Rights of same-sex military spouses vary by state

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Jessica Huskey stands by a yellow ribbon placed there by her spouse, Cpl. Nivia Huskey, before the Marine's military deployment in Jacksonville, N.C., Aug. 20, 2014. (Gerry Broome/AP)
Jessica Huskey stands by a yellow ribbon placed there by her spouse, Cpl. Nivia Huskey, before the Marine's military deployment in Jacksonville, N.C., Aug. 20, 2014. (Gerry Broome/AP)

Rights of same-sex military spouses vary by state

by: Michael Biesecker and Julie Watson | .
The Associated Press | .
published: September 24, 2014

JACKSONVILLE, N.C. — On the wall over her bunk in Kuwait, Marine Cpl. Nivia Huskey proudly displays a collection of sonogram printouts of the baby boy her pregnant spouse is carrying back home in North Carolina. If all goes as planned, the 28-year-old military policewoman will return to Camp Lejeune in time for a January delivery at an on-base hospital.

But the space on the baby's birth certificate marked "Father" will be left blank.

Though her wedding in Washington, D.C., to Jessica Painter Huskey is recognized by the federal government, including the military, Cpl. Huskey is assigned to a battalion based in North Carolina, where state law bans same-sex marriage. She is barred from legally adopting her spouse's biological child, and will have no legal recognition as a parent.

Last year's U.S. Supreme Court ruling striking down the 1996 Defense of Marriage Act ensured that federal military benefits extend to same-sex partners and their children.

But about two-thirds of active-duty personnel in the U.S. are based in states that don't recognize gay marriages, leaving thousands of military families missing out on legal rights they would enjoy if Uncle Sam had stationed them elsewhere.

At their home near Edwards Air Force Base north of Los Angeles, Lt. Col. Ivan Acosta and his husband George Guthrie enjoy the benefits of living in a state that recognizes their relationship. In April 2013, they jointly adopted a baby girl named Emma. Both men are listed as parents on their daughter's passport and birth certificate.

"That is definitely why we would want to stay in California," said Acosta, a 39-year-old aerospace engineer. "It's something that we have to think about that most straight couples do not have to think about."

Same-sex marriage is legal in 19 states and the District of Columbia. Challenges in other states continue to make their way through the courts, many of them successfully.

A three-judge federal appeals panel recently upheld a lower court ruling striking down Virginia's same-sex marriage ban, a legal precedent considered binding on a judge currently considering the constitutionality of North Carolina's very similar prohibition.

The Virginia ruling, like similar cases in a slew of states, remains on hold and appears headed to the U.S. Supreme Court.

The Huskeys both grew up in an area dominated by peach orchards outside Gaffney, South Carolina. They were good friends in high school and began dating while in college.

Cpl. Huskey enlisted with the Marine Corps within days of the 2012 repeal of "Don't Ask, Don't Tell." They got married last year, just before the Marine shipped out for a war tour in Afghanistan.

Currently in Kuwait, Cpl. Huskey was not available for an interview.

Jessica Huskey spoke at their tidy house outside Jacksonville, a short drive north of the sprawling base where her spouse is posted when stateside. The home is filled with photos and keepsakes of their nearly 10 years together.

A lawyer, Huskey has put a lot of thought into the potential legal implications of what will happen if their baby is born before the law changes. When a married heterosexual woman has a child in North Carolina, the law presumes her husband to be the biological father - even if the child was in reality conceived through an extramarital affair or by using a reproductive donor.

"A straight couple could be in the exact position we are, their child conceived in the exact same way, but automatically that parent is considered to be the other parent, regardless," Huskey said. "That isn't fair."

With her spouse barred from having any parental rights, Huskey worries what might happen if she were to get sick or die in an accident. Though she intends to draft a will expressing her desire for their son to remain with her wife, there is no guarantee a state judge will follow those wishes - especially if Jessica Huskey's blood relatives fight for custody.

In an emergency, Cpl. Huskey won't be able to make health care decisions on behalf of their child without presenting a medical power of attorney signed by Jessica Huskey. When it comes time to register for public school, the Marine once again won't be recognized as a parent.

"What other parent has to carry around a power-of-attorney for their child?" Huskey asked. "How much sense does that make?"

The baby will qualify for federal family benefits through Cpl. Huskey's military service, but only if she registers the child as her stepson.

"I know that's hard to swallow for Nivia," Huskey said. "For her, that's not her stepchild. That's her son."

Acosta and his husband feel lucky not have to worry about such legal headaches. The military gave him three weeks of paternity leave to be home with his new baby. Emma, now 2, goes to an on-base daycare. They are in the process of adopting a second child.

Unlike enlisted men and women, officers are sometimes given some say in where they are posted. Acosta, who is from Florida, said he has requested to be allowed to stay where he is.

"If we went to a different state that didn't recognize (our marriage), I'm not sure of all the challenges but I'm sure it wouldn't be as easy as in California," he said.

The Pentagon does not have a formal policy addressing what, if any, special consideration should be given to a gay service member's request to be based in a state where his or her marriage will be recognized. Military personnel routinely make requests or express preferences about where they would like to be assigned based on personal factors, such as wanting to be close to an ailing parent or where a spouse has a job.

Those requests are weighed along with the military's needs for having personnel with particular skills where they are needed at any given time.

"The military services consider a variety of factors when assigning personnel to jobs, including an individual's request to be stationed in a particular duty-station," said Lt. Cmdr. Nate Christensen, a Pentagon spokesman.

The northwestern corner of South Carolina where the Huskeys grew up is very socially conservative. Both were raised in fundamentalist churches and even some members of their immediate families still see their marriage as an abomination. By speaking out now, the Huskeys hope more people will learn to accept their marriage and their choice to have a child.

"We grew up in the South. This is home to us," she said. "I just think we want things to change here. We'd like to see our family recognized as any other family."