Federal Employee Benefits and Same-Sex
Partnerships

Wendy R. Ginsberg
Analyst in Government Organization and Management
March 3, 2011
Congressional Research Service
7-5700
www.crs.gov
R41030
CRS Report for Congress
P
repared for Members and Committees of Congress

Federal Employee Benefits and Same-Sex Partnerships

Summary
The federal government provides a variety of benefits to its 8 million employees and annuitants.
Among these benefits are health insurance; enhanced dental and vision benefits; survivor
benefits; retirement and disability benefits; family, medical, and emergency leave; and
reimbursement of relocation costs. Pursuant to Title 5 U.S.C. Chapters 89, 89A, 89B, and other
statutes, millions of federal employees may extend these benefits to their spouses and children.
An estimated 34,000 federal employees are in same-sex relationships, including state-recognized
marriages, civil unions, or domestic partnerships.
The Defense of Marriage Act (DOMA) prohibits federal recognition of these unions for purposes
of federal enactments. Some federal employees and Members of Congress argue that same-sex
partners of federal employees should have access to benefits afforded married, opposite-sex
couples.
No legislation addressing same-sex partner benefits has been introduced in the 112th Congress.
But companion bills that sought to extend certain benefits to the same-sex partners of federal
employees and annuitants were introduced in the 111th Congress. On May 20, 2009, Senators
Joseph Lieberman and Susan Collins introduced S. 1102. That same day, Representative Tammy
Baldwin introduced H.R. 2517. Neither bill was enacted.
On December 17, 2009, the Congressional Budget Office released its cost estimate of H.R. 2517,
stating that enacting the legislation “would increase direct spending by $596 million through
2019” and discretionary spending would increase $302 million over the same period of time.
The executive branch has taken action on the issue of extending benefits to same-sex spouses of
federal employees and annuitants. On June 17, 2009, President Barack Obama issued a
memorandum directing executive agencies to extend benefits to the domestic partners of federal
employees within the authority of existing law. On July 10, 2009, Office of Personnel
Management Director John Berry issued a memorandum directing executive-branch agencies to
review all benefits offered to employees who are married to someone of the opposite gender. The
agencies were directed to determine whether the benefits listed were or could be extended to the
same-sex domestic partners of federal employees. On June 2, 2010, President Obama released a
second memorandum that extended specific benefits to the same-sex partners of federal
employees, including coverage of travel, relocation, and subsistence payments.
The Administration has also decided not to defend certain sections of DOMA in two pending
lawsuits. On February 23, 2011, Attorney General Eric Holder announced that the Department of
Justice would no longer “defend the constitutionality” of Section 3 of DOMA , which defines
marriage for federal purposes as only between a man and a woman. On that same day, White
House Press Secretary Jay Carney said that enforcement of DOMA as applied to existing federal
policies would continue.
This report examines the current policies on the application of benefits to same-sex partners and
reviews the policy debate on extending benefits to same-sex partners. This report is about federal
benefits for same-sex partners and not about same-sex relationships in general.

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Contents
Introduction ................................................................................................................................ 1
DOMA and the Extension of Federal Benefits ............................................................................. 3
Health Benefits ..................................................................................................................... 4
Dental and Vision Benefits .................................................................................................... 5
Federal Employment Compensation Act Benefits .................................................................. 5
Federal Employee Pensions and Survivor Benefits ................................................................ 5
Family and Medical Leave Act .............................................................................................. 6
Other Types of Leave ...................................................................................................... 7
Federal Long Term Care........................................................................................................ 8
Life Insurance ....................................................................................................................... 9
111th Congress Legislation ........................................................................................................ 10
Congressional Action in the 111th Congress ......................................................................... 11
H.R. 2517 ..................................................................................................................... 11
S. 1102.......................................................................................................................... 14
Executive Branch Action........................................................................................................... 14
Extension of Benefits Not Affected by DOMA .................................................................... 15
Changes in Legal Defense of DOMA .................................................................................. 16
Cost Estimates .......................................................................................................................... 18
Office of Personnel Management ........................................................................................ 18
The Williams Institute ......................................................................................................... 18
The Congressional Budget Office........................................................................................ 22
Analysis.................................................................................................................................... 23
Specific Issues .................................................................................................................... 24
Application to Every State............................................................................................. 24
Extending Benefits Beyond Same-Sex Partners ............................................................. 25
OPM Technical Amendments .............................................................................................. 26
OPM as Clearinghouse.................................................................................................. 26
Making Benefits and Obligations Identical .................................................................... 27
Tax Status of Benefits ................................................................................................... 27

Tables
Table 1. Estimated Costs to the Federal Government if Benefits Were Extended to Same-
Sex Domestic Partners ........................................................................................................... 20
Table 2. CBO’s Estimated Changes in Federal Outlays if H.R. 2517 or S. 1102 Were
Enacted.................................................................................................................................. 22

Contacts
Author Contact Information ...................................................................................................... 28
Acknowledgments .................................................................................................................... 28

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Introduction
The federal government provides a variety of benefits to its 8 million employees and annuitants.1
Among these benefits are health insurance; enhanced dental and vision benefits; retirement and
disability benefits and plans; survivor benefits; family, medical, and emergency leave; and
reimbursement of relocation costs. Pursuant to Title 5 U.S.C. Chapters 89, 89A, 89B, and other
statutes, federal employees who are married to opposite-sex partners may extend these benefits to
their spouses and children.
An estimated 34,000 federal employees and annuitants are in same-sex relationships, including
state-recognized marriages, civil unions, or domestic partnerships.2 The Defense of Marriage Act
(DOMA) limits the recognition of these relationships for purposes of some federal benefits.3
Specifically, DOMA states
In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the
word ‘marriage’ means only a legal union between one man and one woman as husband and
wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or
wife.4
While DOMA does limit recognition of some benefits to same-sex partners, some agencies permit
employees in same-sex relationships to extend certain health and other federal benefits to same-
sex domestic partners; other agencies do not.5
No legislation that seeks to extend certain federal benefits to the same-sex partners of federal
employees has been introduced in the 112th Congress. Companion bills that sought to extend a
variety of benefits to the same-sex partners of federal employees and annuitants were introduced
in the 111th Congress: H.R. 2517 and S. 1102. Pursuant to H.R. 2517 and S. 1102, federal
employees or annuitants seeking to extend federal benefits to their same-sex partners would have

1 This number includes employees and annuitants of the U.S. Postal Service. U.S. Congress, House Committee on
Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia,
FEHBP’s Prescription Drug Benefits, 111th Cong., 1st sess., June 24, 2009, http://www.opm.gov/News_Events/
congress/testimony/111thCongress/06_24_2009.asp.
2 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post
Office, and the District of Columbia, Testimony of M.V. Lee Badgett, H.R. 2517, The “Domestic Partnership and
Benefits and Obligation Act of 2009,” H.R. 2517, 111th Cong., 1st sess., July 8, 2009,
http://federalworkforce.oversight.house.gov/documents/20090708125728.pdf. Five states currently allow same-sex
couples to marry. These states are Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont. Legislation that
would make same-sex marriage legal in the District of Columbia was approved by the District of Columbia City
Council and signed by then-Mayor Adrian M. Fenty on December 18, 2009. Same-sex couples could legally marry in
the District of Columbia as of March 9, 2010. Some states, districts, and territories sanction same-sex partnerships or
civil unions, giving the couples involved rights that are similar to those given to a married opposite-sex couple. These
partnerships are not generally recognized by the federal government.
3 For more information on DOMA and its effects on same-sex marriages, see CRS Report RL31994, Same-Sex
Marriages: Legal Issues
, by Alison M. Smith.
4 1 U.S.C. §7.
5 For example, on June 18, 2009, one day after President Barack Obama released his memorandum seeking to extend
benefits to same-sex partners, Secretary of State Hillary Clinton directed her agency to extend a variety of relocation,
medical, and other benefits to the partners of employees in same-sex, committed relationships.
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been required to “file an affidavit of eligibility for benefits and obligations with the Office of
Personnel Management” (OPM) to qualify as recipients of the benefits. In the affidavit, the
employee would verify several criteria, including a requirement that the same-sex partners have
an intent to remain together “indefinitely.”6 The legislation also would have extended certain
benefits to the children of a same-sex partner. The bills would have defined “domestic partner” as
“an adult unmarried person living with another adult unmarried person of the same sex in a
committed, intimate relationship.” It would appear that this definition could exclude same-sex
couples legally married under state law from qualifying for the benefits that the bill would extend.
On June 17, 2009, President Barack Obama issued a memorandum directing executive agencies
to extend benefits to federal employees in same-sex domestic partnerships or same-sex marriages7
within the authority of existing law.8 On July 10, 2009, OPM Director John Berry issued a
memorandum directing all executive-branch agencies to review and report on the benefits offered
to opposite-sex partners—whether married or not—of federal employees.9 OPM and the
Department of Justice (DOJ) reviewed these reports and made suggestions to President Obama on
how to further pursue extension of benefits to the same-sex partners of federal employees.
On June 2, 2010, President Obama released a second memorandum extending specific benefits to
the same-sex partners of federal employees, including coverage of travel, relocation, and
subsistence payments. Among the benefits extended by the memorandum was the extension of
certain childcare and sick leave benefits that had previously only been available to opposite-sex
spouses, including the authority to take up to 24 hours of unpaid leave when his or her same-sex
partner or his or her partner’s child is ill. The extended benefits were made available upon the
memorandum’s release.
On February 23, 2011, the Obama Administration notified congressional leaders it would no
longer “defend the constitutionality of Section 3 of DOMA” in certain cases.10 Section 3 is the
portion of DOMA that defines marriage for federal purposes as only between a man and a
woman. While the Administration’s decision directly applies to two pending lawsuits—Pedersen
v. OPM
and Windsor v. United States—it is unclear what other pending litigation it could affect.
Congress can decide whether to defend Section 3 of DOMA in the pending cases.

6 The seven criteria are described later in this report.
7 Although there is a legal distinction between same-sex partners and same-sex marriages, this report refers to both
institutions as same-sex partnerships. In this report, the term “same-sex partnership” includes a legal marriage, same-
sex partners who chose not to get married, and partners who have been unable to get married for any reason. According
to a telephone conversation with an OPM official on November 18, 2009, federal employees who are in opposite-sex
common-law marriages qualify for federal benefits. Common law marriages, which are recognized in nine states and
the District of Columbia, are defined differently in each state. Generally, however, such a marriage requires a couple to
live together for an unspecified but considerable length of time, and to generally understand themselves to operate as a
married couple, despite not having a traditional marriage ceremony.
8 U.S. President (Obama), “Memorandum for the Heads of Executive Departments and Agencies, Subject: Federal
Benefits and Non-discrimination,” June 17, 2009, http://www.whitehouse.gov/the_press_office/Memorandum-for-the-
Heads-of-Executive-Departments-and-Agencies-on-Federal-Benefits-and-Non-Discrimination-6-17-09/. Among the
benefits that could be extended are relocation and travel expenses for same-sex domestic partners. Some departments
and agencies, including the State Department, already extend such benefits.
9 John Berry, Memorandum for Heads of Executive Departments and Agencies, Office of Personnel Management,
Subject: Federal Benefits for Same-Sex Domestic Partners, July 10, 2009, http://www.chcoc.gov/Transmittals/
TransmittalDetails.aspx?TransmittalId=2384.
10 U.S. Department of Justice, “Statement of the Attorney General on Litigation Involving the Defense of Marriage
Act,” press release, February 23, 2011, http://www.justice.gov/opa/pr/2011/February/11-ag-222.html.
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Regardless of the Administration’s decision not to defend Section 3 of DOMA in the two pending
cases, White House Spokesman Jay Carney said the “President is constitutionally bound to
enforce the laws and enforcement of the DOMA will continue.”11
A 2008 study estimated the cost of extending same-sex partner benefits to federal employees at
$41 million in the first year and $675 million over 10 years.12 On December 17, 2009, the
Congressional Budget Office (CBO) released its cost estimate of H.R. 2517, and stated that
enacting the legislation “would increase direct spending by $596 million through 2019” and
discretionary spending by $302 million over the same period of time.13
This report is about federal benefits for same-sex partners and not about same-sex relationships in
general.
DOMA and the Extension of Federal Benefits
The federal government provides health and other benefits to roughly 8 million federal employees
and annuitants.14 Among these benefits are health insurance; enhanced dental and vision benefits;
retirement and disability benefits and plans; survivor benefits; family, medical, and emergency
leave; and reimbursement of relocation costs. Various federal laws and regulations determine who
is eligible to receive these benefits. A federal employee who is married to someone of the
opposite gender can, pursuant to federal law, extend many of his or her benefits to his or her
spouse.
The Defense of Marriage Act (DOMA)15 affects the application of some benefits to the partners
of federal employees.16 DOMA defines “marriage” explicitly as “only a legal union between one
man and one woman as husband and wife.”17 DOMA defines “spouse” as “a person of the
opposite sex who is a husband or a wife.”18 Pursuant to 1 U.S.C. §7, these definitions are to be
used when “determining the meaning of any Act of Congress.”19 As such, DOMA has played a

11 The White House Office of the Press Secretary, The White House Office of the Press Secretary, “Press Briefing by
Press Secretary Jay Carney, 2/23/2011,” press release, February 23, 2011, http://www.whitehouse.gov/the-press-office/
2011/02/23/press-briefing-press-secretary-jay-carney-2232011.
12 Naomi Goldberg, Christopher Ramos, and M.V. Lee Badgett, The Fiscal Impact of Extending Federal Benefits to
Same-Sex Domestic Partners
, The Williams Institute, September 2008, p. 1.
13 Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, December 17,
2009, p. 1, http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf.
14 This number includes employees and annuitants of the U.S. Postal Service. U.S. Congress, House Committee on
Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia,
FEHBP’s Prescription Drug Benefits, 111th Cong., 1st sess., June 24, 2009, http://www.opm.gov/News_Events/
congress/testimony/111thCongress/06_24_2009.asp.
15 P.L. 104-199; 1 U.S.C. §7.
16 The partner of a federal employee of the opposite gender would also not be eligible for these benefits. This report,
however, focuses on eligibility of same-sex domestic partners.
171 U.S.C. §7.
18 Ibid.
19 For more information on DOMA, see CRS Report RL31994, Same-Sex Marriages: Legal Issues, by Alison M.
Smith.
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critical role in determining whether the same-sex partners of federal employees are eligible for
certain federal benefits.20
Companion bills introduced in the 111th Congress (S. 1102 and H.R. 2517)21 would have allowed
various federal benefits to be extended to the same-sex partners of qualifying federal employees
and annuitants. Reviewed below are some federal benefits that have been mentioned in both
previously pending legislation and executive-branch memoranda. Whether the same-sex domestic
partners of federal employees and annuitants qualify for such benefits under existing federal laws
and regulations is discussed.
Health Benefits
The Federal Employees Health Benefits Program (FEHBP) (5 U.S.C. §8909; 5 C.F.R. §890)
offers health benefits to qualifying federal employees and encompasses nearly 300 different
health care plans. As with health care plans in the private sector, FEHBP provides benefits to
enrollees for costs associated with a health checkup, an injury, or an illness. Health care costs are
shared between the federal government and the enrollee. According to a 2008 study, the federal
government pays, on average, 71% of a health plan’s premium and 29% of the premium’s cost is
paid by the employee.22
Pursuant to the Code of Federal Regulations, certain family members of a federal employee are
eligible to enroll in FEHBP.23 Among those eligible are an employee’s spouse and children under
age 22.24
The OPM website that explains eligibility requirements for FEHBP enrollees includes the
following excerpt on same-sex domestic partner benefits:
Same sex partners are not eligible family members. The law defines family members as a
spouse and an unmarried dependent child under age 22. P.L. 104-199, Defense of Marriage
Act, states, “the word ‘marriage’ means only a legal union between one man and one woman
as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is
a husband or a wife.”25

20 Two federal judges on the 9th Circuit Court of Appeals, acting in their capacities as hearing officers for circuit
employee disputes, concluded that the denial of health benefits to a same-sex spouse violated the 9th Circuit’s
Employment Dispute Resolution Plan. One order declared DOMA unconstitutional while the other avoided the
constitutionality issue and concluded that ambiguous language in the federal health benefits act allowed the benefits.
The precedential value of these decisions is unclear as the judges acted in their capacities as administrative officials and
not Article III judges.
21 References to the bills are to the versions that were introduced unless otherwise noted.
22 Naomi Goldberg, Christopher Ramos, and M.V. Lee Badgett, The Fiscal Impact of Extending Federal Benefits to
Same-Sex Domestic Partners
, The Williams Institute, September 2008, p. 4. The health care benefit costs for the U.S.
Postal Service’s (USPS’s) 765,000 employees is borne by USPS and the employees. Pursuant to bargaining contracts,
USPS pays, on average, 84% of its employees’ health care benefit premiums, and employees pay 16%.
23 5 C.F.R. §890.302.
24 Ibid. A federal employee’s child includes a “legitimate child,” “an adopted child,” or a “stepchild, foster child, or
recognized natural child who lives with the enrollee in a regular parent-child relationship.” As of January 1, 2011, an
eligible dependent child may be up to 26 years old, pursuant to P.L. 111-148, the Patient Protection and Affordable
Care Act. For more information see U.S. Office of Personnel Management, “Health: Reform,” http://www.opm.gov/
insure/health/reform/index.asp.
25 U.S. Office of Personnel Management, “Federal Employees Health Benefits Program Handbook,”
(continued...)
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Neither same-sex domestic partners of federal employees—nor the partner’s children,26 therefore,
are eligible to enroll in FEHBP.
Dental and Vision Benefits
Federal employees may choose to enroll in the Federal Dental and Vision Program (FEDVIP; P.L.
108-496; 5 U.S.C. Chapter 89A and 5 U.S.C. Chapter 89B), which provides vision and dental
benefits in addition to the limited coverage provided by FEHBP. Unlike FEHBP, however, the
enrollee pays all benefit premium costs and the federal government does not contribute to the
benefit’s premiums.
Like federal health benefits, federal employees may extend FEDVIP benefits to family members.
Eligibility rules are identical to FEHBP’s regulations.27
Both the Enhanced Dental Benefits program (5 U.S.C. §8951) and the Enhanced Vision Benefits
program (5 U.S.C. §8981) are not extended to the same-sex partners of federal employees who
are eligible for the benefit. OPM states on its website that “[t]he rules for family members’
eligibility are the same as they are for the” FEHBP for both the dental and the vision programs.28
Federal Employment Compensation Act Benefits
A federal employee is eligible for up to $100,000 in compensation if he or she is disabled while
performing his or her job, pursuant to the Federal Employment Compensation Act (FECA; 5
U.S.C. Chapter 81). If an employee is killed while performing his or her job, 5 U.S.C. §8102a
requires that payment go to the deceased employee’s spouse or children. The federal employee
may also designate his or her parents or siblings as the compensation recipient.29 The same-sex
partner of a federal employee is not listed in statute among the eligible recipients of such
compensation. Section (g)(1)(F) of both H.R. 2517 and S. 1102 would have extended this benefit
to the same-sex partners of federal employees.
Federal Employee Pensions and Survivor Benefits
Federal employees with permanent appointments are eligible for retirement and disability benefits
under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement
System (FERS).30 All federal employees initially hired into permanent federal employment on or

(...continued)
http://www.opm.gov/insure/health/reference/handbook/fehb28.asp.
26 If a federal employee legally adopted the child of his or her same-sex partner, the child would be eligible to receive
federal benefits. 5 C.F.R. §890.302.
27 U.S. Office of Personnel Management, “Federal Employees Dental and Vision Insurance Program (FEDVIP),”
http://www.opm.gov/insure/archive/dentalvision/.
28 U.S. Office of Personnel Management, “Dental: Introduction,” http://www.opm.gov/insure/dental/index.asp; and
U.S. office of Personnel Management, “Vision: Introduction” http://www.opm.gov/insure/vision/index.asp.
29 5 U.S.C. § 8102a(d)(1).
30 For more information on CSRS or FERS, see CRS Report 98-810, Federal Employees’ Retirement System: Benefits
and Financing
, by Katelin P. Isaacs.
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after January 1, 1984, are covered by FERS. Employees hired before January 1, 1984, are covered
by CSRS unless they chose to switch to FERS during open seasons held in 1987 and 1998. Both
FERS and CSRS provide survivor benefits for the spouse and dependent children of a deceased
federal employee or retiree.31
Both CSRS and FERS are subject to the statutory interpretation required by DOMA in
determining eligibility for survivor or dependant benefits under CSRS or FERS. As noted earlier,
“the word ‘spouse’ in DOMA refers only to a person of the opposite sex who is a husband or a
wife.”32
An employee or former employee can designate anyone as a beneficiary who will receive his or
her Thrift Savings Plan (TSP) account balance in the event of the participant’s death. TSP is a
defined contribution (DC) retirement plan similar to the 401(k) plans provided by many
employers in the private sector.33 Designation of a beneficiary must be done by filing Form TSP-3
with the Federal Retirement Thrift Investment Board. The Thrift Board is not authorized to
recognize wills or other estate planning documents. A participant married to a partner of the
opposite sex is not required to designate his or her spouse as the beneficiary of the TSP account,
nor is the spouse’s consent required to designate someone other than the spouse as the beneficiary
of the TSP account.34
Although a federal employee cannot name a same-sex domestic partner as his or her surviving
beneficiary under either FERS or CSRS, an employee who is applying for a non-disability
retirement can elect an Insurable Interest Annuity (IIA). Only one person may be named as the
beneficiary of the IIA, and the election must be made at the time of retirement. The person named
as the beneficiary must be someone who is financially dependent on the employee, and the
employee must establish, through one or more affidavits from other people, the reasons why the
beneficiary might reasonably expect to suffer loss of financial support as a result of the
employee’s death. The cost of an IIA can range from a 10% reduction in the employee’s
retirement annuity if the beneficiary is 10 years younger than the employee to a 40% reduction if
the beneficiary is 30 or more years younger.35
Family and Medical Leave Act
Pursuant to the Family and Medical Leave Act (FMLA; P.L. 103-3; 5 U.S.C. Chapter 63), certain
federal employees are entitled to use up to 12 weeks of unpaid leave during any 12-month period
for any of the following reasons:
• the birth of a child of the employee and follow-up care related to that birth;

31 See CRS Report RS21029, Survivor Benefits for Families of Civilian Federal Employees and Retirees, by Katelin P.
Isaacs.
32 1 U.S.C. § 7.
33 “401(k)” refers to the section of the Internal Revenue Code that authorizes deferral of income taxes until the time of
withdrawal for contributions to certain kinds of savings plans and for the interest and dividends on those contributions.
34 5 CFR §1651.4. See also CRS Report RS22856, Retirement and Survivor Annuities for Former Spouses of Federal
Employees
, by Katelin P. Isaacs.
35 For more information see CRS Report RS21897, The Effect of State-Legalized Same-Sex Marriage on Social
Security Benefits, Pensions, and Individual Retirement Accounts (IRAs)
, by John J. Topoleski.
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• the adoption of a child by the employee or placement of a foster child with the
employee;
• to care for an employee’s ailing spouse, child, or parent; or
• an illness or condition of the employee that renders him or her unable to work.
The 12 weeks of leave may be used intermittently throughout the year, when the employee meets
statutory and regulatory requirements of FMLA.36
FMLA regulations (5 C.F.R. §630.1201) define “spouse” explicitly as “an individual who is a
husband or wife pursuant to a marriage that is a legal union between one man and one woman,
including common law marriage between one man and one woman in States where it is
recognized.” A federal employee, therefore, may not use leave acquired pursuant to FMLA to care
for an ailing same-sex domestic partner. A June 22, 2010, Administrator Interpretation of the
FMLA expanded the act’s definition of “son or daughter” to permit an employee in a same-sex
partnership to use FMLA-approved leave to care for the child of his or her same-sex partner.37
Prior to the Administrator Interpretation, a federal employee was not permitted to use leave
acquired pursuant to FMLA to care for the ailing child of a same-sex domestic partner, unless the
employee had legally adopted the child.
Other Types of Leave
On June 14, 2010, OPM released a final rule clarifying the definitions “family member” and
“immediate relative” as they are used in determining eligibility for certain kinds of leave—
including sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency
leave transfer.38 Formerly, the regulation had defined “family member” as any one of the
following:
• spouse, and parents thereof;
• children, including adopted children and spouses thereof;
• parents;
• brothers and sisters; and
• any individual related by blood or affinity whose close association with the
employee is the equivalent of a family relationship.39

36 Pursuant to FMLA, federal employees are required to give employers at least 30 days’ notice prior to taking leave
when the need for leave is foreseeable (5 U.S.C. §6382(e)).
37 Deputy Administrator Nancy J. Leppink, Administrator’s Interpretation No. 2010-3, U.S. Department of Labor,
June 22, 2010, http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf. The interpretation
now permits any person serving “in loco parentis” to use FMLA-approved leave to care for a child. The term “in loco
parentis” is defined in the interpretation as someone “who has put himself in the situation of a lawful parent by
assuming the obligations incident to the parental relation without going through the formalities necessary to legal
adoption.” The new definition, therefore, is to include any adult-child relationship in which an adult is not the legal or
biological parent of a child but he or she “has day-to-day responsibility for caring for a child.”
38 U.S. Office of Personnel Management, “Absence and Leave; Definition of Family Member, Immediate Relative,
and Related Terms,” 75 Federal Register 33491-33497, June 14, 2010.
39 5 C.F.R. §630.201. The definition of “immediate relative” was identically modified in 5 C.F.R. §630.803. The
definitions of “committed relationship,” “domestic partner,” “family member,” “parent,” and “son or daughter” were
(continued...)
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Pursuant to the new regulation, the definition of family member will now also include
• grandparents and grandchildren, and spouses thereof; and
• a domestic partner and parents thereof, including the domestic partner of any of
the relatives listed above.40
The regulation also modified existing or added new definitions to the Code of Federal
Regulations
, including the terms “committed relationship,”41 “domestic partner,”42 “parent,”43 and
“son or daughter.”44 The regulation applies to both same-sex and opposite-sex partnerships,
provided that the partnership is recognized by a state, territory, or district government. The
regulation is effective as of June 14, 2010. The regulation does not affect FMLA.
Federal Long Term Care
Federal employees may also apply for the Federal Long Term Care Insurance Program (FLTCIP;
P.L. 106-265; 5 U.S.C. §9001), which provides medical services for enrollees who suffer a
chronic medical condition and are unable to care for themselves. Employees may voluntarily opt
into FLTCIP, and the entire premium is covered by the enrollee. Pursuant to 5 U.S.C. §9001,
qualifying federal employees; members of the uniformed services; federal annuitants; current
spouses of federal employees, service members, or annuitants; adult children of federal
employees, service members, or annuitants; and parents, parents-in-law, and stepparents of
federal employees, service members, or annuitants are eligible to enroll in FLTCIP. In addition,
federal law states that OPM may prescribe regulations that permit an “individual having such
other relationship” to a federal employee, service member, or annuitant to enroll in FLTCIP.45
On September 14, 2009, OPM issued a proposed regulation in the Federal Register that would
expand the definition of “qualified relative” to include “the same-sex domestic partners of
eligible Federal and U.S. Postal Service employees and annuitants.”46 OPM accepted comments

(...continued)
modified in or added to 5 C.F.R. §630.902.
40 U.S. Office of Personnel Management, “Absence and Leave; Definition of Family Member, Immediate Relative, and
Related Terms,” 75 Federal Register 33495, June 14, 2010.
41 Ibid., p. 33496. The regulation defined the term as follows: A relationship “in which the employee, and the domestic
partner of the employee, are each other’s sole domestic partner (and are not married to or domestic partners with
anyone else); and share responsibility for a significant measure of each other’s common welfare and financial
obligations. This includes, but is not limited to, any relationship between two individuals of the same or opposite sex
that is granted legal recognition by a State or by the District of Columbia as a marriage or analogous relationship
(including, but not limited to, a civil union).”
42 Ibid. The regulation defined the term as follows: “[A]n adult in a committed relationship with another adult,
including both same-sex and opposite-sex relationships.”
43 Ibid. The regulation modified the term by adding a “parent … of an employee’s spouse or domestic partner.”
44 Ibid. The regulation modified the term by adding a “son or daughter … of an employee’s spouse or domestic
partner.”
45 5 U.S.C. §9001(5)(D).
46 U.S. Office of Personnel Management, “Federal Long Term Care Insurance Program: Eligibility Changes,” 74
Federal Register
46937, September 14, 2009. According to the proposed rule, “domestic partner” is defined as follows:
“domestic partner’’ is a person in a domestic partnership with an employee or annuitant of the same
sex. The term “domestic partnership’’ is defined as a committed relationship between two adults, of
the same sex, in which the partners—are each other’s sole domestic partner and intend to remain so
(continued...)
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on the proposed regulation until November 13, 2009. On June 1, 2010, OPM published in the
Federal Register a final rule that left the language from the September 14, 2009, proposal
unchanged. Same-sex partners, therefore, will be eligible for FLTCIP benefits—which were not
previously available to them—as of July 1, 2010.47
Several comments received by OPM during the regulatory review of the definition change of
“qualified relative” requested that opposite-sex domestic partners—in addition to same-sex
partners—be made eligible for the long term care benefit. In the final rule, however, OPM wrote
that “opposite-sex domestic partners were not included because they may obtain eligibility to
apply for Federal long term care insurance through marriage, an option not currently available to
same-sex domestic partners.”48
Life Insurance
Pursuant to 5 U.S.C. Chapter 87, most federal employees, including part-time employees, are
automatically enrolled in the Federal Employees’ Group Life Insurance (FEGLI) program, which
is administered by Metropolitan Life Insurance Company.49 Federal employees pay two-thirds of
their life-insurance premium, and the federal government pays the remaining third.50 A federal
employee may designate anyone, including a same-sex partner, as their life insurance beneficiary
by filing an SF 2823 form.51 If an employee married to an opposite-sex partner does not designate
a beneficiary, his or her spouse would receive the federal benefit, pursuant to federal law (5
U.S.C. §8705(a)).
The definition of “family member” in 5 U.S.C. §8701, the section of the U.S. Code related to life
insurance benefits, includes the phrase “spouse of the individual.” The term “spouse” does not
explicitly state that a same-sex partner would be excluded from the benefit. Title 5 U.S.C. §8705,
however, delineates the order of preference in which life insurance benefits would be distributed
in the event of a federal employee’s death. Pursuant to the law, the benefit would first be
distributed to any person or entity that was selected by the employee using the SF 2823 form. If
no form were completed, the benefit would then go to “the widow or widower of the

(...continued)
indefinitely; have a common residence, and intend to continue the arrangement indefinitely; are at
least 18 years of age and mentally competent to consent to contract; share responsibility for a
significant measure of each other’s financial obligations; are not married to anyone else; are not a
domestic partner of anyone else; are not related in a way that, if they were of opposite sex, would
prohibit legal marriage in the state in which they reside; will certify they understand that willful
falsification of the documentation described in paragraph (a) of this section may lead to disciplinary
action and the recovery of the cost of benefits received related to such falsification and may
constitute a criminal violation under 18 U.S.C. § 1001.
47 U.S. Office of Personnel Management, “Federal Long Term Care Insurance Program: Eligibility Changes,” 75
Federal Register
30267-30268, June 1, 2010.
48 Ibid., p. 30267.
49 A qualifying federal employee may be exempted from the life insurance program if he or she provides required
written notice of the desired exemption (5 U.S.C. §8702). Qualifying federal employees may choose to enroll in
additional life insurance coverage.
50 The U.S. Postal Service pays 100% of the life insurance premium.
51 For more information about the SF 2823, see U.S. Office of Personnel Management, “Life: Designation of
Beneficiary,” http://www.opm.gov/insure/life/fegli/sf2823.asp.
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employee.”52 It would appear that DOMA would preclude same-sex domestic partners from
qualifying as a widow or widower.
111th Congress Legislation
On May 20, 2009, companion bills that sought to extend various health benefits to same-sex
domestic partners of qualifying federal employees were introduced in the Senate and in the House
of Representatives. Senators Joseph Lieberman and Susan Collins jointly introduced the
Domestic Partnership Benefits and Obligations Act of 2009 (S. 1102); Representative Tammy
Baldwin introduced an identical bill in the House (H.R. 2517). Pursuant to the legislation, six
months after the bill was enacted, the domestic same-sex partner of a federal employee would
have been “entitled to benefits available to, and shall be subject to obligations imposed upon, a
married employee and the spouse of the employee.”53 Among these benefits were
• health insurance and enhanced dental and vision benefits (5 U.S.C. §89, 89A,
89B);
• retirement and disability benefits and plans (5 U.S.C. Chapters 83, 84; 22 U.S.C.
§4101 et seq.; 50 U.S.C. Chapter 38);
• family, medical, and emergency leave (5 U.S.C. Chapter 63 – subchapters II, IV,
and V; 29 U.S.C. § 2601 et seq.; 2 U.S.C. §1312; 3 U.S.C. §412);
• federal group life insurance (5 U.S.C. Chapter 87);
• long-term care insurance (5 U.S.C. Chapter 90);
• compensation for work injuries (5 U.S.C. Chapter 81);
• benefits for disability, death, or captivity (5 U.S.C. §§5569 and 5570; 22 U.S.C.
§3973; 42 U.S.C. 3796 et seq.);
• travel, transportation, and related payments and benefits (5 U.S.C. Chapter 57; 22
U.S.C. § 4981 et seq.; 10 U.S.C. §1599(b); and
• any other benefit similar to a benefit described above.
Each qualifying federal employee who sought to enroll his or her same-sex domestic partner in a
federal benefit program would have been required to file an affidavit of eligibility with OPM54
“identifying” his or her domestic partner and “certifying” that he or she meets several other
criteria. The bill defined a domestic partner as “an adult unmarried person living with another
adult unmarried person of the same sex in a committed, intimate relationship.” In the affidavit,
the employee and the same-sex domestic partner would have had to verify that they
• are one another’s “sole domestic partner and intend to remain so indefinitely”;
• “have a common residence and intend to continue the arrangement”;

52 5 U.S.C. §8705(a).
53 S. 1102, Sec. 2. Information provided in this section is taken from S. 1102, as introduced. The analysis, however,
also applies to H.R. 2517, as introduced, as the bills are identical.
54 Section 2(e) of the legislation requires OPM to use the information provided by an employee only for the purposes of
determining eligibility.
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• are at least 18 years old and are “mentally competent to consent to contract”;
• “share responsibility for a significant measure of each other’s common welfare
and financial obligations”;
• “are not married to or domestic partners with anyone else”;
• “are same sex domestic partners, and not related in a way that, if the [two] were
of opposite sex, would prohibit legal marriage in the state in which they reside”;
and
• “understand that willful falsification of information within the affidavit may lead
to disciplinary action,” including both civil and criminal penalties (S. 1102, Sec.
2).55
The legislation also required a federal employee to file a statement of dissolution within 30 days
of the death of his or her same-sex partner or the dissolution of the relationship.56 The legislation
stated that if the employee’s same-sex relationship ended for any reason other than death, the
partner would have been “entitled to benefits available to, and shall be subject to obligations
imposed upon, a former spouse.” Similarly, if the federal employee were to die, the same-sex
partner would have received benefits identical to those that would be given to a widow or
widower of an opposite-sex partner (S. 1102, Sec. 2(c)).
Natural or adopted step children of a federal employee’s domestic partner would have been
“deemed a stepchild of the employee,” pursuant to the bill.
Congressional Action in the 111th Congress
H.R. 2517
On May 20, 2009, H.R. 2517 was concurrently referred to the Committee on House
Administration, the Committee on the Judiciary, and the Committee on Oversight and
Government Reform. The Committee on Oversight and Government Reform referred the bill to
its subcommittee on the Federal Workforce, Postal Service, and the District of Columbia.
On July 8, 2009, OPM Director Berry testified before the House Committee on Oversight and
Government Reform, Subcommittee on the Federal Workforce, Postal Service, and the District of

55 The reported versions of the legislation from both congressional chambers were slightly different from the language
in the legislation introduced in both the House and Senate. In the reported House version of the bill, for example,
allowed the partners to live in separate locations “because of financial, employment-related, or other reasons” that
would have to be identified in the affidavit. The introduced version of the bill required the partners to share a residence.
See U.S. Congress, House Committee on Oversight and Government Reform, Domestic Partnership Benefits And
Obligations Act of 2009
, report to accompany H.R. 2517, 111th Cong., 2nd sess., January 22, 2010, H.Rept. 111-400,
Part 1 (Washington: GPO, 2010), p. 3. The Senate version, as ordered reported, made similar definition changes as
those made in the House’s reported version.
56 Defining the term “dissolution” may prove difficult. In an opposite-sex marriage, the dissolution of the relationship is
determined by law. As many same sex partnerships are recognized in limited circumstances or not at all, the dissolution
of such unions may vary based on jurisdiction. Moreover, the dissolution of partnerships entered into other jurisdictions
may prove problematic. Determining when a same-sex relationship is officially dissolved is beyond the scope of this
report.
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Columbia.57 In his statement, Mr. Berry said that neither same-sex nor opposite-sex domestic
partners are eligible for federal benefits, but added that opposite-sex domestic partners have the
option to get married and qualify for benefits. Even in the few states where same-sex marriage is
recognized, Mr. Berry said, such unions are not recognized under federal law because of DOMA.
He continued:
This policy is unjust and it directly undermines the federal government’s ability to recruit
and retain the nation’s best workers. Historically, the federal government has in many ways
been a progressive employer, but we’re behind the private sector and 19 states, including
Alaska and Arizona, on this one.
In his testimony, Mr. Berry estimated that providing health insurance and survivor benefits to the
same-sex domestic partners of both current federal employees and federal annuitants would cost
the federal government $56 million in 2010. He expressed a view that,
This marginal increased cost—which equates to about 2-tenths of a percent of the entire cost
to the Federal Government of [f]ederal employee health insurance—would be funded by the
additional Government contribution payments for self and family health insurance plans.
This includes $19 million in savings because retirees who elect survivor benefits for their
domestic partners will experience a reduction in their annuity payments.58
Mr. Berry added that extending life, dental, and vision benefits to the same-sex partners of federal
employees would not increase federal outlays because the costs “would be borne entirely by the
gay and lesbian employees who enroll their partners in those benefit plans.” He recommended to
the committee that the bill be amended to extend federal benefits to the same-sex domestic
partners of federal annuitants and suggested that the committee clarify the tax status of the federal
benefits.
On July 30, 2009, the subcommittee conducted a markup on the bill. During the markup,
Representatives opposed to the bill said extending benefits to same-sex domestic partners was in
direct violation of DOMA.59 Other Members questioned whether same-sex couples should have
to be together for a specific length of time before they could be eligible to apply for benefits.60
The legislation currently does not require a same-sex couple to be together for a specific length of
time prior to becoming eligible for federal benefits.61 Federal employees who are married to
someone of the opposite gender generally can apply for benefits immediately upon their marriage.

57 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post
Office, and the District of Columbia, The Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R.
2517, 111th Cong., 1st sess., July 8, 2009, http://www.opm.gov/News_Events/congress/testimony/111thCongress/
07_08_2009.asp.
58 Ibid. H.R. 2517 and S. 1102 would not have extended benefits to the same-sex partners of federal annuitants. In his
testimony, however, Mr. Berry recommended that the committee amend the existing bill language to include federal
annuitants.
59 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on the Federal Workforce,
Post Office, and District of Columbia, Markup of H.R. 2517 “The Domestic Partners Benefits and Obligations Act of
2009”
H.R. 2517, 111th Cong., 1st sess., July 30, 2009, statement of Representative Mark
Souter,http://republicans.oversight.house.gov/index.php?option=com_content&view=article&id=276:7-30-09-markup-
of-hr-2517-qthe-domestic-partners-benefits-and-obligations-act-of-2009q&catid=13&Itemid=&layout=default&date=
2009-11-01.
60 Ibid., statement of Representative Dan Burton.
61 There are exceptions to this immediate application. The Civil Service Retirement System, for example, requires a
(continued...)
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At the same markup, proponents of the legislation said the bill would ensure “equal pay for equal
work” among federal employees.62 Proponents also stated that the federal government needed to
compete with the private sector for the most effective and efficient employees. According to
proponents, not providing benefits to employees’ same-sex partners could place the federal
government at a competitive disadvantage.63
During the markup session, the subcommittee adopted an amendment making technical changes
to the bill that were recommended by OPM. On July 30, 2009, the subcommittee voted to report
the bill favorably to the full committee.
At the full committee’s markup session on November 18, 2009, similar arguments were made on
both sides of the debate. Proponents said the bill would make the federal government a “model
employer” and “foster a more inclusive workplace so we can attract the best and brightest to
federal government.”64
Opponents stated that enacting the bill would be fiscally irresponsible, and would prompt a hike
in health care premium costs for all federal employees.65 Furthermore, opponents called the bill
“reckless deficit spending” at a time of high unemployment rates and financial difficulty for many
Americans.66
At the markup, the committee adopted two amendments. One amendment clarified the process by
which federal employees would apply and qualify for same-sex domestic partner benefits. A
second amendment would require the Government Accountability Office (GAO) to conduct a
study to determine whether the insurance premiums for all federal employees would increase as a
result of the bill. In addition, the amendment would require GAO to study the bill’s effects on
recruitment and retention rates in the federal workforce. The committee voted to report the bill
favorably the same day. On January 22, 2010, the bill was reported.67 On January 29, 2010, bill
was automatically discharged from the House Administration and Judiciary committees pursuant
to a deadline set by the Speaker of the House. On that same day, the bill was placed on the Union
Calendar. No further action was taken on H.R. 2517.

(...continued)
federal employee to be married to his or her spouse for at least nine months before the spouse would be eligible to
receive survivor benefits. See U.S. Office of Personnel Management, “Retirement Information and Services,”
http://www.opm.gov/retire/pre/death/index.asp.
62 Ibid., Representative Stephen A. Lynch.
63 Ibid.
64 U.S. Congress, House Committee on Oversight and Government Reform, Markup of H.R. 2517 “The Domestic
Partners Benefits and Obligations Act of 2009”
H.R. 2517, 111th Cong., 1st sess., November 18, 2009, statement of
Representative Edolphus Towns, http://www.youtube.com/watch?v=RWCbE1J5us4. (3 minute mark).
65 Ibid., statement of Representative Darrell Issa.
66 Ibid.
67 U.S. Congress, House Committee on Oversight and Government Reform, Domestic Partnership Benefits and
Obligations Act of 2009
, report to accompany H.R. 2517, 111th Cong., 2nd sess., January 22, 2010, H.Rept. 111-400,
Part 1 (Washington: GPO, 2010).
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S. 1102
On May 20, 2009, S. 1102 was referred to the Senate Committee on Homeland Security and
Governmental Affairs. On October 15, 2009, the committee conducted a hearing on the
legislation. In his opening statement, Chairman Joseph Lieberman, co-sponsor of the legislation,
said the bill would prove to be an asset to a federal government facing a large wave of
retirements:
Senator Collins and I introduced this bill because we believe it is the fair and right thing to
do, and also because it makes practical sense for the federal government as an employer. As
we approach a generational change in the federal workforce that will see the retirement of
approximately one-third of all federal employees, it seems to us to be just plain sensible to
do all we can to attract and retain the “best and the brightest” to serve in the years ahead.
This legislation would help accomplish that.68
Senator Collins, co-sponsor of S. 1102, said the legislation would help the federal government
hire the most effective federal workers:
When it comes to employment, the federal government must compete with the private sector
in attracting the most qualified, skilled, and dedicated employees. Today, health, medical,
and other benefits are a major component of any competitive employment package.69
On December 16, 2009, the committee voted to report the bill favorably, but with amendments
that are similar to those included in the House bill.70 At the meeting where the vote took place,
Senator Collins reportedly expressed concerns that OPM had not yet revealed how it would cover
any increased costs associated with enacting the bill,71 but she, nonetheless, voted to favorably
report the bill. No further action was taken on S. 1102.
Executive Branch Action
Although many federal benefits cannot be extended to the same-sex partners of federal employees
under current law, certain agencies have extended other benefits. Certain agencies, for example,
reportedly permit a federal employee in a same-sex relationship to use sick leave to care for an
ailing partner.72
In addition, on June 17, 2009, one day after President Obama released his memorandum on same-
sex benefits, Secretary of State Hillary Clinton directed her agency to extend a variety of

68 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, S. 1102, The “Domestic
Partnership and Benefits and Obligation Act of 2009,” S. 1102, 111th Cong., 1st sess., October 15, 2009,
http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=d5347e63-e680-4ebf-8b9d-
5eb5f8cd5e79.
69 Ibid.
70 Leah Nylen, “Senate Committee Approves Domestic Partners Bill,” CQ.com, December 16, 2009,
http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/committees/111/committees111-
2009121600268787.html@committees&metapub=CQ-COMMITTEEMARKUPS&searchIndex=0&seqNum=1.
71 Joe Davidson, “Same-sex Benefits Advance, Quietly,” The Washington Post, December 17, 2009,
http://www.washingtonpost.com/wp-dyn/content/article/2009/12/16/AR2009121604178_pf.html.
72 “Obama OKs Some Benefits for Employees’ Same-sex Partners,” CNN.com, June 17, 2009, http://www.cnn.com/
2009/POLITICS/06/16/obama.same.sex.benefits/index.html.
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relocation, medical, and other benefits to the partners of employees in same-sex, committed
relationships. Certain federal benefits that are not explicitly prohibited by law may be extended to
such individuals at the discretion of the Department of Justice and each individual department or
agency head.
Extension of Benefits Not Affected by DOMA
On June 17, 2009, President Barack Obama released a memorandum requesting that the Secretary
of State and the Director of OPM, in consultation with the Department of Justice, “extend the
benefits they have respectively identified to qualified same-sex domestic partners of Federal
employees where doing so can be achieved and is consistent with Federal law.”73 The
memorandum also directed all executive departments and agencies to review and evaluate their
existing employee benefits to determine “which may legally be extended to same-sex partners.”74
President Obama offered several reasons for releasing this memorandum. In his public statement
accompanying the memorandum’s release, he said that his Administration “was not authorized by
existing Federal law to provide same-sex couples with the full range of benefits enjoyed by
heterosexual married couples.” He also said that extending benefits to same-sex partners was “the
right thing to do.”75 The President said many private companies already offer such benefits to
same-sex domestic partners, which “helps them compete for and retain the brightest and most
talented employees. The Federal Government is at a disadvantage on that score right now, and
change is long overdue.”76
The memorandum required each executive department and agency to provide to the Director of
OPM a report that included “a review of the benefits provided by their respective departments
and agencies” in order “to determine what authority they have to extend such benefits to same-
sex domestic partners of Federal employees.” Agencies were given 90 days to complete their
reviews. In addition, the memorandum instructed OPM to issue guidance regarding compliance
with anti-discrimination policies in the hiring of federal employees (5 U.S.C. § 2302(b)(10)). The
memorandum was explicit in stating that all extensions of benefits and protections be “consistent
with Federal law.” No extension of benefits, therefore, could violate DOMA or any other law
prohibiting the extension of benefits to same-sex domestic partners. The agency reports were due
on September 15, 2009. OPM reviewed these reports and worked with the Department of Justice
(DOJ) to recommend the extension of several federal benefits to the partners of federal employees
in same-sex relationships.

73 President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, The White House:
Office of the Press Secretary, Subject: Federal Benefits and Non-Discrimination, June 17, 2009,
http://www.whitehouse.gov/assets/documents/2009fedbenefits_mem_rel.pdf.
74 The White House: Office of the Press Secretary, “Statement by the President on the Presidential Memorandum on
Federal Benefits and Non-Discrimination, and Support of the Lieberman-Baldwin Benefits Legislation,” press release,
June 17, 2009, http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-the-Presidential-
Memorandum-on-Federal-Benefits-and-Non-Discrimination-and-Support-of-the-Lieberman-Baldwin-Benefits-
Legislation/.
75 Ibid.
76 Ibid.
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On June 2, 2010, President Obama released another memorandum that detailed the benefits OPM
and DOJ recommended for extension to same-sex partners.77 Among the newly extended benefits
was clarification that the child of a same-sex partners falls “within the definition of ‘child’ for
purposes of [f]ederal child-care subsidies, and, where appropriate, for child-care services.”78 The
memorandum required the following benefits be extended:
• A same-sex partner will be deemed to have an insurable interest in a federal
employee with respect to survivor annuities under the Civil Service Retirement
System and the Federal Employees’ Retirement System (5 U.S.C. §§ 8339 and
8420). The employee will no longer have to file an affidavit with OPM certifying
that his or her domestic partner is financially dependent on the employee.
• A federal employee in a same-sex partnership is now eligible for 24 hours of
unpaid leave when the child of a same-sex partner is dismissed early from school,
a routine medical emergency occurs, or the same-sex partner or his or her child
needs medical care.
• The same-sex partner of a federal employee is now eligible to collect travel and
relocation payments incurred as a result of their partner’s new job or
reassignment. The benefit is also extended to a same-sex partner’s children.
• A same-sex partner and his or her children are now eligible to join a credit union,
use a fitness facility, or participate in planning and counseling services that are
currently extended to an opposite-sex spouse and family members.
The memorandum also required OPM to report annually to the President “on the progress of the
agencies in implementing this memorandum until such time as all recommendations have been
appropriately implemented.”79 Pursuant to the memorandum, the benefit extensions were
effective immediately.
Changes in Legal Defense of DOMA
On February 23, 2011, the Obama Administration announced it would no longer “defend the
constitutionality of Section 3 of DOMA” in certain cases.80 Section 3 is the portion of DOMA that
defines marriage for federal purposes as only between a man and a woman. While the
announcement directly affects two pending lawsuits—Pedersen v. OPM and Windsor v. United
States
—it is unclear what effects it could have on other pending litigation. Attorney General Eric
J. Holder said that the Administration had previously defended Section 3 of DOMA in federal
court cases “in which binding circuit court precedents hold that laws singling out people based on

77 Barack Obama, Memorandum for the Heads of Executive Department and Agencies, The White House, Office of the
Press Secretary, Extension of Benefits to Same-sex Domestic Partners of Federal Employees, Washington, D.C., June
2, 2010, http://www.whitehouse.gov/the-press-office/presidential-memorandum-extension-benefits-same-sex-domestic-
partners-federal-emplo.
78 Ibid., p. 1.
79 Ibid., p. 3.
80 U.S. Department of Justice, “Statement of the Attorney General on Litigation Involving the Defense of Marriage
Act,” press release, February 23, 2011, http://www.justice.gov/opa/pr/2011/February/11-ag-222.html.
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sexual orientation, as DOMA does, are constitutional if there is a rational basis for their
enactment.”81 Mr. Holder’s statement continued:
While the President opposes DOMA and believes it should be repealed, the Department has
defended it in court because we were able to advance reasonable arguments under that
rational basis standard.82
The Second Circuit, the circuit in which the Pedersen and Windsor cases are now pending,
however, has “no established or binding standard for how laws concerning sexual orientation
should be treated.”83 Holder continued:
After careful consideration, including a review of my recommendation, the President has
concluded that given a number of factors, including a documented history of discrimination,
classifications based on sexual orientation should be subject to a more heighted standard of
scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally
married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given
that conclusion, the President has instructed the Department not to defend the statute in such
cases.84
The Administration will only defend Section 3 of DOMA in cases where this new “heightened
standard of scrutiny” cannot be applied.85 DOJ will continue to “remain parties to the cases and
represent the interests of the United States throughout the litigation.”86
Mr. Holder ended his statement by saying “the wisdom and legality of Section 3 of DOMA will
continue to be the subject of both extensive litigation and public debate, [but] this Administration
will no longer assert its constitutionality in court.”87 Mr. Holder sent separate notification of the
Administration’s position to congressional leadership. Congress can decide whether to defend
Section 3 of DOMA in the pending cases. It is unclear the process by which such a defense would
occur.
At a press briefing shortly after Mr. Holder published his statement on Section 3 of DOMA,
White House Press Secretary Jay Carney said,
[T]he United States government will still be a party to [the Pedersen and Windsor] cases in
order to allow those cases to proceed so that the courts can make the final determination
about its constitutionality, and also, so that other interested parties are able to take up the
defense of the Defense of Marriage Act if they so wish—and in particular, Congress or
members of Congress who want to proceed and defend the law in these cases.
The administration will do everything it can to assist Congress if it so wishes to do that. We
recognize and respect that there are other points of view and other opinions about this. It is
also important to note that the enforcement of the Defense of Marriage Act continues—the

81 Ibid.
82 Ibid.
83 Ibid.
84 Ibid.
85 Ibid.
86 Ibid.
87 Ibid.
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President is constitutionally bound to enforce the laws and enforcement of the DOMA will
continue.88
Cost Estimates
Office of Personnel Management
As noted earlier in this report, OPM estimates that extending health insurance and survivor
benefits to the same-sex domestic partners of current federal employees as well as annuitants
would have cost $56 million in 2010.
The Williams Institute
The Williams Institute—an independent and non-partisan think tank at the University of
California, Los Angeles School of Law that researches sexual orientation laws and public
policy—released a study in September 2008, that estimated H.R. 2517 and S. 1102 would cost the
federal government $41 million in its first year and $675.1 million over 10 years.89 The study
estimated that 30,185 same-sex domestic partners of federal employees and their children would
be eligible for benefits. Of the more than 30,000 people who would be eligible, the study
estimated that 14,436 employees with same-sex partners would move from not being enrolled or
single enrollment to family enrollment.90 Family enrollment would render the child of a same-sex
partner eligible for certain benefits. According to the institute’s study, this extension of benefits
could increase federal discretionary spending by $51.7 million in the first year and $666 million
over 10 years.91
This cost estimate does not include USPS employees. About 28% of the civilian federal
workforce is employed by the Postal Service, which pays for employee benefits using revenue
earned. USPS pays a greater share of the health care premium for its employees than the rest of
the federal government pays for non-postal federal civilian employees. In 2008, for example, the
government’s share of a non-postal employee’s health care costs was $4,600, if that employee
enrolled in family coverage. The federal government’s share for the same family coverage plan
for a USPS employee was $5,244 in 2008. According to the institute, extending federal benefits to

88 The White House Office of the Press Secretary, The White House Office of the Press Secretary, “Press Briefing by
Press Secretary Jay Carney, 2/23/2011,” press release, February 23, 2011, http://www.whitehouse.gov/the-press-office/
2011/02/23/press-briefing-press-secretary-jay-carney-2232011.
89 Naomi G. Goldberg, Christopher Ramos, and M.V. Lee Badgett, The Fiscal Impact of Extending Federal Benefits to
Same-Sex Domestic Partners
, The Williams Institute, Executive Summary, September 2008,
https://www.policyarchive.org/bitstream/handle/10207/10871/S2521FiscalAnalysis_WilliamsInst.pdf?sequence=1.
90 This estimate, according to the congressional testimony from one of its authors, takes into account that some federal
employees in same-sex partner relationships are sometimes the partner of another federal employee. Also, other federal
employees may have a same-sex partner who chooses to enroll in a health care plan provided by their state, local
government, or tribal employer, or a private employer. U.S. Congress, House Committee on Oversight and Government
Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, Domestic Partnership
Benefits and Obligations Act of 2009
, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO,
2009), http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf.
91 The measures are estimated to increase federal tax revenue in the first year by $10.7 million and $118.4 million over
ten years, thereby reducing the first-year costs for the extension to $41 million and ten-year costs to $675.1 million.
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the same-sex partners of USPS employees could cost the Postal Service $259.2 million over 10
years.
More specifically, the institute report estimated that extending federal healthcare benefits to the
same-sex domestic partners of federal employees and their children could increase spending by
$43.5 million in the first year and $575.7 million over 10 years.92 Extending survivor benefits to
the same-sex domestic partners of federal employees was expected to save the federal
government $108 million over 10 years.93 The extension of disability benefits to employees in
same-sex partnerships was estimated to increase federal spending by $10.2 million over 10 years,
and the costs associated with work-related travel and mandatory relocation were estimated to
increase by $80.2 million over 10 years.
Similar to Mr. Berry’s viewpoint, the institute report found that the extension of dental and vision
insurance to the same-sex domestic partners of federal employees would not increase government
outlays because federal employees are responsible for the total cost of the premiums for those
benefits. Similarly, extending life insurance benefits is not expected to increase federal costs.
The report stated that extending the Family and Medical Leave Act to include employees in same-
sex partnerships would not directly increase personnel costs of the federal government but “there
may be other peripheral costs associated with an employee’s leave, such as accommodation of an
employee’s absence either through increasing the workloads of other employees, hiring temporary
workers, or reduced productivity.”94
M.V. Lee Badgett, a professor of economics at the University of Massachusetts Amherst who is
also the research director of the institute, said in her testimony before the House Committee on
Oversight and Government Reform that extending benefits to same-sex domestic partners may
also reduce federal costs in employee turnover because gay or lesbian employees would be less
likely to leave a federal position in favor of a job that did not offer such benefits.95
Table 1 below shows the institute’s projected costs if a variety of federal benefits were extended
to federal employees involved in same-sex domestic partnerships.


92 Extending survivor benefits to same-sex partners of federal employees is anticipated to result in a short-term
reduction in annuity payments prompted by the spousal reduction applied to pay for survivor benefits.
93Ibid., 2.
94 Ibid, p. 8.
95 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post
Office, and the District of Columbia, Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R.
2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO, 2009), http://republicans.oversight.house.gov/images/
stories/Hearings/pdfs/20090708Badgett.pdf.
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Table 1. Estimated Costs to the Federal Government if Benefits Were Extended to Same-Sex Domestic Partners
in millions of dollars

Year
1
2 3 4 5 6 7 8 9 10 Total
Cost
(Over
10
Years)
Direct Spending
Retiree Health Benefits
0
3.9
8.1
12.8
18.1
24.2
30.7
37.9
45.5
53.9
235.1
Reduction in Annuity Payments
0 -2.2 -4.4 -6.7 -9.1 -11.8
-14.4 -17.1 -19.8 -22.6
-108.1
to Retirees and Survivors
Total, Direct Spending
0 1.7 3.7 6.1 8.9 12.4
16.3 20.8 25.7 31.4
127.0
Discretionary Spending
Health
Insurance
43.5 46.1 48.9 51.9 55.1 58.5 62.0 65.8 69.8 74.1
575.7
Dental
&
Vision
Benefits
0 0 0 0 0 0 0 0 0 0
0
Family Medical Leave
0 0 0 0 0 0 0 0 0 0
0
Provisions
Federal
Group
Life
Insurance 0 0 0 0 0 0 0 0 0 0
0
Long
Term
Care
0 0 0 0 0 0 0 0 0 0
0
FECA
Disability
0.9 0.9 1.0 1.0 1.0 1.0 1.1 1.1 1.1 1.1
10.2
FECA
Death
* * * * * * * * * *
.36
Travel,
Transportation
7.3 7.4 7.6 7.8 7.9 8.1 8.3 8.5 8.6 8.8
80.2
Total, Discretionary Spending
51.7 54.5 57.5 60.7 64.1 67.6 71.4 75.4 79.6 84.1
666.5
Postal Service Costs (Off-Budget)
Health
Insurance
16.9 17.9 19.0 20.2 21.4 22.7 24.1 25.6 27.2 28.8
223.9
Dental
&
Vision
Benefits
0 0 0 0 0 0 0 0 0 0
0
Family Medical Leave
0 0 0 0 0 0 0 0 0 0
0
Provisions
Federal
Group
Life
Insurance 0 0 0 0 0 0 0 0 0 0
0
Long
Term
Care
0 0 0 0 0 0 0 0 0 0
0
FECA
Disability
0.36 0.37 0.37 0.38 0.39 0.40 0.41 0.42 0.43 0.44
4.0
FECA
Death
* * * * * * * * * *
.14
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Year
1
2 3 4 5 6 7 8 9 10 Total
Cost
(Over
10
Years)
Travel,
Transportation
2.8 2.9 3.0 3.0 3.1 3.2 3.2 3.3 3.4 3.4
31.2
Total, Postal Service
20.1 21.2 22.4 23.6 24.9 26.3 27.8 29.3 31.0 32.7
259.2
Tax Revenue
Tax Revenue from “Imputed
-10.7 -11.0 -11.2 -11.4 -11.7 -11.9 -12.2 -12.5 -12.8 -13.0
-118.4
Income” Taxation
Total, Tax Revenue
-10.7 -11.0 -11.2 -11.4 -11.7 -11.9 -12.2 -12.5 -12.8 -13.0
-118.4
Total
Federal
Budget
Cost 41.0 45.3 50.0 55.4 61.3 68.1 75.5 83.7 92.6 102.4
675.1
Source: The Williams Institute, “The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners: Executive Summary,” September 2008, p. 13,
http://www.law.ucla.edu/williamsinstitute/publications/S2521FiscalAnalysis_WilliamsInst.pdf.

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The Congressional Budget Office
On December 17, 2009, CBO released its cost estimate for H.R. 2517, stating that enacting the
legislation “would increase direct spending by $596 million through 2019” and discretionary
spending would increase $302 million over the same period of time.96 CBO estimated that the
legislation would have no direct effect on federal revenues. The estimate assumed that if the bill
were enacted, from 2011 to 2019, approximately 5,200 non-postal annuitants per year would
switch from an individual insurance plan to a family plan, raising direct spending by $348 million
over that time.97 During that same time, CBO estimated that discretionary spending would
increase by $266 million because 4,000 non-postal employees per year would switch from
individual to family plans. Federal Employment Compensation Act benefits were estimated to
increase direct spending by $35 million over the 2010-2019 period, as 1,000 employees per year
were estimated to sign up for the benefit. CBO estimated that 1,500 employees per year through
2019 would sign up for survivor annuities in either the Federal Employees’ Retirement System or
the Civil Service Retirement System. In addition, CBO estimated that roughly 2,000 annuitants
would sign up for the survivor annuities. The result would be that the employees would receive
smaller retirement annuities, “thereby lowering direct spending.”98 The reduction in direct
spending, however, would be offset by payouts to the surviving partners of annuitants. In the
short term, CBO estimated that the extension of survivor annuities will decrease direct spending
by $27 million. Table 2 shows the CBO estimates.
Table 2. CBO’s Estimated Changes in Federal Outlays if H.R. 2517 or S. 1102 Were
Enacted
Estimated
Additional
Cost in 2011
Employee
(first full year
Cost from

Enrollment
of enactment)
2010 to 2019
Federal Employees Health Benefit Program



Non-Postal Employees (discretionary spending)
4,000 per year
$17 million
$266 milliona
Non-Postal Annuitants (direct spending)
5,200 per year
$18 million
$348 milliona
Federal Employment Compensation (direct spending)
1,000 per year
$3 million
$35 million
Survivor Annuities (direct spending)
1,500 per year
($11 million)
($27 million)
Travel and Relocation Costs (discretionary spending)
N/A
$1 million
$6 million
Source: U.S. Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009,
December 17, 2009, http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf.

96 Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, December 17,
2009, p. 1, http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf.
97 CBO also estimated that about 2,000 USPS employees would move from individual to family health benefits if H.R.
2517 were enacted. USPS spending is categorized as off-budget because the entity is largely self-funded through the
sale of stamps and other postal items. The enactment of H.R. 2517 would increase off-budget costs by $242 million
through 2019, according to the CBO estimate. Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits
and Obligations Act of 2009
, p. 3.
98 Ibid., p. 4.
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Notes: Al per year estimates are for the years 2010 to 2019. This table does not include off-budget costs
associated with the U.S. Postal Service, which uses revenue from the sale of postal stamps and other services to
pay for its employee benefits.
a. Costs for FEHBP were estimated from 2011 through 2019.
Analysis
The 112th Congress may address issues related to the extension of benefits to the partners of
federal employees in same-sex relationships. The Obama Administration has pledged its support
for extending such benefits, within existing laws. OPM has testified in support of previously
pending legislation. At the same time, OPM reportedly decided not to extend benefits to the
same-sex spouses of two federal employees in the judicial branch despite federal court orders to
do so. The agency reportedly stated that extending such benefits would be a violation of existing
federal law (DOMA).99 Although the Administration has stated it will not defend a section of
DOMA in the Second Circuit, it has stated that it intends to continue enforcing the law.
Congress may act to prohibit same-sex partners of federal employees from receiving federal
benefits. Prohibiting the extension of certain federal benefits would reinforce current statutes,
which state that same-sex partners do not qualify as spouses and, therefore, should not receive
certain federal benefits. Such action could also save nearly $600 million over eight years.100
According to Dr. M.V. Lee Badgett, the research director of The Williams Institute, 20 states and
the District of Columbia offer a variety of benefits to the same-sex partners of their employees.101
In testimony before the House Committee on Oversight and Government Reform, she said that
“[m]ore than 250 cities, counties, and other local government entities cover domestic partners of
other public employees” and “[i]n the private sector, almost two-thirds of the Fortune 1000, and
83% of Fortune 100 companies also provide these benefits.”102 If Congress acts not to extend
federal benefits to the same-sex partners of employees, however, it may be more difficult to
recruit and retain high-performing employees who are in or who may enter into same-sex
relationships. Such employees may instead choose to work for state, local, or tribal governments
or private companies that provide benefits to same-sex domestic partners.
On the other hand, Congress may consider that competing for the most effective and efficient
workforce requires the federal government to offer benefits similar to those available in other
levels of government and the private sector.103 To compete with local and state governments as

99 Joe Davidson, “OPM Defies Order on Same-sex Benefits,” Washington Post, December 22, 2009, pp.
http://www.washingtonpost.com/wp-dyn/content/article/2009/12/21/AR2009122103240.html.
100 The Williams Institute study, p. 1.
101 These states are Alaska, Arizona, California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Montana,
Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and
Wisconsin. U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal
Workforce, Post Office, and the District of Columbia, Domestic Partnership Benefits and Obligations Act of 2009,
hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO, 2009),
http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf.
102 Ibid, p. 1.
103 As noted earlier in this report, in congressional testimony Ms. Badgett said more than 250 cities, counties, and other
local governments provide same-sex domestic partners with benefits. In the private sector, almost two-thirds of the
Fortune 1000, and 83% of Fortune 100 companies provide such benefits. U.S. Congress, House Committee on
Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia,
(continued...)
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well as private companies, Congress may decide to pass legislation similar to that introduced
during the 111th Congress.
As discussed earlier in this report, President Obama’s June 2, 2010, memorandum to the heads of
government departments and agencies requires OPM to create and present to the President an
annual report on agency progress toward the extension of certain benefits to same-sex domestic
partners.104 Congress may choose to require OPM concurrently to send this report to the
appropriate committees of jurisdiction in each chamber of Congress to assist in congressional
oversight of implementation and extension of such benefits. Congress may also choose to require
OPM to calculate the costs associated with the extension of the new benefits and include that
information in the annual report.
Congress may choose to defend Section 3 of DOMA in court. It is unclear the process by which
such a defense would occur.
The Obama Administration’s decision not to defend Section 3 of DOMA may create inequities
among federal workers with same-sex partners. Federal employees who live within the
jurisdiction of the Second Circuit (which includes Connecticut, New York, and Vermont) may be
entitled to receive benefits for their same-sex partners.105 Federal employees outside of this
jurisdiction, however, may not be given access to identical benefits. This inequity could lead to
legal challenges from employees seeking equal access to benefits for equal work.
Specific Issues
Application to Every State
If Congress acts to extend these benefits, it may additionally consider whether the legislation’s
existing language would prohibit same-sex couples who are legally married, according to state
law, from receiving the benefits.106 Both the House and Senate legislation in the 111th Congress,
as introduced, defined the term “domestic partner” as “an adult unmarried person living with
another adult unmarried person of the same sex in a committed, intimate relationship.” Such
language could prohibit married same-sex couples from being included in the extension of federal
benefits provided for in the bills. The bill reported from the House Committee on Oversight and
Government Reform, however, modified the definition of “domestic partner” to “an individual

(...continued)
Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009
(Washington: GPO, 2009), http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf.
104 The White House: Office of the Press Secretary, “Statement by the President on the Presidential Memorandum on
Federal Benefits and Non-Discrimination, and Support of the Lieberman-Baldwin Benefits Legislation,” press release,
June 17, 2009, p. 3.
105 Within Massachusetts, absent any additional judicially activity, the partners of federal employees in same-sex
marriages may be entitled to receive certain federal benefits. On July 8, 2010, a U.S. District Court in Massachusetts
found Section 3 of DOMA unconstitutional in two companion cases (Gill v. Office of Personnel Management, 699
F.Supp. 2d 374 (D. Mass. 2010) and Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234
(D. Mass. 2010)).
106 Applying a law to only certain states, however, may be unconstitutional, as it could be considered an unequal
application of the law.
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who is in a domestic partnership.”107 The term domestic partnership, according to the reported
version of the bill, is defined as the nine qualifications outlined earlier in this report. Among those
qualifications were that both individuals in the relationship were of the same sex, and that both
individuals were at least 18 years old and that the partners share responsibility for one another’s
common welfare and financial obligations. The Senate Homeland Security and Governmental
Affairs Committee’s reported version of the bill defines “domestic partner” as “either of the
individuals in a domestic partnership.”108 “Domestic partnership” is then defined as “a
relationship between 2 individuals of the same sex, at least 1 of whom is an employee” and who
qualifies under the requirements delineated in the legislation.109
Congress may act to use the definition of domestic partner as it was introduced in each chamber’s
bill, but restrict the application only to states where same-sex marriage is not recognized. For
example, Congress could require same-sex partners residing in states that allow same-sex
marriage to be married in order to qualify for federal benefits. As noted earlier, same-sex
marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, the District of Columbia,
and Vermont.110 Unmarried same-sex partners who reside in these states have the option to get
married. By requiring partners in these states to get married prior to being eligible for benefits,
Congress could then rely on state laws to determine the creation and dissolution of the union—
adopting a legal construct similar to the one currently used for opposite-sex marriages. Congress
may determine that providing same-sex partner benefits to unmarried same-sex partners in these
states is unnecessary because the couple could get married and, therefore, qualify for benefits as
married spouses. The federal government currently does not provide federal benefits to the
opposite-sex partners of federal employees who are not married.
Extending Benefits Beyond Same-Sex Partners
Some federal employees may not be married to their domestic partners, whether that partner is of
the same gender or a different gender. As noted above, the domestic partners of these employees
are not eligible to receive many federal benefits because they do not qualify as a “spouse,”
pursuant to federal law. The House Oversight and Government Reform Committee’s report to
accompany H.R. 2517 said:
federal employees living with opposite sex domestic partners have the option of marriage,
which would entitle the employee and his or her spouse to the receipt of these benefits. Same
sex partners may only get married in a handful of states. Even in these cases, the federal
government does not recognize the marriage because of the Defense of Marriage Act
(DOMA). H.R. 2517 does not affect DOMA. Therefore, under current OPM guidelines,
same sex partners, even where married, are ineligible to receive these benefits as spousal
benefits.111

107 H.Rept. 111-400, part 1, p. 3.
108 Draft version of bill provided to the author by the Senate Committee on Homeland Security and Governmental
Affairs.
109 Ibid.
110 On December 15, 2009, Washington, D.C.’s City Council passed legislation that would legalize gay marriage.
Congress had 30 legislative days to veto the legislation. On March 9, 2010, same-sex couples were legally permitted to
get married.
111 H.Rept. 111-400, Part 1, p. 26 (footnote 6).
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Congress may choose to extend benefits only to those in same-sex domestic partnerships. This
limitation would control the costs associated with extending partner benefits. Congress, however,
may also consider extending benefits to the domestic partner of any federal employee, regardless
of that partner’s gender. Such action may attract additional highly qualified candidates to public
service. Such action also would permit an employee to qualify for federal benefits without having
to identify the gender of his or her domestic-partner. Some employees may be hesitant to identify
the gender of their domestic partner, even if the affidavit is confidential. The extension of benefits
to such partners regardless of gender, however, could increase the costs of the FEHBP.
OPM Technical Amendments
In his testimony on July 8, 2009, before the House Committee on Oversight and Government
Reform, OPM Director Berry endorsed H.R. 2517, but said there were several technical changes
that could be made to the bills prior to their enactment. These included reconsidering whether
OPM should be tasked with maintaining and ratifying employee’s affidavits, ensuring that same-
sex domestic partners would receive the same benefits and have the same requirements placed on
them as a spouse of the opposite sex, and clarifying the tax status of these newly extended
benefits.112
OPM as Clearinghouse
H.R. 2517 and S. 1102 would have required an employee seeking to enroll their same-sex partner
in a federal benefit program to first “file an affidavit of eligibility for benefits and obligations
with the Office of Personnel Management.” Mr. Berry, in his testimony, said that OPM officials
“do not think it is practicable for OPM to play this role.” He explained:
Each Federal agency carries out human resources management functions, including benefits
enrollment and payroll deductions, for its own employees. Requiring affidavits to be filed
with OPM would be at odds with current provisions of law and regulation governing Federal
employee benefits, which recognize that OPM is not a central clearinghouse for all Federal
employees.113
Congress may choose to enact legislation that would make OPM the central clearinghouse for the
affidavits required to qualify for same-sex partner benefits. Designating OPM as the only agency
with the authority to maintain those records could increase employee privacy, making it less
likely that federal employees’ private information is made public. Giving each individual agency
the authority to maintain the affidavits could make the documents more susceptible to
information leaks, as each agency could have a different system of recordkeeping. In addition,
giving individual agencies the authority to file the affidavits makes it more likely that federal
employees applying for the benefits may know the person with whom they must file the record,
making the process less anonymous. Some federal employees may be less likely to enroll in the
program if they must identify themselves as gay or lesbian in front of a co-worker. On the other
hand, Congress may determine that OPM’s mission does not include this type of government-
wide recordkeeping role related to federal benefits. Giving individual agencies the authority to

112 Ibid., p. 3.
113 Ibid.
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certify employee affidavits would not task OPM with a responsibility it may not have the capacity
to undertake.
Making Benefits and Obligations Identical
OPM Director Berry also expressed concerns that the H.R. 2517 and S. 1102 did not include
prescriptive language that would ensure the same treatment of a former spouse as a former
domestic partner. According to Mr. Berry:
The bill provides that, if a domestic partnership dissolves except by death, the former
domestic partner will have the same rights and obligations as a former spouse. By law, a
former spouse is eligible to enroll in the Federal Employees Health Benefits (FEHB)
Program if he or she meets certain eligibility criteria. The former spouse must be entitled to a
portion of an annuity and must not have remarried before the age of 55.
Under H.R. 2517, there is no language allowing [OPM] to enforce a similar obligation for
the former domestic partner under the same circumstances. Entitlements and obligations for
former spouses under the involuntary division of property are attributed to court orders with
respect to divorce, annulment, and legal separation. In the absence of domestic relations law
for domestic partnerships in many States, we believe that we would need more prescriptive
language in the bill to avoid potential legal hurdles that could occur.114
Congress may act to clarify whether eligibility criteria identical to that for former opposite-sex
spouses of federal workers can be extended to the former same-sex domestic partners of federal
workers. It is unclear how the federal government would enforce a law that prohibited a former
same-sex partner of a federal employee from receiving federal benefits if they entered into a new
domestic partnership before the age of 55.115 Because same-sex domestic partners in many states
cannot get married or remarried, the federal government may have to consider different benefit
eligibility criteria for the same-sex former partners of federal employees.
Tax Status of Benefits
Currently, an opposite-sex spouse who receives federal benefits does not have to pay taxes on his
or her benefits. Neither H.R. 2517 nor S. 1102 stated whether the same-sex domestic partners of
federal employees who chose various benefits would have had to pay taxes on those benefits.
Congress has the authority to grant identical tax status to same-sex partners as is provided to
opposite-sex spouses.

114 Ibid.
115 As noted earlier in this report, defining the “dissolution” of a same-sex relationship presents a variety of difficulties,
including determining when a partnership has ended. The reported versions of the H.R. 2517 and S. 1102 include a
change to statutory language that seeks to ensure that former same-sex domestic partners would be given the same
rights to a federal employee’s annuity as a former spouse.
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Author Contact Information

Wendy R. Ginsberg

Analyst in Government Organization and
Management
wginsberg@crs.loc.gov, 7-3933


Acknowledgments
Alison Smith, legislative attorney, contributed to this report.

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