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.
Although her wedding in Washington, D.C., to Jessica Painter Huskey is recognized by the federal government, including the military, Nivia 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.
Nivia 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, Nivia Huskey was not available for an interview.
Jessica Huskey spoke at their tidy house outside Jacksonville, filled with photos and keepsakes of their nearly 10 years together. A lawyer, Jessica Huskey has put a lot of thought into the 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, Jessica Huskey worries what might happen if she were to get sick or die in an accident. Although 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, Nivia 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 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.
