By Tim Smith and Rudolph Bell, Greenville News
COLUMBIA - State Adjutant General Robert Livingston says the state's National Guard is in the process of moving its family benefit identification process from state to federal facilities so it will not conflict with state law that does not recognize same-sex marriage.
Livingston said the state is complying with a U.S. Department of Defense directive that the military begin providing benefits to spouses in same-sex marriages following a U.S. Supreme Court decision that struck down the federal Defense of Marriage Act.
At least four other states - Texas, Oklahoma, Mississippi and Louisiana - have bucked the DOD directive, saying to do so would conflict with their state's laws or constitutions.
Livingston said there are eight state Guard facilities in South Carolina that have issued benefit identification cards that will transfer those operations to five federal facilities.
Guardsmen who apply for benefits at a state facility will be referred to a federal facility, he said.
Livingston said 98 percent of employees in the state's National Guard are federal employees.
"In order to avoid conflict with state law, what we are doing is using federal employees to record the status of the same-sex partnership and we are doing that in a federal facility," he said. "We're kind of evolving with this."
So far there have been two inquiries and one card issued to a same-sex couple, he said.
Livingston said the nearest federal facility to Greenville is at the South Carolina Technology and Aviation Center, formerly Donaldson Center, which would take over card issuance from the Spartanburg Armory.
The card entitles family members to educational, health care and survivor benefits, Livingston said, as well as access to facilities such as the commissary at Fort Jackson.
South Carolina voters in 2006 overwhelmingly approved a state constitutional amendment allowing only heterosexual marriage. Another state law from 1996 prohibits same-sex marriage.
The bans are being challenged in federal court by a state trooper and a woman she married in Washington, D.C.
Like Guard units in other states, the South Carolina National Guard is a state/federal hybrid.
It's a reserve unit for the federal government, but it's also the state's Military Department.
Livingston is a state constitutional officer who administers the Military Department. Gov. Nikki Haley is the commander in chief.
As a result, Livingston said his command answers to two bosses - the Department of Defense and ultimately the president - and the governor.
"My job as the chief administrative officer for the South Carolina National Guard is to obey both directives and obey both constitutions," he said of the state and federal governments. "And I think we have a solution for that."
He said his office is discussing the matter with State Attorney General Alan Wilson's office and a legal review may eventually produce a less-restrictive approach.
"As we further review state law, me may be able to still use federal employees in state facilities," he said. "But we're taking a very conservative approach right now."
He said he has also consulted with Haley's office on the matter.
"The overriding piece of this is care for our soldiers and our airmen and their families because of the great service they provide to our nation," he said. "That's the big thing. We don't want to violate laws and we're not going to violate laws. But we want to make sure our people get the benefits that they earned, according to the applicable regulations."
Livingston said the issue is an example of why it would be a good idea to make his office an appointed one rather than the elected office it is now.
Someone who is elected could make an issue like benefits for same-sex couples a political football, he said.
Livingston said he supports legislation that would make his office an appointed position.
The state currently has about 9,500 personnel in the Army Guard and about 1,500 in the Air Guard, he said. About two-thirds of those have families, he said.
Chris Rowzee, a spokesperson for the American Military Partners Association, a network for gays, lesbians, bisexuals and transgendered persons in the military, said the rationale behind the SC Guard's policy could be used to deny certain benefits provided at state facilities, such as marriage enrichment classes designed to help spouses cope when a member of the military is called away from home.
"They're trying to spin it as if it is just simply an inconvenience to the military member, that they have to go to a different location to get their ID card," Rowzee said. "But it could be so much more than that. I just don't see how they can use that rationale and not extrapolate it to all these other things."
Oran Smith, president of the Palmetto Family Council, which takes socially conservative positions on various issues, including opposition to gay marriage, said it sounded to him like the state Guard policy was consistent with that of the Oklahoma National Guard, "which has been our preferred model in the country for how to handle the matter."
In Oklahoma, Gov. Mary Fallin ordered the National Guard to stop processing benefits applications from same-sex couples, in line with a state constitutional amendment barring benefits for gay couples, according to The Associated Press.
In South Carolina, Smith said, the issue is "maintaining the state Constitution, which only allows for recognition of one man and one woman marriage, while at the same time not running afoul of the federal law as interpreted by the U.S. Supreme Court."
Haley spokesman Doug Mayer said the governor supports Livingston's decision "to uphold the state constitution by electing not to process benefits form same-sex couples and instead refer them to federal facilities."
"The governor, like the majority of South Carolinians, supports traditional marriage as defined between one man and one woman, and in accordance with state law, will continue to uphold those values," Mayer said.
Andrew Whalen, campaign manager for state Sen. Vincent Sheheen, a Democratic candidate for governor, said, "The directive from the Department of Defense is clear and Vincent, like General Livingston, respects it. The brave men and women serving in the National Guard should receive the benefits they are entitled to nationally and in South Carolina."