Federal Benefits and the Same-Sex Partners of
Federal Employees
Wendy Ginsberg
Analyst in American National Government
John J. Topoleski
Analyst in Income Security
December 21, 2012
Congressional Research Service
7-5700
www.crs.gov
R42873
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Federal Benefits and the Same-Sex Partners of Federal Employees
Summary
The federal government provides a variety of benefits to its 4.4 million civilian and military
employees and 4.7 million civilian and military retirees. 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, federal employees may extend these
benefits to eligible spouses and children.
In 1996, Congress passed the Defense of Marriage Act (DOMA, P.L. 104-199; 1 U.S.C §7) “[t]o
define and protect the institution of marriage.” DOMA contains two provisions. The first
provision allows all states, territories, possessions, and Indian tribes to refuse to recognize an act
of any other jurisdiction that designates a relationship between individuals of the same sex as a
marriage. The second provision prohibits federal recognition of these unions for purposes of
federal enactments. Pursuant to DOMA, the same-sex partners of federal employees are not
eligible to receive federal benefits that are extended to the spouses of federal employees. An
estimated 34,000 federal employees are in same-sex relationships—including state-recognized
marriages, civil unions, or domestic partnerships.
The Obama Administration has extended certain benefits to the same-sex partners of federal
employees and annuitants—and argued that it has done so within the parameters of existing
federal statutes. On June 2, 2010, President Obama released a memorandum that extended
specific benefits to the same-sex partners of federal employees, including coverage of travel,
relocation, and subsistence payments.
Some Members of Congress argue that same-sex partners of federal employees should have
access to benefits afforded married, opposite-sex couples in order to attract the most efficient and
effective employees to federal service. Other Members of Congress argue that the law prohibits
the extension of such benefits, and, therefore, actions to distribute any spousal benefits to same-
sex couples is contrary to both the text and spirit of DOMA.
Congress has had a long-standing interest in overseeing the benefits provided to federal
employees. On the one hand, the federal government seeks to attract the most effective, highly
trained workforce to address technical and complex issues. On the other hand, finite resources can
present challenges when considering whether to extend benefits to federal employees. When
DOMA was enacted, the House report that accompanied the legislation stated that a primary goal
of the law was to “preserve scarce government resources.”
The Congressional Budget Office (CBO) estimated that extending benefits to the partners of
employees in same-sex relationships pursuant to S. 1910 would cost the federal government $144
million in discretionary spending between 2013 and 2022. CBO also estimated, however, that
extending the benefits could “limit future rate increases” in federal health care costs because
health care providers would be required to recover certain health care costs that previously went
unrecovered. These recovered costs could lower the federal government’s health care premiums.
In the 112th Congress, two bills have been introduced that, if enacted, would permit federal
employees to extend insurance, long-term care, and other benefits to same-sex partners. On
November 18, 2011, Senator Joseph Lieberman introduced S. 1910, the Domestic Partnership
Benefits and Obligations Act of 2011. That same day, Representative Tammy Baldwin introduced
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Federal Benefits and the Same-Sex Partners of Federal Employees
a companion bill, H.R. 3485, also called the Domestic Partnership Benefits and Obligations Act
of 2011, in the House. On May 16, 2012, S. 1910 was ordered to be reported favorably from the
Committee on Homeland Security and Governmental Affairs. H.R. 3485 was referred to multiple
committees, but no further action has been taken on the bill.
This report examines current policies on the application of benefits to the same-sex partners of
federal employees and reviews certain policy debates about the extension or removal of these
benefits. This report also presents data on the prevalence of same-sex partner benefits in the
private and public sector. This report focuses on federal benefits for same-sex partners and not on
same-sex relationships in general. For more information on the implementation of DOMA and
how it affects same-sex partnerships, see CRS Report RL31994, Same-Sex Marriages: Legal
Issues, by Alison M. Smith. For information on private sector employee benefit plans and same-
sex partner benefits, see CRS Report R41998, Same-Sex Marriage and Employee Benefit Plans:
Legal Considerations, by Jennifer Staman.
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Federal Benefits and the Same-Sex Partners of Federal Employees
Contents
Introduction ...................................................................................................................................... 1
The Defense of Marriage Act and Federal Benefits ......................................................................... 3
Executive Branch Actions to Extend Benefits to Same-Sex Partners of Federal
Employees .................................................................................................................................... 4
The First Memorandum ............................................................................................................. 5
The Second Memorandum ........................................................................................................ 5
Survey of Particular Benefits ........................................................................................................... 6
Benefits Expressly Provided to Spouses ................................................................................... 8
Health Benefits .................................................................................................................... 8
Dental and Vision Benefits .................................................................................................. 8
Federal Employment Compensation Act Benefits .............................................................. 9
Federal Benefits Provided to Spouses and Others ..................................................................... 9
Family and Medical Leave Act ........................................................................................... 9
Other Types of Leave ........................................................................................................ 10
Life Insurance .................................................................................................................... 11
Federal Employee Pensions and Survivor Benefits ................................................................. 12
Benefits Under CSRS/FERS Defined Benefit Pension Plan ............................................. 12
Insurable Interest Annuity ................................................................................................. 13
TSP Defined Contribution Pension Plan ........................................................................... 14
Death Benefits If No Beneficiary Is Named ..................................................................... 14
Federal Long Term Care .................................................................................................... 14
Legislation in the 112th Congress ................................................................................................... 15
Some Potential Policy Considerations Regarding Same-Sex Benefits and Federal
Employees .................................................................................................................................. 18
Attracting and Hiring the Most Effective Employees ............................................................. 18
Domestic Partner Benefits in the Public and Private Sector ............................................. 19
The Bureau of Labor Statistics Data ................................................................................. 20
Cost Estimates of Providing Domestic Partner Benefits to Federal Employees ............................ 21
Policy Options and Specific Legislative Issues ............................................................................. 23
Policy Options in Response to the Administration’s Actions .................................................. 23
Defining Same-Sex Partnerships ............................................................................................. 23
Verifying Who Qualifies for Benefits ...................................................................................... 24
Benefits for Domestic Partners ................................................................................................ 25
Taxation of Benefits................................................................................................................. 25
Tables
Table 1. Some Benefits Available to Federal Employees and Their Spouses (as Defined
by DOMA) and the Availability of These Benefits to the Same-Sex Partners of Federal
Employees .................................................................................................................................... 7
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Contacts
Author Contact Information........................................................................................................... 26
Acknowledgments ......................................................................................................................... 26
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Federal Benefits and the Same-Sex Partners of Federal Employees
Introduction
In 1996, Congress passed the Defense of Marriage Act (DOMA, P.L. 104-199) “[t]o define and
protect the institution of marriage.”1 DOMA (1) allows states to refuse to recognize same-sex
marriages or partnerships and (2) limits the recognition of these same-sex partnerships for
purposes of any act of Congress or by any federal bureau or agency.2 As codified, DOMA has
three sections. The first provides the bill’s name, the second section allows states to determine
whether to recognize same-sex marriage, and the third defines the terms marriage and spouse for
the purposes of federal enactments. Specifically, Section 3 of DOMA says the following:
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 a
wife.3
The federal government provides a variety of benefits to its workforce, including health care, life
insurance, pensions, and paid time off for vacation and sick leave. Federal employees are
permitted by law to extend certain health, long-term care, and other benefits to their spouses.
DOMA prohibits the distribution of these spousal benefits to same-sex partners. The federal
government, however, provides other benefits to federal employees that may be extended to those
who are associated with a federal employee, but who are not necessarily the employee’s spouse.
In some cases, these benefits have been extended to the partners of federal employees who are in
same-sex relationships.
On June 17, 2009, President Obama issued a memorandum directing executive agencies to
examine ways to extend benefits to federal employees in same-sex domestic partnerships or
same-sex marriages4 within the authority of existing law.5 On July 10, 2009, Office of Personnel
1 1 U.S.C §7.
2 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.
3 1 U.S.C. §7.
4 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. OPM
regulations define a domestic partnership as a committed relationship of two adults of the same-sex, in which the
partners
(1) are each other’s sole domestic partner and intend to remain so indefinitely; (2) maintain a
common residence, and intend to continue to do so (or would maintain a common residence but for
an assignment abroad or other employment-related, financial, or similar obstacle); (3) are at least
18 years of age and mentally competent to consent to contract; (4) share responsibility for a
significant measure of each other’s financial obligations; (5) are not married or joined in a civil
union to anyone else; (6) are not the domestic partner of anyone else; (7) are not related in a way
that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which
the partnership was formed; (8) are willing to certify, if required by the agency, that they
understand that willful falsification of any documentation required to establish that an individual is
in a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits
received related to such falsification, as well as constitute a criminal violation under 18 U.S.C. §
1001, and that the method for securing such certification, if required, shall be determined by the
agency; and (9) are willing promptly to disclose, if required by the agency, any dissolution or
(continued...)
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Management (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.6 OPM and the Department of Justice (DOJ) reviewed these reports
and suggested to President Obama actions that would extend some benefits to the same-sex
partners of federal employees.
On June 2, 2010, President Obama released a second memorandum that extended specific
benefits and perquisites to the same-sex partners of federal employees. For certain benefits, the
term spouse is either not found in the benefit’s authorizing language or the authorizing language
widens the scope of eligibility. The benefits that were extended by the memorandum are those
whose authorizing statutes do not use the term spouse to define or limit potential recipients of the
benefit. The Administration argues that its actions comply with all federal laws, including
DOMA. Among other benefits, the memorandum extended 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 a same-sex partner or a partner’s child is ill. The
newly extended benefits were made available upon the second memorandum’s release.
In the 112th Congress, two bills have been introduced that, if enacted, would permit a federal
employee to provide insurance, travel, and other benefits to his or her same-sex partner. On
November 18, 2011, Senator Joseph Lieberman introduced S. 1910, the Domestic Partnership
Benefits and Obligations Act of 2011, and Representative Tammy Baldwin introduced a
companion bill, H.R. 3485.7 On May 16, 2012, S. 1910 was ordered to be reported favorably
from the Committee on Homeland Security and Governmental Affairs. H.R. 3485 was referred to
the House Oversight and Government Reform Committee’s Subcommittee on Workforce
Protections, the House Education and the Workforce’s Subcommittee on Workforce Protections,
the House Judiciary’s Subcommittee on Courts, Commercial and Administrative Law, and the
Committee on House Administration. No further action has been taken on the bill.
(...continued)
material change in the status of the domestic partnership.
Generally, apart from same-sex marriages, the federal government recognizes marriages that are valid in a state. For
example, according to a telephone conversation between the authors and an OPM official on November 18, 2009,
federal employees who are in opposite-sex common-law marriages qualify for federal benefits. This information was
again verified by OPM via e-mail to the authors on November 1, 2012. Common-law marriages, which are recognized
in nine states and the District of Columbia (and are restricted by date in five additional states), 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 marriage
license or other government-sanctioned document. In addition, most states will generally recognize a common-law
marriage validly entered into in another state, even if the couple could not enter into a valid common-law marriage in
that state.
5 U.S. President (Obama), “Memorandum for the Heads of Executive Departments and Agencies, Subject: Federal
Benefits and Non-discrimination,” June 17, 2009, at 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.
6 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, at http://www.chcoc.gov/Transmittals/
TransmittalDetails.aspx?TransmittalId=2384.
7 S. 1910 would extend same-sex partner benefits to the following federal employees: those as defined in 5 U.S.C.
§§2105, 8331, 8401, 8701, 8901, or 9001; Members of Congress; the President; any other employee who is included in
regulations that would be promulgated by OPM. H.R. 3485 includes similar, but not identical, language.
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Congress may elect to examine, prohibit, or codify Administration initiatives that made some
benefits available to same-sex partners. Congress has the authority to determine if some, all, or
none of the benefits that are available to the opposite-sex spouses of federal employees should be
made available to the same-sex partners of federal employees.
The Defense of Marriage Act and Federal Benefits
The federal government provides a variety of benefits to federal civilian and military employees
and retirees.8 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 these benefits to his or her spouse.
DOMA9 affects the application of benefits to the spouses and partners of federal employees.10
DOMA defines marriage explicitly as “only a legal union between one man and one woman as
husband and wife.”11 DOMA defines spouse as “a person of the opposite sex who is a husband or
a wife.”12 Pursuant to DOMA, these definitions are to be used when “determining the meaning of
any Act of Congress.”13 As such, DOMA prohibits the extension of any federal spousal benefit to
the same-sex partners of federal employees.14 In addition, specific laws or regulations, like the
regulations for the Family Medical Leave Act, explicitly define spouse as a member of the
opposite sex.
Report language from the House Committee on the Judiciary in support of H.R. 3396 (104th
Congress; later enacted as DOMA) stated in its introduction that DOMA sought to protect states’
rights to determine whether same-sex couples could marry and be eligible for benefits. DOMA,
the report argued, anticipated certain legal questions that could arise from this arrangement. The
report said the following:
8 In 2010, there were 2.8 million active federal civilian employees (including U.S. Postal Service), 1.6 million military
employees, 1.9 million civilian annuitants (non-U.S. Postal Service), 580,000 U.S. Postal Service annuitants, and 2.3
million military retirees. The number of federal civilian and military employees is available from OPM’s “Historical
Federal Workforce Tables,” at http://www.opm.gov/feddata/HistoricalTables/TotalGovernmentSince1962.asp. The
number of federal civilian annuitants is from OPM’s, Statistical Abstracts Fiscal Year 2011: Federal Employee
Benefits Programs, p. 9, at http://www.fedbens.us/Retire_Stats.pdf. The number of U.S. Postal Service annuitants is
from OPM’s FY2011 Civil Service Retirement and Disability Fund Annual Report, January 2012, p. 12. The number of
military retirees is from the Department of Defense, 2010 Demographics Report: Profiles of the Military Community, at
http://www.militaryhomefront.dod.mil/12038/Project%20Documents/MilitaryHOMEFRONT/Reports/
2010_Demographics_Report.pdf.
9 1 U.S.C. §7.
10 The unmarried 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.
11 1 U.S.C. §7.
12 Ibid.
13 Several federal courts have ruled on the constitutionality of Section 3 of DOMA, and the Supreme Court has agreed
to rule on the issue during the current term. The Department of Justice indicated that it would not defend the
constitutionality of DOMA, although the Administration said that it would continue to enforce the law. The Speaker of
the House of Representatives convened the Bipartisan Legal Advisory Group to defend DOMA in the federal courts.
For more information on DOMA, see CRS Report RL31994, Same-Sex Marriages: Legal Issues, by Alison M. Smith.
14 Several federal employees are challenging the constitutionality of DOMA’s prohibition of benefits to their partners.
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With regard to federal law, a decision by one State to authorize same-sex “marriage” would
raise the issue of whether such couples are entitled to federal benefits that depend on marital
status. H.R. 3396 anticipates these complicated questions by laying down clear rules to guide
their resolution, and it does so in a manner that preserves each State’s ability to decide the
underlying policy issue however it chooses.15
According to report language, the federal government had four specific interests in mind when
drafting DOMA:
• defending and nurturing the institution of traditional, heterosexual marriage;
• defending traditional notions of morality;
• protecting state sovereignty and democratic self-governance; and
• preserving scarce government resources.16
The latter governmental interest was described in greater detail later in the report:
Government currently provides an array of material and other benefits to married couples in
an effort to promote, protect, and prefer the institution of marriage. While the Committee has
not undertaken an exhaustive examination of those benefits, it is clear that they do impose
certain fiscal obligations on the federal government. For example, survivorship benefits paid
to the surviving spouse of a veteran of the Armed Services plainly cost the federal
government money.
If Hawaii (or some other State) were to permit homosexuals to “marry,” these marital
benefits would, absent some legislative response, presumably have to be made available to
homosexual couples and surviving spouses of homosexual “marriages” on the same terms as
they are now available to opposite-sex married couples and spouses. To deny federal
recognition to same-sex “marriages” will thus preserve scarce government resources, surely
a legitimate government purpose.17
Executive Branch Actions to Extend Benefits to
Same-Sex Partners of Federal Employees
Some benefits to federal employees are extended specifically to the spouse of the federal
employee, while the laws and regulations governing other benefits may not explicitly use the term
spouse. The Obama Administration has extended to the same-sex partners of federal employees
some benefits that do not have the term spouse in their governing authorities. The Administration
has argued that they have done so within the parameters of DOMA. Some organizations,
however, including the non-profit Family Research Council, have argued that the extension of
these benefits is both costly and could undermine the federal definition of marriage.18
15 U.S. Congress, House Committee on the Judiciary, Defense of Marriage Act, report to accompany H.R. 3396, 104th
Cong., 2nd sess., July 9, 1996, H.Rept. 104-664 (Washington: GPO, 1996), p. 1.
16 Ibid., p. 12.
17 Ibid., p. 18.
18 See, for example, Family Research Council, “Washington Update,” February 23, 2012, at http://www.frc.org/
washingtonupdate/at-opm-the-new-policy-is-berry-disturbing; and Cheryl Wetzstein, “Bill offers benefits to gay
(continued...)
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President Obama has issued two memoranda that address the eligibility of same-sex domestic
partners for federal employee benefits. The first memorandum directed agencies to determine
which benefits could be offered within the parameters of existing law. The second memorandum
required agencies to extend specific benefits to the domestic partners of federal employees.
The First Memorandum
On June 17, 2009, President Obama released a memorandum directing all executive departments
and agencies to review and evaluate their existing employee benefits to determine “which may
legally be extended to same-sex partners.”19
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.” 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.”20
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.
The Second Memorandum
On June 2, 2010, President Obama released a memorandum that detailed the benefits OPM and
DOJ recommended for extension to same-sex partners.21 The memorandum stated that children of
(...continued)
partners,” The Washington Times, May 14, 2012, at http://www.washingtontimes.com/news/2012/may/14/bill-offers-
benefits-to-gay-partners/.
19 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, at
http://www.whitehouse.gov/assets/documents/2009fedbenefits_mem_rel.pdf. See also, 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, at
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/.
20 Ibid.
21 President 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,
(continued...)
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same-sex partners fall “within the definition of ‘child’ for purposes of [f]ederal child-care
subsidies, and, where appropriate, for child-care services.”22 Additionally, the memorandum
required extension of the following benefits:
• 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 Federal Employee Retirement System (5 U.S.C. §§8339 and 8420).23
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 purpose, 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 a 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.”24 Pursuant to the memorandum, the benefit extensions were
effective immediately. Media reports noted “lukewarm” reaction from gay rights groups to the
extension of “marginal” benefits.25
Survey of Particular Benefits
Both federal employees and federal annuitants have access to certain benefits. Some of these
benefits can be transferred to spouses or other designated persons. In some cases, a federal
employee’s spouse may be explicitly authorized to receive a federal benefit. In other cases, a
federal employee may designate a particular person to receive a federal benefit.
This section reviews benefits that cannot be extended to same-sex partners, others that are
available to same-sex partners, and still others that have been made available to same-sex partners
by the Obama Administration. These benefits have been mentioned in both current and previous
legislation and executive-branch memoranda. Table 1 summarizes some of the benefits provided
(...continued)
Washington, D.C., June 2, 2010, at http://www.whitehouse.gov/the-press-office/presidential-memorandum-extension-
benefits-same-sex-domestic-partners-federal-emplo.
22 Ibid., p. 1.
23 Federal retirement benefits will be discussed in greater detail below.
24 Ibid., p. 3.
25 Ben Smith, “Obama to extend some benefits to same-sex partners,” Politico, June 16, 2009, at
http://www.politico.com/blogs/bensmith/0609/Obama_to_extend_benefits_to_samesex_partners.html.
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to federal employees and their spouses. It also provides information on whether these benefits are
available to the same-sex partners of federal employees.
Table 1. Some Benefits Available to Federal Employees and Their Spouses (as
Defined by DOMA) and the Availability of These Benefits to the Same-Sex Partners
of Federal Employees
Federal Employee Benefit
Availability
Health, Dental, and Vision Benefits
A spouse of a federal employee may receive health, dental, and
vision insurance benefits. A same-sex domestic partner is ineligible
for these benefits.
Federal Employees Compensation Act (FECA) A spouse of a federal employee is eligible for survivor benefits if the
employee is killed while performing his or her job. A same-sex
domestic partner is not eligible to receive compensation under
FECA.
Family and Medical Leave Act (FMLA)
Eligible employees may use unpaid leave to care for an ailing spouse
or for the ailing child of a spouse. An eligible employee may use
unpaid leave to care for an ailing same-sex domestic partner. An
eligible employee may use unpaid leave to care for the child of a
same-sex domestic partner.
Other Types of Leave (such as sick leave,
OPM regulations define “family member” for various types of leave.
funeral leave)
A spouse and a same-sex domestic partner are both included in the
definition of “family member” for leave purposes.
Federal Employees’ Group Life Insurance
If a designated beneficiary is not named, a spouse automatically
(FEGLI)
receives the life insurance benefit upon the death of a federal
employee enrol ed in FEGLI. A same-sex domestic partner would
not automatical y be the beneficiary. A federal employee may
designate anyone, including a same-sex domestic partner, as the
beneficiary of a life insurance benefit.
Civil Service Retirement System (CSRS) and
A spouse may be entitled to receive a survivor’s benefit under CSRS
Federal Employee Retirement System (FERS)
and FERS if the worker dies while employed in federal service or if
Pensions and Survivors Benefits
the worker dies after retirement. The default benefit for a married
federal worker who retires is a joint-and-survivor annuity. A same-
sex domestic partner is ineligible to receive a survivor benefit and a
federal worker with a same-sex domestic partner is not eligible to
receive a joint-and-survivor annuity.
Insurable Interest Annuity
A federal employee may designate anyone who is financially
dependent on the employee as the beneficiary of an Insurable
Interest Annuity. A same-sex domestic partner may be designated
as the beneficiary of an Insurable Interest Annuity.
Thrift Savings Plan (TSP)
A TSP participant may designate anyone, including a same-sex
domestic partner, as the beneficiary of a TSP account. Upon death
of the TSP participant, the TSP account is distributed based on
order of precedence, if no beneficiary has been designated. In the
order of precedence, “spouse” is listed first. “Same-sex domestic
partner” is not listed in the order of precedence and would not be
eligible to receive the proceeds of a TSP account if no beneficiary
has been named.
Federal Long-Term Care Insurance Program
Qualified relatives of federal employees are eligible to enroll in the
(FLTCIP)
FLTCIP. Same-sex domestic partners are included in the definition
of qualified relatives.
Source: 5 U.S.C. §8909; 5 C.F.R. §890; P.L. 108-496; 5 U.S.C. Chapter 89A and 5 U.S.C. Chapter 89B; 5 U.S.C.
Chapter 81; P.L. 103-3; 5 U.S.C. Chapter 63; 5 U.S.C. Chapter 87; P.L. 106-265; 5 U.S.C. §9001.
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Benefits Expressly Provided to Spouses
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 2010 study, the federal
government pays, on average, 72% of a health plan’s premium and 28% of the premium’s cost is
paid by the employee.26
Pursuant to the Code of Federal Regulations, certain family members of a federal employee are
eligible to enroll in FEHBP.27 Among those eligible are an employee’s spouse and children under
age 22.28
Neither same-sex domestic partners of federal employees nor the partners’ children are eligible to
enroll in FEHBP.29 OPM’s website states the following:
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.”30
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,
26 U.S. Government Accountability Office, U.S. Postal Service: Strategies and Options to Facilitate Progress toward
Financial Viability, GAO-10-455, p. 28, April 2010, at http://www.gao.gov/new.items/d10455.pdf. This average does
not include the health benefit costs for the U.S. Postal Service (USPS). The health care benefits cost for USPS’s nearly
646,000 employees is borne by USPS and its employees. Historically, USPS has paid a larger share of employees’
health insurance premiums compared to other federal agencies. Until January 2012, USPS paid all health benefits costs
for officers and executives of the service. In January, USPS’s share of officer and executive health benefits premiums
dropped from 100% to 91%. Over the next two years, the percentage of the premium covered by USPS will continue to
drop until that percentage is equal to what the federal government provides to its other employees (an average of 72%).
27 5 C.F.R. §890.302.
28 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,” at http://www.opm.gov/
insure/health/reform/index.asp.
29 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.
30 U.S. Office of Personnel Management, “Federal Employees Health Benefits Program Handbook,” at
http://www.opm.gov/insure/health/reference/handbook/fehb28.asp.
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the enrollee pays all benefit premium costs—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.31
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.32
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 §§8101-8193). 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.33 The
same-sex partner of a federal employee is not listed in statute among the eligible recipients of
such compensation.
Federal Benefits Provided to Spouses and Others
As noted earlier, for certain benefits, the term spouse is either not found in the benefit’s
authorizing language or the authorizing language widens the scope of eligibility. This section
describes federal benefits that are either explicitly extended to same-sex partners of federal
employees or those that allow federal employees to designate same-sex partners as beneficiaries.
Family and Medical Leave Act
Pursuant to the Family and Medical Leave Act (FMLA; P.L. 103-3; 5 U.S.C. Chapter 63),
certain34 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;
• the adoption of a child by the employee or placement of a foster child with the
employee;
• the care of an employee’s ailing spouse, child, or parent;
31 U.S. Office of Personnel Management, “Federal Employees Dental and Vision Insurance Program (FEDVIP),” at
http://www.opm.gov/insure/archive/dentalvision/.
32 U.S. Office of Personnel Management, “Dental: Introduction,” at http://www.opm.gov/insure/dental/index.asp; and
U.S. Office of Personnel Management, “Vision: Introduction,” at http://www.opm.gov/insure/vision/index.asp.
33 5 U.S.C. §8102a(d)(1).
34 Pursuant to FMLA, federal employees must have completed at least one year of federal civilian service to qualify for
leave. Additionally, temporary and intermittent employees are not excluded from FMLA coverage (5 U.S.C. §6382).
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• an illness or condition of the employee that renders him or her unable to work; or
• the spouse, child, or parent of the employee is on covered active duty or has been
notified of an impending call or order to covered active duty in the Armed
Forces.35
The 12 weeks of unpaid 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, Department of Labor (DOL) Administrator Interpretation of FMLA interpreted
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. The DOL interpretation applies to all employees in both the public and
private sectors.
Other Types of Leave
On June 14, 2010, OPM released a final rule clarifying the definitions of 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 The regulation formerly had defined “family member” as any one of the
following:
• spouse, and parents thereof;
• children, including adopted children and spouses thereof;
• parents;
35 Pursuant to FMLA, a federal employee whose “spouse, son, daughter, parent, or next of kin” is a covered
servicemember “shall be entitled to a total of 26 administrative workweeks of leave during a 12-month period to care
for the servicemember” (5 U.S.C. §6382).
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, at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf. The interpretation
permits any person serving “in loco parentis” to use FMLA-approved leave to care for a child. The interpretation
defines “in loco parentis” 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.
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• 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
Pursuant to the new regulation, the definition of family member now also includes
• 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 new regulation also modified existing or added new definitions to criteria that determine if
same-sex partners would be eligible for certain leave benefits. For example, the terms committed
relationship,41 domestic partner,42 parent,43 and son or daughter44 were added into the Code of
Federal Regulations. The modified regulation applies to leave benefits for both same-sex and
opposite-sex partnerships, and includes but is not limited to partnerships recognized by a state,
territory, or district government. The regulation became effective June 14, 2010. The regulation
does not appear to affect FMLA.
Life Insurance
In some cases, a federal employee may not choose to enroll a spouse or same-sex partner in a
federal benefit program. Instead, the employee may designate any individual as the recipient of a
federal benefit. 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.45 Federal employees
pay two-thirds of their life-insurance premium, and the federal government pays the remaining
third.46 A federal employee may designate anyone, including a same-sex partner, as their life
insurance beneficiary by filing an SF 2823 form.47 A federal employee’s spouse would
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
modified in or added to 5 C.F.R. §630.902.
40 Ibid., p. 33495.
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 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.
46 USPS pays 100% of the life insurance premium.
47 For more information about the SF 2823, see U.S. Office of Personnel Management, “Life: Designation of
(continued...)
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automatically receive the federal benefit if he or she did not specifically designate a different
beneficiary, pursuant to federal law (5 U.S.C. §8705(a)).
In 5 U.S.C. §8701, the section of U.S. Code that defines the terms used on statutes that govern
federal life insurance, family member includes the phrase spouse of the individual when listing
eligible beneficiaries. Title 5 U.S.C. §8705, the section of code that delineates the order of
preference in which life insurance benefits would be distributed in the event of a federal
employee’s death, says life insurance benefits would first be distributed to any person or entity
that was selected by the employee using the SF 2823 form. If no form was completed, the benefit
would then go to “the widow or widower of the employee.”48 It would appear, therefore, that
DOMA would preclude same-sex domestic partners from qualifying as a widow or widower.
Federal Employee Pensions and Survivor Benefits
Federal employees with permanent appointments are eligible for retirement and disability benefits
under either CSRS or FERS.49 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. Most federal
employees initially hired into permanent federal employment on or after January 1, 1984, are
covered by FERS. CSRS and FERS provide (1) a defined benefit pension plan, which pays a
monthly dollar amount for the lifetime of the retiree; and (2) access to the Thrift Savings Plan
(TSP), which is a defined contribution retirement savings plan in which employee and (for
employees covered by FERS) agency contributions accrue tax-deferred investment earnings in a
retirement savings account.
Benefits Under CSRS/FERS Defined Benefit Pension Plan
Workers covered by the CSRS or FERS defined benefit pension plan receive a monthly
retirement annuity for the lifetime of the retiree if the retiree meets all eligibility requirements.
The payment in retirement is determined by a formula that uses the worker’s number of years in
federal service, an accrual percentage, and salary base.50 The accrual rate is higher for employees
under CSRS than under FERS. Workers covered by CSRS do not participate in Social Security,
do not receive Social Security benefits, and do not pay Social Security taxes. Workers covered by
FERS fully participate in Social Security.51
Under CSRS and FERS, an eligible spouse is entitled to receive monthly retirement benefits if (1)
the covered worker dies while employed in federal service; or (2) the covered worker dies after
(...continued)
Beneficiary,” at http://www.opm.gov/insure/life/fegli/sf2823.asp.
48 5 U.S.C. §8705(a).
49 For more information, see CRS Report 98-810, Federal Employees’ Retirement System: Benefits and Financing, by
Katelin P. Isaacs.
50 For example, CSRS pensions equal 1.5% of high-three average pay for each of the first five years of service, 1.75%
for the 6th through 10th years; and 2.0% of high-three average pay for each year of service after the 10th year. FERS
pensions equal 1% of high-three year average pay for each year of service or 1.1% per year of service if the employee
retires at age 62 or older and has 20 or more years of federal service. Current Members of Congress and congressional
staff, federal law enforcement officers, firefighters, and air traffic controllers accrue benefits at higher rates.
51 Some Members of Congress can opt out of the federal pension plan and choose to be covered by Social Security
alone. See CRS Report RL30631, Retirement Benefits for Members of Congress, by Katelin P. Isaacs.
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retirement. When a federal employee dies, the surviving spouse of the deceased federal employee
may be entitled to a survivor’s benefit.52 When a married federal worker retires, the married
couple receives a monthly retirement benefit for the longer of the lifetime of the worker or the
spouse. The monthly benefit in retirement is reduced to account for the expected longer time
period in which the benefit will be paid. The spousal benefit is the default option for married
federal employees, unless both the federal worker and spouse provide written consent to waive
the benefit.
Title 5 of the U.S. Code, which governs benefits under CSRS and FERS, defines the term spouse
without reference to the individual’s gender. Title 5 does not define the word marriage; however,
the Code of Federal Regulations defines marriage for purposes of determining eligibility for
federal retirement benefits under Title 5 as “a marriage recognized in law or equity under the
whole law of the jurisdiction with the most significant interest in the marital status of the
employee, member, or retiree unless the law of that jurisdiction is contrary to the public policy of
the United States.”53 Since DOMA defines a spouse as “a person of the opposite sex who is a
husband or a wife,” same-sex partners are ineligible to receive spousal benefits entitled to
opposite-sex partners.
If a federal employee dies, and no survivor annuity is payable to a spouse, former spouse, or a
child, then the employee’s contributions to CSRS and FERS may be returned as a lump-sum
benefit. Under both FERS and CSRS, an employee may designate anyone, including a same-sex
partner, as his or her beneficiary for a lump-sum refund of retirement contributions to the
retirement system. If anyone qualifies to receive survivor annuity benefits by law (such as a
spouse or dependent child), however, retirement contributions cannot be refunded. If no survivor
benefit is payable and the employee has not designated a beneficiary, then the return of
contributions will be distributed based on the order of precedence. The order of precedence
awards the benefits in the following order: widow or widower; child or children equally, and to
the descendants of deceased children; parents equally or surviving parent; appointed executor or
administrator of estate; or next of kin who is entitled to your estate under the laws of the state in
which the employee resided at the time of death.
Insurable Interest Annuity
Although a federal employee cannot name a 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), which is a survivor annuity to an individual who is
financially dependent on the employee. Only one person may be named as the beneficiary of the
IIA, and the election must be made at the time of retirement. 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
52 Under CSRS, survivor benefits are paid to the surviving spouse if the employee completed at least 18 months of
creditable service and was covered under CSRS at the time of death. Under FERS, survivor benefits are paid to the
surviving spouse if the employee completed at least 18 months of creditable civilian service under FERS. Under both
CSRS and FERS, the surviving spouse must be married to the employee for at least nine months. If the death occurred
before nine months of marriage, a survivor annuity may still be payable if the employee’s death was accidental, or if
there was a child born of the marriage. For details on the amount of the survivor’s benefit, see http://www.opm.gov/
retire/post/survivor/deceased_employee.asp.
53 See 5 C.F.R. §831.603 and 5 C.F.R. §843.10.
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is 10 years younger than the employee to a 40% reduction if the beneficiary is 30 or more years
younger.
TSP Defined Contribution Pension Plan
Both CSRS- and FERS-covered workers may contribute up to $17,000 in 2012 ($22,500 for those
age 50 and older) to the Thrift Savings Plan (TSP). Contributions to TSP are excluded from
taxable income; taxes are paid when funds are withdrawn in retirement. Employees covered by
FERS receive an agency matching contribution of up to 5% to their TSP account. Workers
covered by CSRS do not receive agency matching contributions.
A federal employee can name anyone, including a domestic partner, as the beneficiary under the
TSP.54 The beneficiary will receive the amount in the TSP account following a participant’s death.
For spouses who are beneficiaries of a deceased TSP participant and the account is $200 or more,
TSP establishes a beneficiary participant account. The beneficiary account is automatically
invested in the Government Securities Investment (G) Fund until the spouse beneficiary elects
different investment options. The spouse may keep the funds in the TSP beneficiary account or
elect to withdraw or transfer the funds to an Individual Retirement Account (IRA) or other
retirement plan, if the plan allows. Non-spouse beneficiaries cannot retain a TSP account. The
funds in a deceased participant’s account are either transferred directly to the non-spouse
beneficiary or to an inherited IRA.55
Death Benefits If No Beneficiary Is Named
If an employee does not designate one or more beneficiaries under FERS, CSRS, or the TSP, the
funds will be distributed based on the order of precedence. The order of precedence awards the
benefits in the following order: widow or widower; child or children equally, and to the
descendants of deceased children; parents equally or surviving parent; appointed executor or
administrator of estate; or next of kin who is entitled to the estate under the laws of the state in
which the employee resided at the time of death. Thus, the funds from the TSP or CSRS/FERS
lump-sum benefit will bypass a same-sex partner unless the federal employee actively designates
that person as the beneficiary.56
Federal Long Term Care
Federal employees may 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, servicemembers, or annuitants; adult children of federal
employees, servicemembers, or annuitants; and parents, parents-in-law, and stepparents of federal
54 For more information, see the TSP publication “Information for Participants and Beneficiaries,” at
https://www.tsp.gov/PDF/formspubs/tspbk31.pdf.
55 For more information on IRAs, see CRS Report RL34397, Traditional and Roth Individual Retirement Accounts
(IRAs): A Primer, by John J. Topoleski.
56 5 U.S.C. §5570.
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employees, servicemembers, 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, servicemember, or annuitant to enroll in FLTCIP.57
On June 1, 2010, OPM published in the Federal Register a final rule that expanded the definition
of qualified relative to include “the same-sex domestic partners of eligible Federal and U.S.
Postal Service employees and annuitants.” 58 As of July 1, 2010, same-sex partners of federal
employees are eligible for FLTCIP benefits.
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.”59
Legislation in the 112th Congress
In the 112th Congress, two bills have been introduced that, if enacted, would provide insurance,
travel, and other benefits to the same-sex partners of federal employees. On November 18, 2011,
Senator Joe Lieberman—on behalf of himself and Senator Susan Collins—introduced S. 1910,
the Domestic Partnership Benefits and Obligations Act of 2011. That same day, Representative
Tammy Baldwin introduced a companion bill, H.R. 3485, in the House. S. 1910 was referred to
the Committee on Homeland Security and Governmental Affairs. On May 16, 2012, the
committee reported S. 1910 favorably with an amendment in the nature of a substitute.60 H.R.
3485 was referred to the Oversight and Government Reform Committee’s Subcommittee on
Workforce Protections, the House Education and the Workforce’s Subcommittee on Workforce
Protections, the House Judiciary’s Subcommittee on Courts, Commercial and Administrative
57 5 U.S.C. §9001(5)(D).
58 U.S. Office of Personnel Management, “Federal Long Term Care Insurance Program: Eligibility Changes,” 75
Federal Register 30267-30268, June 1, 2010. According to the final 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
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.
Prior to this regulation, qualified relatives included a spouse, parent, stepparent, parent-in-law, and adult child who was
at least age 18.
59 Ibid., p. 30267.
60 The amendment added a provision that allowed the federal government to recoup certain health costs if those costs
were paid for by an outside insurer or other liable entity. It also provided authority to pay for the costs of same-sex
partner benefits, as well as included some technical amendments.
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Law, and the Committee on House Administration. No further action has been taken on H.R.
3485.
Among the benefits the bills61 sought to extend were the following:
• health insurance and enhanced dental and vision benefits (5 U.S.C. Chapters 89,
89A, 89B);
• retirement and disability benefits and plans (5 U.S.C. Chapters 83, 84; 31 U.S.C
Chapter 7; 50 U.S.C. Chapter 38);
• family, medical, and emergency leave (2 U.S.C. §1312; 3 U.S.C. §412; 5 U.S.C.
Chapter 63 – subchapters II, IV, and V; 29 U.S.C. §2601 et seq.);
• 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.); and
• travel, transportation, and related payments and benefits (5 U.S.C. Chapter 57; 22
U.S.C. §4981 et seq.; 10 U.S.C. §1599b; 22 U.S.C. Chapter 52; 33 U.S.C.
§3071).62
Pursuant to S. 1910, each qualifying federal employee seeking 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 OPM. In the affidavit, the employee would have had “attest” that he or she was in
a “committed domestic-partnership,” which included the following conditions:
• the partners “are in a committed domestic-partnership relationship with each
other ... and intend to remain so indefinitely”;
• the partners “have a common residence and intend to continue to do so”;63
• the partners are at least 18 years old and are “mentally competent to consent to
contract”;
• the partners “share responsibility for a significant measure of each other’s
common welfare and financial obligations”;
61 This section of the report defaults to bill language in S. 1910, unless otherwise stated. In some instances, the
language in S. 1910 was identical or similar to the language in H.R. 3485. In some instances, the bills had different
language. This section of the report included examples of both similar and different language uses in the bills. The
report makes clear when language from H.R. 3485 was provided.
62 Not all of the sections of U.S. Code cited in this list are explicitly included in S. 1910 and H.R. 3485. For example,
disability, death, or captivity benefits for Foreign Service officers and public safety officers (22 U.S.C. §3973 and 42
U.S.C. §3796, respectively).
63 H.R. 3485 would have allowed the partners to live in separate locations “because of financial, employment-related,
or other reasons identified in the affidavit.” S. 1910, on the other hand, included language that permitted the partners to
live in separate residences when they were “prevented from [living together] because of an assignment abroad or other
employment-related factors, financial considerations, family responsibilities, or other similar reason” that would be
identified in the affidavit.
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• the partners are not “married to or in a domestic partnership with anyone except
each other”;
• the partners are not related by blood in a way that would prohibit legal marriage
between individuals otherwise eligible to marry in the jurisdiction”; and
• the partners would be subject to the same ethical standards, financial disclosures,
and conflict of interest requirements as those placed on the spouses of federal
employees (5 U.S.C. Appendix; 5 U.S.C. §§3110, 7301, 7342(a)(1),7351, 7353; 2
U.S.C. §1602(4)(D); 18 U.S.C. §§205(e), 208(a); 31 U.S.C. §1353; 42 U.S.C.
§290b(j)(2)).
Additionally, the applicant would have had to attest that he or she understood that “as a domestic
partner, each individual not only gains certain benefits, but also assumes some obligations.” The
bills’ language provided for “criminal and other penalties” if certain legal obligations were
violated.64
Both S. 1910 and H.R. 3485 would have 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.65 Both bills would have provided benefits to the living partner of a deceased federal
employee as if he or she were a widow or widower.66 Additionally, a former partner would have
been entitled to benefits identical to that of a former spouse.67
Natural children or adopted step children of a federal employee’s same-sex partner would have
been entitled to benefits identical to that of a natural or adopted child of a federal employee’s
spouse, pursuant to the bills.68
Similar bills to both S. 1910 and H.R. 3485 were introduced in the previous seven Congresses.69
No bill has been introduced in the 112th Congress that sought to explicitly rescind the benefits
extended by the Obama Administration.
64 S. 1910, Section 101. H.R. 3485’s language was different than that in S. 1910. H.R. 3485 read as follows:
The filing employee, former employee, or annuitant (as the case may be) understands that willful
falsification of information set forth in the affidavit or failure to provide appropriate notification of
the termination of the domestic partnership may lead to the recovery of amounts obtained as a
result of such falsification or failure (as the case may be), criminal or other penalties, and (in
appropriate cases) disciplinary action.
65 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 in other
jurisdictions may prove problematic. Determining when a same-sex relationship is officially dissolved is beyond the
scope of this report.
66 Title II of S. 1910 includes language that would extend these benefits to employees covered by CSRS (Section 205),
while Title III would extend the benefits for federal employees covered by FERS (Section 315).
67 Ibid.
68 See, for example, in S. 1910 Sec. 3182(2)(B), which discusses benefits under FERS.
69 H.R. 2517 and S. 1102 in the 111th Congress; H.R. 4838 and S. 2521 in the 110th Congress; H.R. 3267 in and S. 3955
in the 109th Congress; H.R. 2426 and S. 1252 in the 108th Congress; H.R. 638 and S. 2874 in the 107th Congress; H.R.
2859 in the 106th Congress; H.R. 2761 and S. 1636 in the 105th Congress.
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Federal Benefits and the Same-Sex Partners of Federal Employees
Some Potential Policy Considerations Regarding
Same-Sex Benefits and Federal Employees
This section provides analysis of some potential policy considerations Congress may consider
that are related to federal employees and the extension of health and other benefits to same-sex
partners of federal employees. Congress may choose to examine or modify existing policies
related to the extension of benefits to the partners of federal employees in same-sex relationships,
or maintain existing policies. Currently benefits like health care, dental care and eye care are not
available to the same-sex partner of a federal employee. Other benefits, like FMLA and life
insurance, however, are.
The Obama Administration has pledged its support for extending federal benefits to the same-sex
partners of federal employees. The Administration has extended some benefits to same-sex
partners and has argued that its actions are within the parameters of existing laws. DOMA, which
was enacted by Congress and signed into law by President William J. Clinton, requires agencies
to define spouse as a person of the opposite-sex, for the purpose of distributing federal benefits. 70
Attracting and Hiring the Most Effective Employees
Some may worry that not providing same-sex partner benefits makes the federal government a
less attractive employment option to potential employees who have same-sex partners. They
contend that to compete for the most effective and efficient workforce the federal government
needs to offer benefits similar to those available in state and local governments and in the private
sector.71 The Obama Administration, for example, has argued that by not extending same-sex
benefits, the federal government faces difficulties recruiting and retaining high-performing
70 In December 2009, although a federal court ordered OPM to do so, OPM reportedly decided not to extend benefits to
the same-sex partners of judicial branch federal employees who are married in California. The agency reportedly stated
that extending such benefits would be a violation of existing federal law (DOMA). See Joe Davidson, “OPM Defies
Order on Same-sex Benefits,” Washington Post, December 22, 2009, at http://www.washingtonpost.com/wp-dyn/
content/article/2009/12/21/AR2009122103240.html.
71 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,
Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009
(Washington: GPO, 2009), at http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/
20090708Badgett.pdf. Academic studies have shown that employees are attracted to jobs that offer optimal
compensation packages, which includes benefits. See, for example, Robert R. Sinclair, Michael C. Leo, and Chris
Wright, “Benefit System Effects on Employees’ Benefit Knowledge, Use, and Organizational Commitment,” Journal
of Business and Psychology, vol. 20, no. 1 (Fall 2005), pp. 3-29. In December 2007, the Center for State and Local
Governance commissioned a public opinion poll asking 1,200 Americans what made a job attractive. The results
showed that health care benefits rated much higher than salary. See Princeton Survey Research Associates
International, Data Report: Security: What Americans want from a job, December 2007, http://slge.org/wp-content/
uploads/2012/01/Security_What_Americans_Want_from_a_Job1.pdf. Other academic articles operate from the
assumption that workers are attracted to benefits, see, for example Thomas T. Robertson and Steven A. Harrold,
“Tailoring benefits to attract effective managers,” Journal (American Water Works Association), December 1983, pp.
592-595. Still other academic studies note explicitly that employers assume benefits will attract the employees, see
Margaret A. Lucero and Robert E. Allen, “Employee Benefits: A Growing Source of Psychological Contract
Violations,” Human Resource Management, vol. 33, no. 3 (Fall 1994), p. 428.
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Federal Benefits and the Same-Sex Partners of Federal Employees
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. When Congress enacted DOMA, report language that
accompanied the legislation did not address whether denying such benefits could impede the
federal government’s ability to hire the most effective workers. At the time of DOMA’s
enactment, few employers offered same-sex benefits to their employees. There is no federal data
that has tracked, over time, the availability of same-sex partner benefits to either public or
private-sector employees.72 Such data could aid in the determination of whether private-sector
employers or other levels of government have been offering benefits that the federal government
has not.73
Domestic Partner Benefits in the Public and Private Sector
Some private-sector and public-sector employers offer benefits to the domestic partners74 of their
employees. The types and scope of the benefits offered, however, vary: some employers provide
only health care benefits to domestic partners while other employers provide additional
benefits—such as survivorship benefits under the employer’s pension plan.75 A Congressional
Research Service search of academic, legal, and other research databases, found that there appear
to be few studies that track, over time, how many employers provide same-sex partner benefits to
their employees and the scope of those benefits. Some studies, however, provide benefits data for
a single date or over a short time span. This section provides data from these surveys.
When DOMA was enacted, few employers in the private and public sector offered domestic
partner benefits of any sort. For example, a study by Hewitt Associates LLC, a global
management consulting company, found in 1997 that 10% of 570 large U.S. employers offered
domestic partner benefits. In 2000, the percentage of companies surveyed by Hewitt that offered
domestic partner benefits increased to 22%.76 According to the National Survey of Employer-
Sponsored Health Plans conducted by Mercer, a global consulting company, 46% of corporations
72 In July 2011, the Bureau of Labor Statistics, for the first time in its history, “produced data on employer-provided
benefits available to unmarried domestic partners.” See U.S. Department of Labor, Bureau of Labor Statistics,
“Employee Benefits in the United States - March 2011,” press release, July 26, 2011, at http://www.bls.gov/
news.release/pdf/ebs2.pdf. Data for this survey are from BLS’s National Compensation Survey and contain “data on
civilian, private industry, and state and local government workers in the United States.” For additional technical
information on the data, see Bureau of Labor Statistics, “Economic News Release: Employee Benefits Technical Note,”
at http://www.bls.gov/news.release/ebs2.tn.htm.
73 OPM Director John Berry stated in his July 8, 2009, testimony before the House Committee on Oversight and
Government Reform’s Subcommittee on Federal Workforce, Post Office, and the District of Columbia that extending
federal benefits to same-sex partners of federal employees (pursuant to H.R. 2517 in the 111th Congress) would provide
the federal government with a “a recruitment and retention tool.” See 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, H.R. 2517, 111th Cong., 1st sess., July 8, 2009, at
http://www.opm.gov/News_Events/congress/testimony/111thCongress/07_08_2009.asp.
74 Most studies used the term “domestic partner” and not “same-sex partner.” The terms are not interchangeable, as
“domestic partner” usually includes opposite-sex unmarried partners. CRS, however, used studies on “domestic
partner” benefits as a proxy for provision of “same-sex partner” benefits because “same-sex partners” are usually
included in the category of “domestic partner” benefits.
75 For more information on the legal considerations of same-sex partnerships and employee benefits in the private
sector—including legal challenges to DOMA, see CRS Report R41998, Same-Sex Marriage and Employee Benefit
Plans: Legal Considerations, by Jennifer Staman.
76 Benefit Programs for Domestic Partners & Same-Sex Spouses, Hewitt Associates. Lincolnshire, Ill.: 1997 and 2000.
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Federal Benefits and the Same-Sex Partners of Federal Employees
with 500 or more employees included same-sex domestic partners as eligible dependents in 2011,
which was an increase from 39% in 2010.77 In testimony before the House Committee on
Oversight and Government Reform, Dr. M.V. Lee Badgett, the research director of the Williams
Institute,78 said that “[i]n the private sector, almost two-thirds of the Fortune 1000, and 83% of
Fortune 100 companies” provide benefits to the same-sex partners of their employees and that 20
states, the District of Columbia, and “[m]ore than 250 cities, counties, and other local government
entities cover domestic partners of other public employees.” 79
Many employers do not provide domestic-partner benefits. The nation’s two largest private-sector
employers—Walmart and Exxon Mobil—do not provide benefits to same-sex partners in the
United States.80 Other employers that provide benefits to same-sex partners—including I.B.M.,
Corning, and Raytheon—reportedly require same-sex couples to marry, if they live in a state
where same-sex marriage is legal, to become eligible for health and other benefits.81
The Bureau of Labor Statistics Data
In 2011, the Bureau of Labor Statistics (BLS), for the first time in its history, released data on
benefits provided to the domestic partners of employees.82 In March 2012, BLS updated its
survey data.83 The BLS survey asked workers whether (1) they had access to a defined benefit
pension plan at their place of employment and whether they had access to survivor benefits for an
unmarried domestic partner and (2) they had access to health benefits at their place of
77 See Mercer, “Employers Accelerate Efforts to Bring Health Benefit Costs Under Control,” press release, November
16, 2011, at http://www.mercer.com/press-releases/national-survey-employer-sponsored-health-plans.
78 The Williams Institute is a think tank at the University of California-Los Angeles that “advances sexual orientation
and gender identity law and public policy through rigorous, independent research and scholarship.” See the Williams
Institute, “Mission,” at http://williamsinstitute.law.ucla.edu/mission/.
79 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), at
http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf.
80 See, for example, Jenna Zwang, “Which Side do Companies Take in the Gay-Rights Culture War?” National
Journal, September 27, 2011 at http://www.nationaljournal.com/pictures-video/which-side-do-companies-take-in-gay-
rights-culture-war-pictures-20110927. On May 30, 2012, ExxonMobil shareholders rejected a resolution that would
have required the company to amend its equal employment opportunity policy to prohibit discrimination based on
sexual orientation and gender identity. The company indicated that it provides spousal benefits based on the definition
of spouse in the country in which an employee resides. See Jon Street, “ExxonMobil Shareholders Vote No on Same-
Sex Couple Benefits in USA,” at http://cnsnews.com/news/article/exxonmobil-shareholders-vote-no-same-sex-couple-
benefits-usa.
81 Tara Siegel Bernard, “As Same-Sex Marriage Becomes Legal, Some Choices May be Lost,” New York Times, July 8,
2011, at http://www.nytimes.com/2011/07/09/business/some-companies-want-gays-to-wed-to-get-health-benefits.html?
_r=1.
82 Bureau of Labor Statistics, “Employee Benefits in the United States, March 2011, Unmarried Domestic Partners
Benefit Fact Sheet,” July 26, 2011, at http://www.bls.gov/ncs/ebs/sp/ebs_domestic.pdf. Domestic partners include an
unmarried couple of the opposite sex. The survey included 123 million workers from 12,545 establishments in the
private sector and state and local governments. The survey does not include federal employees.
83 Bureau of Labor Statistics, “Employee Benefits in the United States, March 2012, Unmarried Domestic Partners
Benefit Fact Sheet, March 2012,” at http://www.bls.gov/ncs/ebs_domestic2012.pdf. Domestic partners include an
unmarried couple of the opposite sex. The survey included 123 million workers from 12,545 establishments in the
private sector and state and local governments. The survey does not include federal employees.
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Federal Benefits and the Same-Sex Partners of Federal Employees
employment and whether there was access for unmarried domestic partners. According to the
surveys, workers in the public-sector (which would include state, local, and tribal—but not
federal government) were more likely to be offered domestic partner benefits than workers in the
private sector.84
BLS reported the following:
• Among private-sector workers with access to a defined benefit pension plan, 35%
had access to survivorship benefits for a domestic partner in 2011 and 42% in
2012.
• Among private sector, civilian workers with access to health care benefits, 29%
had access to health benefits for unmarried domestic partners in 2011. In 2012,
the survey data was more granular. According to the data, 30% of private
industry employees had access to health care benefits for a same-sex partner (as
opposed to an opposite-sex domestic partner).
• Among workers who worked for state and local governments, 54% had access to
health benefits for unmarried domestic partners.85 In 2012, the survey data was
more granular. According to the data, 33% of state and local government
employees had access to benefits for a same-sex partner (as opposed to an
opposite-sex domestic partner).86
Generally, the 2012 data demonstrated that health care benefits were “more prevalent for same-
sex partners than for opposite-sex partners.”87
Cost Estimates of Providing Domestic Partner
Benefits to Federal Employees
In November 2012, CBO released its score of S. 1910, which, as described above, sought to
extend certain benefits and responsibilities to the same-sex partners of federal employees and
annuitants.88 The score projected that the extension of benefits from FY2013 through FY2022
would cost the federal government $144 million in discretionary dollars over those 10 years.89
84 Ibid.
85 The data represent the percentage of workers with access to the benefit and not the percentage of employers who
provide it. Because some states with large populations offer their employees domestic partner benefits, a greater
percentage of state and local government workers have access to domestic partner benefits—even though a greater
percentage of states do not provide these benefits.
86 Bureau of Labor Statistics, “Employee Benefits in the United States, March 2011, Unmarried Domestic Partners
Benefit Fact Sheet,” July 26, 2011; and Bureau of Labor Statistics, “Employee Benefits in the United States, March
2012, Unmarried Domestic Partners Benefit Fact Sheet, March 2012.”
87 Bureau of Labor Statistics, “Employee Benefits in the United States, March 2012, Unmarried Domestic Partners
Benefit Fact Sheet, March 2012.”
88 Congressional Budget Office, S. 1910: Domestic Partners Benefits and Obligations Act of 2011, Washington, DC,
November 15, 2012, http://www.cbo.gov/sites/default/files/cbofiles/attachments/s1910.pdf.
89 Ibid., p. 1. The estimates include costs associated with extending benefits to employees of the U.S. Postal Service,
which is usually considered “off-budget,” or outside of the normal federal budget process. Costs for extending same-
sex partner benefits to USPS employees was estimated at $68 million from 2013 to 2022.
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Federal Benefits and the Same-Sex Partners of Federal Employees
This estimate was $159 million and $211 million less than CBO’s score of two similar bills from
the 111th Congress (H.R. 2517 and S. 1102, respectively).90
CBO’s score of S. 1910 assumed less than 1% of the federal employee and annuitant population
would opt to enroll a same-sex partner in federal benefits programs. The score also estimated that
federal government premiums for federal health care would be reduced by $13 million over ten
years if same-sex partners were eligible to enroll. The savings would emerge, according to CBO,
because the law would require health care providers “recover payments when a third party is
liable for the health care costs of a covered enrollee” and such recoveries would reduce
government premiums.91 The CBO estimates of H.R. 2517 and S. 1102 from the 111th Congress
did not include recovery payment collections in their analyses.
A 2008 academic study estimated the cost of extending same-sex partner benefits to federal
employees and annuitants at $41 million in the first year and $675 million over 10 years.92 In
testimony before the House Oversight and Government Reform Committee’s Subcommittee on
the Federal Workforce, Postal Service, and District of Columbia on July 8, 2009, Office of
Personnel Management Director Berry estimated that extending benefits to the same-sex partners
of federal employees and annuitants would have cost the government $56 million in 2010.93
Current budgetary circumstances may discourage Congress from extending benefits to the same-
sex partners of federal employees and annuitants. As noted earlier in this report, when DOMA
was enacted, the House report that accompanied the legislation stated that a primary goal of the
law was to “preserve scarce government resources.”94
Congress often considers more than the cost or cost savings of a policy when choosing whether to
act on it. Extending benefits to the same-sex partners of federal employees is controversial, and
may prompt moral or ethical concerns for Members on all sides of the issue. Some Members, for
example, may believe that extending benefits to the same-sex partners of federal employees
violates a law enacted to require that marriage, for purposes of federal benefit programs, be
defined as the union of one man and one woman. Other Members, however, may believe that
90 Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, December 17,
2009, p. 1, at http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf; and Congressional Budget Office, S. 1102:
Domestic Partner Benefits and Obligations Act of 2009, Washington, DC, May 11, 2010, http://www.cbo.gov/sites/
default/files/cbofiles/ftpdocs/114xx/doc11494/s1102.pdf. S. 1102 did not include extending benefits to the same-sex
partners of federal annuitants, which H.R. 2517 did include. S. 1910 from the 112th Congress also included extension of
benefits to the same-sex partners of federal annuitants. H.R. 2517 and S. 1102 included cost estimates to extend health
insurance, survivor annuities, compensation for work-related injuries and travel and relocation benefits, which would
have affected the federal budget. The bills sought to extend other benefits that would not have an affected the federal
budget, such as life insurance and vision and dental benefits.
91 Congressional Budget Office, S. 1910: Domestic Partners Benefits and Obligations Act of 2011, p. 3.
92 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. The study included cost estimates to extend
health insurance, retirement benefits, travel and relocation expenses, family medical leave, long-term care, and worker
death compensation, which would have an effect on the federal budget. The study also examined costs associated with
vision and dental insurance, which would not have an effect on the federal budget.
93 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post
Office, and the District of Columbia, H.R. 2517, “The Domestic Partner Benefits and Obligations Act of 2009,” 111th
Cong., 1st sess., July 8, 2009, at http://www.opm.gov/News_Events/congress/testimony/111thCongress/
07_08_2009.asp.
94 U.S. Congress, House Committee on the Judiciary, Defense of Marriage Act, report to accompany H.R. 3396, 104th
Cong., 2nd sess., July 9, 1996, H.Rept. 104-664 (Washington: GPO, 1996), p. 12.
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prohibiting the extension of benefits to same-sex partners results in unequal treatment of federal
employees in same-sex relationships. Still other Members may argue that extending benefits to
federal employees in same-sex domestic partnerships is unfair to employees in opposite-sex
partnerships. For example, at a House Committee on Oversight and Government Reform hearing
in July 2009, Representative Chaffetz said the following:
Whether or not a heterosexual couple is dating and living together can meet all other
standards except for the portion ... regarding ... same-sex status is of concern to me. If they ...
are not afforded the same rights, this bill is directly discriminatory against heterosexual
couples, and that, to me, is one of the unintended consequences that I have a serious concern
[about] and question.... 95
This report, however, does not address the ethical and legal debates surrounding DOMA and
same-sex marriage.
Policy Options and Specific Legislative Issues
Policy Options in Response to the Administration’s Actions
As discussed earlier in this report, President Obama’s June 2, 2010, memorandum to the heads of
executive branch 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.96 Congress may choose to stop the extension of these benefits by enacting
legislation explicitly prohibiting their extension. No legislation has been introduced that would
scale back the same-sex partner benefits extended by the Obama Administration. Conversely,
Congress has the authority to enact into law some, all, or none of the memorandum. Congress
may choose to hold hearings to examine the implementation of the memorandum.
Defining Same-Sex Partnerships
The definition of “domestic partner” is in dispute. DOMA defines marriage, for purposes of
federal benefit programs, as the union of one man and one woman. For the purposes of
distributing federal benefits to the partners of opposite-sex couples, the federal government
recognizes a spouse from the date of legal marriage to either divorce or death. State and local
governments or companies that wish to provide domestic partner benefits need to define
“domestic partner” for the purpose of the benefits. Some state and local governments and
companies that operate in jurisdictions that recognize same-sex marriage or domestic partnerships
have required that same-sex partners be married in order to receive domestic partner benefits.
Employees in states that do not recognize same-sex marriage would be required to meet the
definition required by the entity that is providing the benefits. It may be difficult to define the
95 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post
Office, and the District of Columbia, H.R. 2517, Domestic Partnership Benefits and Obligations Act of 2009, Hearing
on H.R. 2517, 111th Cong., 1st sess., July 8, 2009, Serial no. 111-15 (Washington: GPO, 2009)
96 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.
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start and end of a same-sex partnership and because many same-sex partnerships are recognized
in limited circumstances or not at all, the start and dissolution of such unions may vary based on
jurisdiction. This could be problematic for the federal government as an employer because the
federal government has employees in all 50 states, the District of Columbia, and the territories (as
well as international employees)—some of which recognize same-sex marriages, some of which
recognize domestic partnerships, and some of which do not recognize any same-sex partnership.
If Congress chose to enact a law to extend same-sex partner benefits, it would have to define
same-sex partnership to incorporate the various terms states use for such unions as well as capture
such unions that exist in states that do not acknowledge same-sex relationships. In addition,
Congress would have to specify what would constitute the start of such a partnership and what
would qualify as its end.
Verifying Who Qualifies for Benefits
Married couples can use a marriage license to verify their committed relationship for legal
purposes. Same-sex couples, however, have no license or other type of document to verify their
relationship for federal legal purposes.97 If Congress were to provide benefits to the same-sex
partners of federal employees, Congress may also decide that the federal government must verify
that benefit applicants are in a committed, same-sex domestic partnership.98 Congress may
determine that each agency should be given authority to verify whether an employee is in a same-
sex relationship or if verification of a committed same-sex relationship would be more effective if
it were centralized within OPM. Congress may choose to enact legislation that would make OPM
the central clearinghouse for 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.99 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. Moreover, many federal employees may leave one agency to take a temporary or
permanent position in another. OPM may provide the most logical clearinghouse for benefits
processing because it could remove the need for employees who move from one agency to
another to reapply for the same benefits. 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 certify employee affidavits would not task
OPM with a responsibility it may not have the capacity to undertake. Some have expressed the
concerns about the potential for abuse and that some employees may claim to be in a partnership
97 A state or local government-issued marriage license would not qualify for federal legal purposes because DOMA
prohibits federal recognition of same-sex marriages.
98 In most cases, agencies do not require a federal employee to provide the original or a copy of the marriage license to
qualify for the extension of benefits to a spouse. Both bills in the 112th Congress that seek to extend benefits to same-
sex partners of federal employees, however, would require the federal employee to sign an affidavit stating that he or
she is in a “committed domestic-partnership.” See H.R. 3485 and S. 1910.
99 Agencies already administer the provision of certain benefits to spouses or same-sex partners, such as requests for
sick leave or FMLA.
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solely for the purpose of receiving benefits.100 This could be the case if the requirements for
obtaining recognition of a domestic partnership were less stringent than the requirements for
opposite sex couples to obtain a marriage license.
Benefits for Domestic Partners
Some federal employees may not be married to their domestic partners, whether that partner is of
the same 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. In a House Oversight and Government Reform Committee report that accompanied a
bill in the 111th Congress that sought to extend same-sex partner benefits, the committee wrote the
following:
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.101
Congress may choose to extend benefits only to those in legally recognized same-sex domestic
partnerships. This limitation would control the costs associated with extending partner benefits by
restricting the number of possible beneficiaries. 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 more candidates to federal jobs. 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.
Taxation of Benefits102
DOMA precludes same-sex partners from being recognized as a married couple under the Internal
Revenue Code (IRC).103 A complete overview and analysis of the tax implications of same-sex
marriage is beyond the scope of this report. However, the tax treatment of health benefits may be
100 See, for example, the testimony of the Deputy Director of OPM at a hearing of the Senate Committee on Homeland
Security and Governmental Affairs. See U.S. Congress, Senate Committee on Homeland Security and Governmental
Affairs, Domestic Partner Benefits for Federal Employees: Fair Policy and Good Business, 110th Cong., 2nd sess.,
September 24, 2008, S. Hrg. 110-944 (Washington: GPO, 2008).
101 H.Rept. 111-400, Part 1, p. 26 (footnote 6).
102 This section of the report was written by Margot L. Crandall-Hollick, Analyst in Public Finance.
103 Generally, the IRS does not recognize same sex couples as married. The IRS has ruled however, that starting in
2010 same sex couples living in states that recognize domestic partnerships and have community property laws
(California, Nevada, and Washington), may combine their incomes and divide them equally, but still file as single or
head of household. This may result in a reduction in the couple’s overall tax liability if they would have been subject to
a marriage penalty. In practice, some same sex couples have had difficulty complying with this ruling. For more
information, see Laura Saunders, “Same-Sex Couples and the Marriage Penalty,” The Wall Street Journal, February 19,
2011, and Scott James, “From I.R.S. to Gay Couples, Headaches and Expenses,” The New York Times, June 11, 2011.
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Federal Benefits and the Same-Sex Partners of Federal Employees
relevant to federal employees who are in same-sex relationships, particularly when one member
of the couple works in the private sector.
Same-sex couples have a larger tax liability when one partner’s health insurance benefits are
extended to the other partner. While a federal employee’s health plan cannot cover a same-sex
partner, certain employers in the private sector choose to extend health insurance coverage to
same-sex partners. The extension of this benefit often increases the tax liability of a same-sex
couple. Under current law, opposite-sex spouses can exclude from gross income employer
contributions to their health insurance plans. As a result of DOMA, same-sex couples must pay
taxes on the employer contributions that cover a same-sex partner, sometimes referred to as
“imputed income.” For example, if an employer contributed $80 per paycheck to the cost of an
employee’s health insurance plan that covered a same sex partner, the employee would have to
include some portion of the $80 in their gross income, increasing their taxable income (including
payroll taxes) and ultimately their tax liability.104
In addition, if federal health benefits were extended to same-sex couples, but DOMA was not
repealed, federal employees who extended their health coverage to their same-sex partner would
also be subject to additional taxation from the “imputed income,” as defined above.
Author Contact Information
Wendy Ginsberg
John J. Topoleski
Analyst in American National Government
Analyst in Income Security
wginsberg@crs.loc.gov, 7-3933
jtopoleski@crs.loc.gov, 7-2290
Acknowledgments
Alison M. Smith, legislative attorney, contributed to this report.
104 Some employers have chosen to compensate same sex employees for the additional tax liability that occurs when
health benefits are extended to a same sex partner. This policy is called “grossing up.” For more information, see Tara
Siegel Bernard, “For Gay Employees, an Equalizer,” The New York Times, May 20, 2011.
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