under the authority and direction of the Texas state government. Therefore, the TXMF must consider that the Texas Constitution and Texas Family Code 6.204 conflicts with the DoD policy extending benefits to same sex-spouses. Due to this potential conflict, we are unable to enroll same-sex families into DEERS at our state supported facilities until we receive legal clarification,” according to the memo.
Section 6.204 prevents the state of Texas from recognizing same-sex marriages, much like the federal law struck down by Windsor. Butler says she’s filed an internal complaint with the office of the inspector general for the U.S. Army and is waiting for a response.
“It’s also fresh, and those wheels take some time to turn,’’ Butler says of the agency’s reaction to the DOMA ruling.
While Butler notes she could seek injunctive relief in a federal court, “I just don’t know if that’s a constructive thing to do or not.’’
Butler plans to consult with advocacy groups about her problem. But she marvels that her situation provides a direct challenge to the Texas Constitution.
“It’s a really dumb thing to hand people a challenge to the state constitution,’’ Butler says.
A spokesperson for TXMF did not immediately return a call for comment.
--- John Council