Federal Employee Benefits and Same-Sex Partnerships

This report examines the current policies on the application of benefits to same-sex partners and reviews the policy debate on extending benefits to same-sex partners. This report is about federal benefits for same-sex partners and not about same-sex relationships in general.

Federal Employee Benefits and Same-Sex Partnerships Wendy R. Ginsberg Analyst in Government Organization and Management March 3, 2011 Congressional Research Service 7-5700 www.crs.gov R41030 CRS Report for Congress Prepared for Members and Committees of Congress Federal Employee Benefits and Same-Sex Partnerships Summary The federal government provides a variety of benefits to its 8 million employees and annuitants. Among these benefits are health insurance; enhanced dental and vision benefits; survivor benefits; retirement and disability benefits; family, medical, and emergency leave; and reimbursement of relocation costs. Pursuant to Title 5 U.S.C. Chapters 89, 89A, 89B, and other statutes, millions of federal employees may extend these benefits to their spouses and children. An estimated 34,000 federal employees are in same-sex relationships, including state-recognized marriages, civil unions, or domestic partnerships. The Defense of Marriage Act (DOMA) prohibits federal recognition of these unions for purposes of federal enactments. Some federal employees and Members of Congress argue that same-sex partners of federal employees should have access to benefits afforded married, opposite-sex couples. No legislation addressing same-sex partner benefits has been introduced in the 112th Congress. But companion bills that sought to extend certain benefits to the same-sex partners of federal employees and annuitants were introduced in the 111th Congress. On May 20, 2009, Senators Joseph Lieberman and Susan Collins introduced S. 1102. That same day, Representative Tammy Baldwin introduced H.R. 2517. Neither bill was enacted. On December 17, 2009, the Congressional Budget Office released its cost estimate of H.R. 2517, stating that enacting the legislation “would increase direct spending by $596 million through 2019” and discretionary spending would increase $302 million over the same period of time. The executive branch has taken action on the issue of extending benefits to same-sex spouses of federal employees and annuitants. On June 17, 2009, President Barack Obama issued a memorandum directing executive agencies to extend benefits to the domestic partners of federal employees within the authority of existing law. On July 10, 2009, Office of Personnel Management Director John Berry issued a memorandum directing executive-branch agencies to review all benefits offered to employees who are married to someone of the opposite gender. The agencies were directed to determine whether the benefits listed were or could be extended to the same-sex domestic partners of federal employees. On June 2, 2010, President Obama released a second memorandum that extended specific benefits to the same-sex partners of federal employees, including coverage of travel, relocation, and subsistence payments. The Administration has also decided not to defend certain sections of DOMA in two pending lawsuits. On February 23, 2011, Attorney General Eric Holder announced that the Department of Justice would no longer “defend the constitutionality” of Section 3 of DOMA , which defines marriage for federal purposes as only between a man and a woman. On that same day, White House Press Secretary Jay Carney said that enforcement of DOMA as applied to existing federal policies would continue. This report examines the current policies on the application of benefits to same-sex partners and reviews the policy debate on extending benefits to same-sex partners. This report is about federal benefits for same-sex partners and not about same-sex relationships in general. Congressional Research Service Federal Employee Benefits and Same-Sex Partnerships Contents Introduction ................................................................................................................................1 DOMA and the Extension of Federal Benefits .............................................................................3 Health Benefits .....................................................................................................................4 Dental and Vision Benefits ....................................................................................................5 Federal Employment Compensation Act Benefits ..................................................................5 Federal Employee Pensions and Survivor Benefits ................................................................5 Family and Medical Leave Act..............................................................................................6 Other Types of Leave ......................................................................................................7 Federal Long Term Care........................................................................................................8 Life Insurance.......................................................................................................................9 th 111 Congress Legislation ........................................................................................................ 10 Congressional Action in the 111th Congress ......................................................................... 11 H.R. 2517 ..................................................................................................................... 11 S. 1102.......................................................................................................................... 14 Executive Branch Action........................................................................................................... 14 Extension of Benefits Not Affected by DOMA .................................................................... 15 Changes in Legal Defense of DOMA .................................................................................. 16 Cost Estimates .......................................................................................................................... 18 Office of Personnel Management ........................................................................................ 18 The Williams Institute......................................................................................................... 18 The Congressional Budget Office........................................................................................ 22 Analysis.................................................................................................................................... 23 Specific Issues .................................................................................................................... 24 Application to Every State............................................................................................. 24 Extending Benefits Beyond Same-Sex Partners ............................................................. 25 OPM Technical Amendments .............................................................................................. 26 OPM as Clearinghouse.................................................................................................. 26 Making Benefits and Obligations Identical .................................................................... 27 Tax Status of Benefits ................................................................................................... 27 Tables Table 1. Estimated Costs to the Federal Government if Benefits Were Extended to SameSex Domestic Partners ........................................................................................................... 20 Table 2. CBO’s Estimated Changes in Federal Outlays if H.R. 2517 or S. 1102 Were Enacted.................................................................................................................................. 22 Contacts Author Contact Information ...................................................................................................... 28 Acknowledgments .................................................................................................................... 28 Congressional Research Service Federal Employee Benefits and Same-Sex Partnerships Introduction The federal government provides a variety of benefits to its 8 million employees and annuitants.1 Among these benefits are health insurance; enhanced dental and vision benefits; retirement and disability benefits and plans; survivor benefits; family, medical, and emergency leave; and reimbursement of relocation costs. Pursuant to Title 5 U.S.C. Chapters 89, 89A, 89B, and other statutes, federal employees who are married to opposite-sex partners may extend these benefits to their spouses and children. An estimated 34,000 federal employees and annuitants are in same-sex relationships, including state-recognized marriages, civil unions, or domestic partnerships.2 The Defense of Marriage Act (DOMA) limits the recognition of these relationships for purposes of some federal benefits.3 Specifically, DOMA states In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.4 While DOMA does limit recognition of some benefits to same-sex partners, some agencies permit employees in same-sex relationships to extend certain health and other federal benefits to samesex domestic partners; other agencies do not.5 No legislation that seeks to extend certain federal benefits to the same-sex partners of federal employees has been introduced in the 112th Congress. Companion bills that sought to extend a variety of benefits to the same-sex partners of federal employees and annuitants were introduced in the 111th Congress: H.R. 2517 and S. 1102. Pursuant to H.R. 2517 and S. 1102, federal employees or annuitants seeking to extend federal benefits to their same-sex partners would have 1 This number includes employees and annuitants of the U.S. Postal Service. U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, FEHBP’s Prescription Drug Benefits, 111th Cong., 1st sess., June 24, 2009, http://www.opm.gov/News_Events/ congress/testimony/111thCongress/06_24_2009.asp. 2 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, Testimony of M.V. Lee Badgett, H.R. 2517, The “Domestic Partnership and Benefits and Obligation Act of 2009,” H.R. 2517, 111th Cong., 1st sess., July 8, 2009, http://federalworkforce.oversight.house.gov/documents/20090708125728.pdf. Five states currently allow same-sex couples to marry. These states are Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont. Legislation that would make same-sex marriage legal in the District of Columbia was approved by the District of Columbia City Council and signed by then-Mayor Adrian M. Fenty on December 18, 2009. Same-sex couples could legally marry in the District of Columbia as of March 9, 2010. Some states, districts, and territories sanction same-sex partnerships or civil unions, giving the couples involved rights that are similar to those given to a married opposite-sex couple. These partnerships are not generally recognized by the federal government. 3 For more information on DOMA and its effects on same-sex marriages, see CRS Report RL31994, Same-Sex Marriages: Legal Issues, by Alison M. Smith. 4 1 U.S.C. §7. 5 For example, on June 18, 2009, one day after President Barack Obama released his memorandum seeking to extend benefits to same-sex partners, Secretary of State Hillary Clinton directed her agency to extend a variety of relocation, medical, and other benefits to the partners of employees in same-sex, committed relationships. Congressional Research Service 1 Federal Employee Benefits and Same-Sex Partnerships been required to “file an affidavit of eligibility for benefits and obligations with the Office of Personnel Management” (OPM) to qualify as recipients of the benefits. In the affidavit, the employee would verify several criteria, including a requirement that the same-sex partners have an intent to remain together “indefinitely.”6 The legislation also would have extended certain benefits to the children of a same-sex partner. The bills would have defined “domestic partner” as “an adult unmarried person living with another adult unmarried person of the same sex in a committed, intimate relationship.” It would appear that this definition could exclude same-sex couples legally married under state law from qualifying for the benefits that the bill would extend. On June 17, 2009, President Barack Obama issued a memorandum directing executive agencies to extend benefits to federal employees in same-sex domestic partnerships or same-sex marriages7 within the authority of existing law. 8 On July 10, 2009, OPM Director John Berry issued a memorandum directing all executive-branch agencies to review and report on the benefits offered to opposite-sex partners—whether married or not—of federal employees.9 OPM and the Department of Justice (DOJ) reviewed these reports and made suggestions to President Obama on how to further pursue extension of benefits to the same-sex partners of federal employees. On June 2, 2010, President Obama released a second memorandum extending specific benefits to the same-sex partners of federal employees, including coverage of travel, relocation, and subsistence payments. Among the benefits extended by the memorandum was the extension of certain childcare and sick leave benefits that had previously only been available to opposite-sex spouses, including the authority to take up to 24 hours of unpaid leave when his or her same-sex partner or his or her partner’s child is ill. The extended benefits were made available upon the memorandum’s release. On February 23, 2011, the Obama Administration notified congressional leaders it would no longer “defend the constitutionality of Section 3 of DOMA” in certain cases.10 Section 3 is the portion of DOMA that defines marriage for federal purposes as only between a man and a woman. While the Administration’s decision directly applies to two pending lawsuits—Pedersen v. OPM and Windsor v. United States—it is unclear what other pending litigation it could affect. Congress can decide whether to defend Section 3 of DOMA in the pending cases. 6 The seven criteria are described later in this report. 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, samesex partners who chose not to get married, and partners who have been unable to get married for any reason. According to a telephone conversation with an OPM official on November 18, 2009, federal employees who are in opposite-sex common-law marriages qualify for federal benefits. Common law marriages, which are recognized in nine states and the District of Columbia, are defined differently in each state. Generally, however, such a marriage requires a couple to live together for an unspecified but considerable length of time, and to generally understand themselves to operate as a married couple, despite not having a traditional marriage ceremony. 8 U.S. President (Obama), “Memorandum for the Heads of Executive Departments and Agencies, Subject: Federal Benefits and Non-discrimination,” June 17, 2009, http://www.whitehouse.gov/the_press_office/Memorandum-for-theHeads-of-Executive-Departments-and-Agencies-on-Federal-Benefits-and-Non-Discrimination-6-17-09/. Among the benefits that could be extended are relocation and travel expenses for same-sex domestic partners. Some departments and agencies, including the State Department, already extend such benefits. 9 John Berry, Memorandum for Heads of Executive Departments and Agencies, Office of Personnel Management, Subject: Federal Benefits for Same-Sex Domestic Partners, July 10, 2009, http://www.chcoc.gov/Transmittals/ TransmittalDetails.aspx?TransmittalId=2384. 10 U.S. Department of Justice, “Statement of the Attorney General on Litigation Involving the Defense of Marriage Act,” press release, February 23, 2011, http://www.justice.gov/opa/pr/2011/February/11-ag-222.html. 7 Congressional Research Service 2 Federal Employee Benefits and Same-Sex Partnerships Regardless of the Administration’s decision not to defend Section 3 of DOMA in the two pending cases, White House Spokesman Jay Carney said the “President is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.”11 A 2008 study estimated the cost of extending same-sex partner benefits to federal employees at $41 million in the first year and $675 million over 10 years.12 On December 17, 2009, the Congressional Budget Office (CBO) released its cost estimate of H.R. 2517, and stated that enacting the legislation “would increase direct spending by $596 million through 2019” and discretionary spending by $302 million over the same period of time. 13 This report is about federal benefits for same-sex partners and not about same-sex relationships in general. DOMA and the Extension of Federal Benefits The federal government provides health and other benefits to roughly 8 million federal employees and annuitants.14 Among these benefits are health insurance; enhanced dental and vision benefits; retirement and disability benefits and plans; survivor benefits; family, medical, and emergency leave; and reimbursement of relocation costs. Various federal laws and regulations determine who is eligible to receive these benefits. A federal employee who is married to someone of the opposite gender can, pursuant to federal law, extend many of his or her benefits to his or her spouse. The Defense of Marriage Act (DOMA)15 affects the application of some benefits to the partners of federal employees. 16 DOMA defines “marriage” explicitly as “only a legal union between one man and one woman as husband and wife.”17 DOMA defines “spouse” as “a person of the opposite sex who is a husband or a wife.”18 Pursuant to 1 U.S.C. §7, these definitions are to be used when “determining the meaning of any Act of Congress.”19 As such, DOMA has played a 11 The White House Office of the Press Secretary, The White House Office of the Press Secretary, “Press Briefing by Press Secretary Jay Carney, 2/23/2011,” press release, February 23, 2011, http://www.whitehouse.gov/the-press-office/ 2011/02/23/press-briefing-press-secretary-jay-carney-2232011. 12 Naomi Goldberg, Christopher Ramos, and M.V. Lee Badgett, The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners, The Williams Institute, September 2008, p. 1. 13 Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, December 17, 2009, p. 1, http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf. 14 This number includes employees and annuitants of the U.S. Postal Service. U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, FEHBP’s Prescription Drug Benefits, 111th Cong., 1st sess., June 24, 2009, http://www.opm.gov/News_Events/ congress/testimony/111thCongress/06_24_2009.asp. 15 P.L. 104-199; 1 U.S.C. §7. 16 The partner of a federal employee of the opposite gender would also not be eligible for these benefits. This report, however, focuses on eligibility of same-sex domestic partners. 17 1 U.S.C. §7. 18 Ibid. 19 For more information on DOMA, see CRS Report RL31994, Same-Sex Marriages: Legal Issues, by Alison M. Smith. Congressional Research Service 3 Federal Employee Benefits and Same-Sex Partnerships critical role in determining whether the same-sex partners of federal employees are eligible for certain federal benefits.20 Companion bills introduced in the 111th Congress (S. 1102 and H.R. 2517)21 would have allowed various federal benefits to be extended to the same-sex partners of qualifying federal employees and annuitants. Reviewed below are some federal benefits that have been mentioned in both previously pending legislation and executive-branch memoranda. Whether the same-sex domestic partners of federal employees and annuitants qualify for such benefits under existing federal laws and regulations is discussed. Health Benefits The Federal Employees Health Benefits Program (FEHBP) (5 U.S.C. §8909; 5 C.F.R. §890) offers health benefits to qualifying federal employees and encompasses nearly 300 different health care plans. As with health care plans in the private sector, FEHBP provides benefits to enrollees for costs associated with a health checkup, an injury, or an illness. Health care costs are shared between the federal government and the enrollee. According to a 2008 study, the federal government pays, on average, 71% of a health plan’s premium and 29% of the premium’s cost is paid by the employee. 22 Pursuant to the Code of Federal Regulations, certain family members of a federal employee are eligible to enroll in FEHBP.23 Among those eligible are an employee’s spouse and children under age 22.24 The OPM website that explains eligibility requirements for FEHBP enrollees includes the following excerpt on same-sex domestic partner benefits: Same sex partners are not eligible family members. The law defines family members as a spouse and an unmarried dependent child under age 22. P.L. 104-199, Defense of Marriage Act, states, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”25 20 Two federal judges on the 9th Circuit Court of Appeals, acting in their capacities as hearing officers for circuit employee disputes, concluded that the denial of health benefits to a same-sex spouse violated the 9th Circuit’s Employment Dispute Resolution Plan. One order declared DOMA unconstitutional while the other avoided the constitutionality issue and concluded that ambiguous language in the federal health benefits act allowed the benefits. The precedential value of these decisions is unclear as the judges acted in their capacities as administrative officials and not Article III judges. 21 References to the bills are to the versions that were introduced unless otherwise noted. 22 Naomi Goldberg, Christopher Ramos, and M.V. Lee Badgett, The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners, The Williams Institute, September 2008, p. 4. The health care benefit costs for the U.S. Postal Service’s (USPS’s) 765,000 employees is borne by USPS and the employees. Pursuant to bargaining contracts, USPS pays, on average, 84% of its employees’ health care benefit premiums, and employees pay 16%. 23 5 C.F.R. §890.302. 24 Ibid. A federal employee’s child includes a “legitimate child,” “an adopted child,” or a “stepchild, foster child, or recognized natural child who lives with the enrollee in a regular parent-child relationship.” As of January 1, 2011, an eligible dependent child may be up to 26 years old, pursuant to P.L. 111-148, the Patient Protection and Affordable Care Act. For more information see U.S. Office of Personnel Management, “Health: Reform,” http://www.opm.gov/ insure/health/reform/index.asp. 25 U.S. Office of Personnel Management, “Federal Employees Health Benefits Program Handbook,” (continued...) Congressional Research Service 4 Federal Employee Benefits and Same-Sex Partnerships Neither same-sex domestic partners of federal employees—nor the partner’s children,26 therefore, are eligible to enroll in FEHBP. Dental and Vision Benefits Federal employees may choose to enroll in the Federal Dental and Vision Program (FEDVIP; P.L. 108-496; 5 U.S.C. Chapter 89A and 5 U.S.C. Chapter 89B), which provides vision and dental benefits in addition to the limited coverage provided by FEHBP. Unlike FEHBP, however, the enrollee pays all benefit premium costs and the federal government does not contribute to the benefit’s premiums. Like federal health benefits, federal employees may extend FEDVIP benefits to family members. Eligibility rules are identical to FEHBP’s regulations.27 Both the Enhanced Dental Benefits program (5 U.S.C. §8951) and the Enhanced Vision Benefits program (5 U.S.C. §8981) are not extended to the same-sex partners of federal employees who are eligible for the benefit. OPM states on its website that “[t]he rules for family members’ eligibility are the same as they are for the” FEHBP for both the dental and the vision programs.28 Federal Employment Compensation Act Benefits A federal employee is eligible for up to $100,000 in compensation if he or she is disabled while performing his or her job, pursuant to the Federal Employment Compensation Act (FECA; 5 U.S.C. Chapter 81). If an employee is killed while performing his or her job, 5 U.S.C. §8102a requires that payment go to the deceased employee’s spouse or children. The federal employee may also designate his or her parents or siblings as the compensation recipient. 29 The same-sex partner of a federal employee is not listed in statute among the eligible recipients of such compensation. Section (g)(1)(F) of both H.R. 2517 and S. 1102 would have extended this benefit to the same-sex partners of federal employees. Federal Employee Pensions and Survivor Benefits Federal employees with permanent appointments are eligible for retirement and disability benefits under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS).30 All federal employees initially hired into permanent federal employment on or (...continued) http://www.opm.gov/insure/health/reference/handbook/fehb28.asp. 26 If a federal employee legally adopted the child of his or her same-sex partner, the child would be eligible to receive federal benefits. 5 C.F.R. §890.302. 27 U.S. Office of Personnel Management, “Federal Employees Dental and Vision Insurance Program (FEDVIP),” http://www.opm.gov/insure/archive/dentalvision/. 28 U.S. Office of Personnel Management, “Dental: Introduction,” http://www.opm.gov/insure/dental/index.asp; and U.S. office of Personnel Management, “Vision: Introduction” http://www.opm.gov/insure/vision/index.asp. 29 5 U.S.C. § 8102a(d)(1). 30 For more information on CSRS or FERS, see CRS Report 98-810, Federal Employees’ Retirement System: Benefits and Financing, by Katelin P. Isaacs. Congressional Research Service 5 Federal Employee Benefits and Same-Sex Partnerships after January 1, 1984, are covered by FERS. Employees hired before January 1, 1984, are covered by CSRS unless they chose to switch to FERS during open seasons held in 1987 and 1998. Both FERS and CSRS provide survivor benefits for the spouse and dependent children of a deceased federal employee or retiree.31 Both CSRS and FERS are subject to the statutory interpretation required by DOMA in determining eligibility for survivor or dependant benefits under CSRS or FERS. As noted earlier, “the word ‘spouse’ in DOMA refers only to a person of the opposite sex who is a husband or a wife.”32 An employee or former employee can designate anyone as a beneficiary who will receive his or her Thrift Savings Plan (TSP) account balance in the event of the participant’s death. TSP is a defined contribution (DC) retirement plan similar to the 401(k) plans provided by many employers in the private sector.33 Designation of a beneficiary must be done by filing Form TSP-3 with the Federal Retirement Thrift Investment Board. The Thrift Board is not authorized to recognize wills or other estate planning documents. A participant married to a partner of the opposite sex is not required to designate his or her spouse as the beneficiary of the TSP account, nor is the spouse’s consent required to designate someone other than the spouse as the beneficiary of the TSP account.34 Although a federal employee cannot name a same-sex domestic partner as his or her surviving beneficiary under either FERS or CSRS, an employee who is applying for a non-disability retirement can elect an Insurable Interest Annuity (IIA). Only one person may be named as the beneficiary of the IIA, and the election must be made at the time of retirement. The person named as the beneficiary must be someone who is financially dependent on the employee, and the employee must establish, through one or more affidavits from other people, the reasons why the beneficiary might reasonably expect to suffer loss of financial support as a result of the employee’s death. The cost of an IIA can range from a 10% reduction in the employee’s retirement annuity if the beneficiary is 10 years younger than the employee to a 40% reduction if the beneficiary is 30 or more years younger. 35 Family and Medical Leave Act Pursuant to the Family and Medical Leave Act (FMLA; P.L. 103-3; 5 U.S.C. Chapter 63), certain federal employees are entitled to use up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons: • the birth of a child of the employee and follow-up care related to that birth; 31 See CRS Report RS21029, Survivor Benefits for Families of Civilian Federal Employees and Retirees, by Katelin P. Isaacs. 32 1 U.S.C. § 7. 33 “401(k)” refers to the section of the Internal Revenue Code that authorizes deferral of income taxes until the time of withdrawal for contributions to certain kinds of savings plans and for the interest and dividends on those contributions. 34 5 CFR §1651.4. See also CRS Report RS22856, Retirement and Survivor Annuities for Former Spouses of Federal Employees, by Katelin P. Isaacs. 35 For more information see CRS Report RS21897, The Effect of State-Legalized Same-Sex Marriage on Social Security Benefits, Pensions, and Individual Retirement Accounts (IRAs), by John J. Topoleski. Congressional Research Service 6 Federal Employee Benefits and Same-Sex Partnerships • the adoption of a child by the employee or placement of a foster child with the employee; • to care for an employee’s ailing spouse, child, or parent; or • an illness or condition of the employee that renders him or her unable to work. The 12 weeks of leave may be used intermittently throughout the year, when the employee meets statutory and regulatory requirements of FMLA.36 FMLA regulations (5 C.F.R. §630.1201) define “spouse” explicitly as “an individual who is a husband or wife pursuant to a marriage that is a legal union between one man and one woman, including common law marriage between one man and one woman in States where it is recognized.” A federal employee, therefore, may not use leave acquired pursuant to FMLA to care for an ailing same-sex domestic partner. A June 22, 2010, Administrator Interpretation of the FMLA expanded the act’s definition of “son or daughter” to permit an employee in a same-sex partnership to use FMLA-approved leave to care for the child of his or her same-sex partner.37 Prior to the Administrator Interpretation, a federal employee was not permitted to use leave acquired pursuant to FMLA to care for the ailing child of a same-sex domestic partner, unless the employee had legally adopted the child. Other Types of Leave On June 14, 2010, OPM released a final rule clarifying the definitions “family member” and “immediate relative” as they are used in determining eligibility for certain kinds of leave— including sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer.38 Formerly, the regulation had defined “family member” as any one of the following: • spouse, and parents thereof; • children, including adopted children and spouses thereof; • parents; • brothers and sisters; and • any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. 39 36 Pursuant to FMLA, federal employees are required to give employers at least 30 days’ notice prior to taking leave when the need for leave is foreseeable (5 U.S.C. §6382(e)). 37 Deputy Administrator Nancy J. Leppink, Administrator’s Interpretation No. 2010-3, U.S. Department of Labor, June 22, 2010, http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf. The interpretation now permits any person serving “in loco parentis” to use FMLA-approved leave to care for a child. The term “in loco parentis” is defined in the interpretation as someone “who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.” The new definition, therefore, is to include any adult-child relationship in which an adult is not the legal or biological parent of a child but he or she “has day-to-day responsibility for caring for a child.” 38 U.S. Office of Personnel Management, “Absence and Leave; Definition of Family Member, Immediate Relative, and Related Terms,” 75 Federal Register 33491-33497, June 14, 2010. 39 5 C.F.R. §630.201. The definition of “immediate relative” was identically modified in 5 C.F.R. §630.803. The definitions of “committed relationship,” “domestic partner,” “family member,” “parent,” and “son or daughter” were (continued...) Congressional Research Service 7 Federal Employee Benefits and Same-Sex Partnerships Pursuant to the new regulation, the definition of family member will now also include • grandparents and grandchildren, and spouses thereof; and • a domestic partner and parents thereof, including the domestic partner of any of the relatives listed above. 40 The regulation also modified existing or added new definitions to the Code of Federal Regulations, including the terms “committed relationship,”41 “domestic partner,”42 “parent,”43 and “son or daughter.”44 The regulation applies to both same-sex and opposite-sex partnerships, provided that the partnership is recognized by a state, territory, or district government. The regulation is effective as of June 14, 2010. The regulation does not affect FMLA. Federal Long Term Care Federal employees may also apply for the Federal Long Term Care Insurance Program (FLTCIP; P.L. 106-265; 5 U.S.C. §9001), which provides medical services for enrollees who suffer a chronic medical condition and are unable to care for themselves. Employees may voluntarily opt into FLTCIP, and the entire premium is covered by the enrollee. Pursuant to 5 U.S.C. §9001, qualifying federal employees; members of the uniformed services; federal annuitants; current spouses of federal employees, service members, or annuitants; adult children of federal employees, service members, or annuitants; and parents, parents-in-law, and stepparents of federal employees, service members, or annuitants are eligible to enroll in FLTCIP. In addition, federal law states that OPM may prescribe regulations that permit an “individual having such other relationship” to a federal employee, service member, or annuitant to enroll in FLTCIP.45 On September 14, 2009, OPM issued a proposed regulation in the Federal Register that would expand the definition of “qualified relative” to include “the same-sex domestic partners of eligible Federal and U.S. Postal Service employees and annuitants.”46 OPM accepted comments (...continued) modified in or added to 5 C.F.R. §630.902. 40 U.S. Office of Personnel Management, “Absence and Leave; Definition of Family Member, Immediate Relative, and Related Terms,” 75 Federal Register 33495, June 14, 2010. 41 Ibid., p. 33496. The regulation defined the term as follows: A relationship “in which the employee, and the domestic partner of the employee, are each other’s sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other’s common welfare and financial obligations. This includes, but is not limited to, any relationship between two individuals of the same or opposite sex that is granted legal recognition by a State or by the District of Columbia as a marriage or analogous relationship (including, but not limited to, a civil union).” 42 Ibid. The regulation defined the term as follows: “[A]n adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.” 43 Ibid. The regulation modified the term by adding a “parent … of an employee’s spouse or domestic partner.” 44 Ibid. The regulation modified the term by adding a “son or daughter … of an employee’s spouse or domestic partner.” 45 5 U.S.C. §9001(5)(D). 46 U.S. Office of Personnel Management, “Federal Long Term Care Insurance Program: Eligibility Changes,” 74 Federal Register 46937, September 14, 2009. According to the proposed rule, “domestic partner” is defined as follows: “domestic partner’’ is a person in a domestic partnership with an employee or annuitant of the same sex. The term “domestic partnership’’ is defined as a committed relationship between two adults, of the same sex, in which the partners—are each other’s sole domestic partner and intend to remain so (continued...) Congressional Research Service 8 Federal Employee Benefits and Same-Sex Partnerships on the proposed regulation until November 13, 2009. On June 1, 2010, OPM published in the Federal Register a final rule that left the language from the September 14, 2009, proposal unchanged. Same-sex partners, therefore, will be eligible for FLTCIP benefits—which were not previously available to them—as of July 1, 2010.47 Several comments received by OPM during the regulatory review of the definition change of “qualified relative” requested that opposite-sex domestic partners—in addition to same-sex partners—be made eligible for the long term care benefit. In the final rule, however, OPM wrote that “opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners.”48 Life Insurance Pursuant to 5 U.S.C. Chapter 87, most federal employees, including part-time employees, are automatically enrolled in the Federal Employees’ Group Life Insurance (FEGLI) program, which is administered by Metropolitan Life Insurance Company.49 Federal employees pay two-thirds of their life-insurance premium, and the federal government pays the remaining third.50 A federal employee may designate anyone, including a same-sex partner, as their life insurance beneficiary by filing an SF 2823 form. 51 If an employee married to an opposite-sex partner does not designate a beneficiary, his or her spouse would receive the federal benefit, pursuant to federal law (5 U.S.C. §8705(a)). The definition of “family member” in 5 U.S.C. §8701, the section of the U.S. Code related to life insurance benefits, includes the phrase “spouse of the individual.” The term “spouse” does not explicitly state that a same-sex partner would be excluded from the benefit. Title 5 U.S.C. §8705, however, delineates the order of preference in which life insurance benefits would be distributed in the event of a federal employee’s death. Pursuant to the law, the benefit would first be distributed to any person or entity that was selected by the employee using the SF 2823 form. If no form were completed, the benefit would then go to “the widow or widower of the (...continued) indefinitely; have a common residence, and intend to continue the arrangement indefinitely; are at least 18 years of age and mentally competent to consent to contract; share responsibility for a significant measure of each other’s financial obligations; are not married to anyone else; are not a domestic partner of anyone else; are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the state in which they reside; will certify they understand that willful falsification of the documentation described in paragraph (a) of this section may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification and may constitute a criminal violation under 18 U.S.C. § 1001. 47 U.S. Office of Personnel Management, “Federal Long Term Care Insurance Program: Eligibility Changes,” 75 Federal Register 30267-30268, June 1, 2010. 48 Ibid., p. 30267. 49 A qualifying federal employee may be exempted from the life insurance program if he or she provides required written notice of the desired exemption (5 U.S.C. §8702). Qualifying federal employees may choose to enroll in additional life insurance coverage. 50 The U.S. Postal Service pays 100% of the life insurance premium. 51 For more information about the SF 2823, see U.S. Office of Personnel Management, “Life: Designation of Beneficiary,” http://www.opm.gov/insure/life/fegli/sf2823.asp. Congressional Research Service 9 Federal Employee Benefits and Same-Sex Partnerships employee.”52 It would appear that DOMA would preclude same-sex domestic partners from qualifying as a widow or widower. 111th Congress Legislation On May 20, 2009, companion bills that sought to extend various health benefits to same-sex domestic partners of qualifying federal employees were introduced in the Senate and in the House of Representatives. Senators Joseph Lieberman and Susan Collins jointly introduced the Domestic Partnership Benefits and Obligations Act of 2009 (S. 1102); Representative Tammy Baldwin introduced an identical bill in the House (H.R. 2517). Pursuant to the legislation, six months after the bill was enacted, the domestic same-sex partner of a federal employee would have been “entitled to benefits available to, and shall be subject to obligations imposed upon, a married employee and the spouse of the employee.”53 Among these benefits were • health insurance and enhanced dental and vision benefits (5 U.S.C. §89, 89A, 89B); • retirement and disability benefits and plans (5 U.S.C. Chapters 83, 84; 22 U.S.C. §4101 et seq.; 50 U.S.C. Chapter 38); • family, medical, and emergency leave (5 U.S.C. Chapter 63 – subchapters II, IV, and V; 29 U.S.C. § 2601 et seq.; 2 U.S.C. §1312; 3 U.S.C. §412); • federal group life insurance (5 U.S.C. Chapter 87); • long-term care insurance (5 U.S.C. Chapter 90); • compensation for work injuries (5 U.S.C. Chapter 81); • benefits for disability, death, or captivity (5 U.S.C. §§5569 and 5570; 22 U.S.C. §3973; 42 U.S.C. 3796 et seq.); • travel, transportation, and related payments and benefits (5 U.S.C. Chapter 57; 22 U.S.C. § 4981 et seq.; 10 U.S.C. §1599(b); and • any other benefit similar to a benefit described above. Each qualifying federal employee who sought to enroll his or her same-sex domestic partner in a federal benefit program would have been required to file an affidavit of eligibility with OPM54 “identifying” his or her domestic partner and “certifying” that he or she meets several other criteria. The bill defined a domestic partner as “an adult unmarried person living with another adult unmarried person of the same sex in a committed, intimate relationship.” In the affidavit, the employee and the same-sex domestic partner would have had to verify that they 52 • are one another’s “sole domestic partner and intend to remain so indefinitely”; • “have a common residence and intend to continue the arrangement”; 5 U.S.C. §8705(a). 53 S. 1102, Sec. 2. Information provided in this section is taken from S. 1102, as introduced. The analysis, however, also applies to H.R. 2517, as introduced, as the bills are identical. 54 Section 2(e) of the legislation requires OPM to use the information provided by an employee only for the purposes of determining eligibility. Congressional Research Service 10 Federal Employee Benefits and Same-Sex Partnerships • are at least 18 years old and are “mentally competent to consent to contract”; • “share responsibility for a significant measure of each other’s common welfare and financial obligations”; • “are not married to or domestic partners with anyone else”; • “are same sex domestic partners, and not related in a way that, if the [two] were of opposite sex, would prohibit legal marriage in the state in which they reside”; and • “understand that willful falsification of information within the affidavit may lead to disciplinary action,” including both civil and criminal penalties (S. 1102, Sec. 2).55 The legislation also required a federal employee to file a statement of dissolution within 30 days of the death of his or her same-sex partner or the dissolution of the relationship. 56 The legislation stated that if the employee’s same-sex relationship ended for any reason other than death, the partner would have been “entitled to benefits available to, and shall be subject to obligations imposed upon, a former spouse.” Similarly, if the federal employee were to die, the same-sex partner would have received benefits identical to those that would be given to a widow or widower of an opposite-sex partner (S. 1102, Sec. 2(c)). Natural or adopted step children of a federal employee’s domestic partner would have been “deemed a stepchild of the employee,” pursuant to the bill. Congressional Action in the 111th Congress H.R. 2517 On May 20, 2009, H.R. 2517 was concurrently referred to the Committee on House Administration, the Committee on the Judiciary, and the Committee on Oversight and Government Reform. The Committee on Oversight and Government Reform referred the bill to its subcommittee on the Federal Workforce, Postal Service, and the District of Columbia. On July 8, 2009, OPM Director Berry testified before the House Committee on Oversight and Government Reform, Subcommittee on the Federal Workforce, Postal Service, and the District of 55 The reported versions of the legislation from both congressional chambers were slightly different from the language in the legislation introduced in both the House and Senate. In the reported House version of the bill, for example, allowed the partners to live in separate locations “because of financial, employment-related, or other reasons” that would have to be identified in the affidavit. The introduced version of the bill required the partners to share a residence. See U.S. Congress, House Committee on Oversight and Government Reform, Domestic Partnership Benefits And Obligations Act of 2009, report to accompany H.R. 2517, 111th Cong., 2nd sess., January 22, 2010, H.Rept. 111-400, Part 1 (Washington: GPO, 2010), p. 3. The Senate version, as ordered reported, made similar definition changes as those made in the House’s reported version. 56 Defining the term “dissolution” may prove difficult. In an opposite-sex marriage, the dissolution of the relationship is determined by law. As many same sex partnerships are recognized in limited circumstances or not at all, the dissolution of such unions may vary based on jurisdiction. Moreover, the dissolution of partnerships entered into other jurisdictions may prove problematic. Determining when a same-sex relationship is officially dissolved is beyond the scope of this report. Congressional Research Service 11 Federal Employee Benefits and Same-Sex Partnerships Columbia.57 In his statement, Mr. Berry said that neither same-sex nor opposite-sex domestic partners are eligible for federal benefits, but added that opposite-sex domestic partners have the option to get married and qualify for benefits. Even in the few states where same-sex marriage is recognized, Mr. Berry said, such unions are not recognized under federal law because of DOMA. He continued: This policy is unjust and it directly undermines the federal government’s ability to recruit and retain the nation’s best workers. Historically, the federal government has in many ways been a progressive employer, but we’re behind the private sector and 19 states, including Alaska and Arizona, on this one. In his testimony, Mr. Berry estimated that providing health insurance and survivor benefits to the same-sex domestic partners of both current federal employees and federal annuitants would cost the federal government $56 million in 2010. He expressed a view that, This marginal increased cost—which equates to about 2-tenths of a percent of the entire cost to the Federal Government of [f]ederal employee health insurance—would be funded by the additional Government contribution payments for self and family health insurance plans. This includes $19 million in savings because retirees who elect survivor benefits for their domestic partners will experience a reduction in their annuity payments.58 Mr. Berry added that extending life, dental, and vision benefits to the same-sex partners of federal employees would not increase federal outlays because the costs “would be borne entirely by the gay and lesbian employees who enroll their partners in those benefit plans.” He recommended to the committee that the bill be amended to extend federal benefits to the same-sex domestic partners of federal annuitants and suggested that the committee clarify the tax status of the federal benefits. On July 30, 2009, the subcommittee conducted a markup on the bill. During the markup, Representatives opposed to the bill said extending benefits to same-sex domestic partners was in direct violation of DOMA.59 Other Members questioned whether same-sex couples should have to be together for a specific length of time before they could be eligible to apply for benefits.60 The legislation currently does not require a same-sex couple to be together for a specific length of time prior to becoming eligible for federal benefits.61 Federal employees who are married to someone of the opposite gender generally can apply for benefits immediately upon their marriage. 57 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, The Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009, http://www.opm.gov/News_Events/congress/testimony/111thCongress/ 07_08_2009.asp. 58 Ibid. H.R. 2517 and S. 1102 would not have extended benefits to the same-sex partners of federal annuitants. In his testimony, however, Mr. Berry recommended that the committee amend the existing bill language to include federal annuitants. 59 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on the Federal Workforce, Post Office, and District of Columbia, Markup of H.R. 2517 “The Domestic Partners Benefits and Obligations Act of 2009” H.R. 2517, 111th Cong., 1st sess., July 30, 2009, statement of Representative Mark Souter,http://republicans.oversight.house.gov/index.php?option=com_content&view=article&id=276:7-30-09-markupof-hr-2517-qthe-domestic-partners-benefits-and-obligations-act-of-2009q&catid=13&Itemid=&layout=default&date= 2009-11-01. 60 Ibid., statement of Representative Dan Burton. 61 There are exceptions to this immediate application. The Civil Service Retirement System, for example, requires a (continued...) Congressional Research Service 12 Federal Employee Benefits and Same-Sex Partnerships At the same markup, proponents of the legislation said the bill would ensure “equal pay for equal work” among federal employees.62 Proponents also stated that the federal government needed to compete with the private sector for the most effective and efficient employees. According to proponents, not providing benefits to employees’ same-sex partners could place the federal government at a competitive disadvantage. 63 During the markup session, the subcommittee adopted an amendment making technical changes to the bill that were recommended by OPM. On July 30, 2009, the subcommittee voted to report the bill favorably to the full committee. At the full committee’s markup session on November 18, 2009, similar arguments were made on both sides of the debate. Proponents said the bill would make the federal government a “model employer” and “foster a more inclusive workplace so we can attract the best and brightest to federal government.”64 Opponents stated that enacting the bill would be fiscally irresponsible, and would prompt a hike in health care premium costs for all federal employees.65 Furthermore, opponents called the bill “reckless deficit spending” at a time of high unemployment rates and financial difficulty for many Americans.66 At the markup, the committee adopted two amendments. One amendment clarified the process by which federal employees would apply and qualify for same-sex domestic partner benefits. A second amendment would require the Government Accountability Office (GAO) to conduct a study to determine whether the insurance premiums for all federal employees would increase as a result of the bill. In addition, the amendment would require GAO to study the bill’s effects on recruitment and retention rates in the federal workforce. The committee voted to report the bill favorably the same day. On January 22, 2010, the bill was reported. 67 On January 29, 2010, bill was automatically discharged from the House Administration and Judiciary committees pursuant to a deadline set by the Speaker of the House. On that same day, the bill was placed on the Union Calendar. No further action was taken on H.R. 2517. (...continued) federal employee to be married to his or her spouse for at least nine months before the spouse would be eligible to receive survivor benefits. See U.S. Office of Personnel Management, “Retirement Information and Services,” http://www.opm.gov/retire/pre/death/index.asp. 62 Ibid., Representative Stephen A. Lynch. 63 Ibid. 64 U.S. Congress, House Committee on Oversight and Government Reform, Markup of H.R. 2517 “The Domestic Partners Benefits and Obligations Act of 2009” H.R. 2517, 111th Cong., 1st sess., November 18, 2009, statement of Representative Edolphus Towns, http://www.youtube.com/watch?v=RWCbE1J5us4. (3 minute mark). 65 Ibid., statement of Representative Darrell Issa. 66 Ibid. 67 U.S. Congress, House Committee on Oversight and Government Reform, Domestic Partnership Benefits and Obligations Act of 2009, report to accompany H.R. 2517, 111th Cong., 2nd sess., January 22, 2010, H.Rept. 111-400, Part 1 (Washington: GPO, 2010). Congressional Research Service 13 Federal Employee Benefits and Same-Sex Partnerships S. 1102 On May 20, 2009, S. 1102 was referred to the Senate Committee on Homeland Security and Governmental Affairs. On October 15, 2009, the committee conducted a hearing on the legislation. In his opening statement, Chairman Joseph Lieberman, co-sponsor of the legislation, said the bill would prove to be an asset to a federal government facing a large wave of retirements: Senator Collins and I introduced this bill because we believe it is the fair and right thing to do, and also because it makes practical sense for the federal government as an employer. As we approach a generational change in the federal workforce that will see the retirement of approximately one-third of all federal employees, it seems to us to be just plain sensible to do all we can to attract and retain the “best and the brightest” to serve in the years ahead. This legislation would help accomplish that.68 Senator Collins, co-sponsor of S. 1102, said the legislation would help the federal government hire the most effective federal workers: When it comes to employment, the federal government must compete with the private sector in attracting the most qualified, skilled, and dedicated employees. Today, health, medical, and other benefits are a major component of any competitive employment package.69 On December 16, 2009, the committee voted to report the bill favorably, but with amendments that are similar to those included in the House bill. 70 At the meeting where the vote took place, Senator Collins reportedly expressed concerns that OPM had not yet revealed how it would cover any increased costs associated with enacting the bill, 71 but she, nonetheless, voted to favorably report the bill. No further action was taken on S. 1102. Executive Branch Action Although many federal benefits cannot be extended to the same-sex partners of federal employees under current law, certain agencies have extended other benefits. Certain agencies, for example, reportedly permit a federal employee in a same-sex relationship to use sick leave to care for an ailing partner. 72 In addition, on June 17, 2009, one day after President Obama released his memorandum on samesex benefits, Secretary of State Hillary Clinton directed her agency to extend a variety of 68 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, S. 1102, The “Domestic Partnership and Benefits and Obligation Act of 2009,” S. 1102, 111th Cong., 1st sess., October 15, 2009, http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=d5347e63-e680-4ebf-8b9d5eb5f8cd5e79. 69 Ibid. 70 Leah Nylen, “Senate Committee Approves Domestic Partners Bill,” CQ.com, December 16, 2009, http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/committees/111/committees1112009121600268787.html@committees&metapub=CQ-COMMITTEEMARKUPS&searchIndex=0&seqNum=1. 71 Joe Davidson, “Same-sex Benefits Advance, Quietly,” The Washington Post, December 17, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/12/16/AR2009121604178_pf.html. 72 “Obama OKs Some Benefits for Employees’ Same-sex Partners,” CNN.com, June 17, 2009, http://www.cnn.com/ 2009/POLITICS/06/16/obama.same.sex.benefits/index.html. Congressional Research Service 14 Federal Employee Benefits and Same-Sex Partnerships relocation, medical, and other benefits to the partners of employees in same-sex, committed relationships. Certain federal benefits that are not explicitly prohibited by law may be extended to such individuals at the discretion of the Department of Justice and each individual department or agency head. Extension of Benefits Not Affected by DOMA On June 17, 2009, President Barack Obama released a memorandum requesting that the Secretary of State and the Director of OPM, in consultation with the Department of Justice, “extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.”73 The memorandum also directed all executive departments and agencies to review and evaluate their existing employee benefits to determine “which may legally be extended to same-sex partners.”74 President Obama offered several reasons for releasing this memorandum. In his public statement accompanying the memorandum’s release, he said that his Administration “was not authorized by existing Federal law to provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples.” He also said that extending benefits to same-sex partners was “the right thing to do.”75 The President said many private companies already offer such benefits to same-sex domestic partners, which “helps them compete for and retain the brightest and most talented employees. The Federal Government is at a disadvantage on that score right now, and change is long overdue.”76 The memorandum required each executive department and agency to provide to the Director of OPM a report that included “a review of the benefits provided by their respective departments and agencies” in order “to determine what authority they have to extend such benefits to samesex domestic partners of Federal employees.” Agencies were given 90 days to complete their reviews. In addition, the memorandum instructed OPM to issue guidance regarding compliance with anti-discrimination policies in the hiring of federal employees (5 U.S.C. § 2302(b)(10)). The memorandum was explicit in stating that all extensions of benefits and protections be “consistent with Federal law.” No extension of benefits, therefore, could violate DOMA or any other law prohibiting the extension of benefits to same-sex domestic partners. The agency reports were due on September 15, 2009. OPM reviewed these reports and worked with the Department of Justice (DOJ) to recommend the extension of several federal benefits to the partners of federal employees in same-sex relationships. 73 President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, The White House: Office of the Press Secretary, Subject: Federal Benefits and Non-Discrimination, June 17, 2009, http://www.whitehouse.gov/assets/documents/2009fedbenefits_mem_rel.pdf. 74 The White House: Office of the Press Secretary, “Statement by the President on the Presidential Memorandum on Federal Benefits and Non-Discrimination, and Support of the Lieberman-Baldwin Benefits Legislation,” press release, June 17, 2009, http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-the-PresidentialMemorandum-on-Federal-Benefits-and-Non-Discrimination-and-Support-of-the-Lieberman-Baldwin-BenefitsLegislation/. 75 Ibid. 76 Ibid. Congressional Research Service 15 Federal Employee Benefits and Same-Sex Partnerships On June 2, 2010, President Obama released another memorandum that detailed the benefits OPM and DOJ recommended for extension to same-sex partners.77 Among the newly extended benefits was clarification that the child of a same-sex partners falls “within the definition of ‘child’ for purposes of [f]ederal child-care subsidies, and, where appropriate, for child-care services.”78 The memorandum required the following benefits be extended: • A same-sex partner will be deemed to have an insurable interest in a federal employee with respect to survivor annuities under the Civil Service Retirement System and the Federal Employees’ Retirement System (5 U.S.C. §§ 8339 and 8420). The employee will no longer have to file an affidavit with OPM certifying that his or her domestic partner is financially dependent on the employee. • A federal employee in a same-sex partnership is now eligible for 24 hours of unpaid leave when the child of a same-sex partner is dismissed early from school, a routine medical emergency occurs, or the same-sex partner or his or her child needs medical care. • The same-sex partner of a federal employee is now eligible to collect travel and relocation payments incurred as a result of their partner’s new job or reassignment. The benefit is also extended to a same-sex partner’s children. • A same-sex partner and his or her children are now eligible to join a credit union, use a fitness facility, or participate in planning and counseling services that are currently extended to an opposite-sex spouse and family members. The memorandum also required OPM to report annually to the President “on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.”79 Pursuant to the memorandum, the benefit extensions were effective immediately. Changes in Legal Defense of DOMA On February 23, 2011, the Obama Administration announced it would no longer “defend the constitutionality of Section 3 of DOMA” in certain cases. 80 Section 3 is the portion of DOMA that defines marriage for federal purposes as only between a man and a woman. While the announcement directly affects two pending lawsuits—Pedersen v. OPM and Windsor v. United States—it is unclear what effects it could have on other pending litigation. Attorney General Eric J. Holder said that the Administration had previously defended Section 3 of DOMA in federal court cases “in which binding circuit court precedents hold that laws singling out people based on 77 Barack Obama, Memorandum for the Heads of Executive Department and Agencies, The White House, Office of the Press Secretary, Extension of Benefits to Same-sex Domestic Partners of Federal Employees, Washington, D.C., June 2, 2010, http://www.whitehouse.gov/the-press-office/presidential-memorandum-extension-benefits-same-sex-domesticpartners-federal-emplo. 78 Ibid., p. 1. 79 Ibid., p. 3. 80 U.S. Department of Justice, “Statement of the Attorney General on Litigation Involving the Defense of Marriage Act,” press release, February 23, 2011, http://www.justice.gov/opa/pr/2011/February/11-ag-222.html. Congressional Research Service 16 Federal Employee Benefits and Same-Sex Partnerships sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.”81 Mr. Holder’s statement continued: While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.82 The Second Circuit, the circuit in which the Pedersen and Windsor cases are now pending, however, has “no established or binding standard for how laws concerning sexual orientation should be treated.”83 Holder continued: After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heighted standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.84 The Administration will only defend Section 3 of DOMA in cases where this new “heightened standard of scrutiny” cannot be applied.85 DOJ will continue to “remain parties to the cases and represent the interests of the United States throughout the litigation.”86 Mr. Holder ended his statement by saying “the wisdom and legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, [but] this Administration will no longer assert its constitutionality in court.”87 Mr. Holder sent separate notification of the Administration’s position to congressional leadership. Congress can decide whether to defend Section 3 of DOMA in the pending cases. It is unclear the process by which such a defense would occur. At a press briefing shortly after Mr. Holder published his statement on Section 3 of DOMA, White House Press Secretary Jay Carney said, [T]he United States government will still be a party to [the Pedersen and Windsor] cases in order to allow those cases to proceed so that the courts can make the final determination about its constitutionality, and also, so that other interested parties are able to take up the defense of the Defense of Marriage Act if they so wish—and in particular, Congress or members of Congress who want to proceed and defend the law in these cases. The administration will do everything it can to assist Congress if it so wishes to do that. We recognize and respect that there are other points of view and other opinions about this. It is also important to note that the enforcement of the Defense of Marriage Act continues—the 81 Ibid. Ibid. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid. 82 Congressional Research Service 17 Federal Employee Benefits and Same-Sex Partnerships President is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.88 Cost Estimates Office of Personnel Management As noted earlier in this report, OPM estimates that extending health insurance and survivor benefits to the same-sex domestic partners of current federal employees as well as annuitants would have cost $56 million in 2010. The Williams Institute The Williams Institute—an independent and non-partisan think tank at the University of California, Los Angeles School of Law that researches sexual orientation laws and public policy—released a study in September 2008, that estimated H.R. 2517 and S. 1102 would cost the federal government $41 million in its first year and $675.1 million over 10 years.89 The study estimated that 30,185 same-sex domestic partners of federal employees and their children would be eligible for benefits. Of the more than 30,000 people who would be eligible, the study estimated that 14,436 employees with same-sex partners would move from not being enrolled or single enrollment to family enrollment.90 Family enrollment would render the child of a same-sex partner eligible for certain benefits. According to the institute’s study, this extension of benefits could increase federal discretionary spending by $51.7 million in the first year and $666 million over 10 years.91 This cost estimate does not include USPS employees. About 28% of the civilian federal workforce is employed by the Postal Service, which pays for employee benefits using revenue earned. USPS pays a greater share of the health care premium for its employees than the rest of the federal government pays for non-postal federal civilian employees. In 2008, for example, the government’s share of a non-postal employee’s health care costs was $4,600, if that employee enrolled in family coverage. The federal government’s share for the same family coverage plan for a USPS employee was $5,244 in 2008. According to the institute, extending federal benefits to 88 The White House Office of the Press Secretary, The White House Office of the Press Secretary, “Press Briefing by Press Secretary Jay Carney, 2/23/2011,” press release, February 23, 2011, http://www.whitehouse.gov/the-press-office/ 2011/02/23/press-briefing-press-secretary-jay-carney-2232011. 89 Naomi G. Goldberg, Christopher Ramos, and M.V. Lee Badgett, The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners, The Williams Institute, Executive Summary, September 2008, https://www.policyarchive.org/bitstream/handle/10207/10871/S2521FiscalAnalysis_WilliamsInst.pdf?sequence=1. 90 This estimate, according to the congressional testimony from one of its authors, takes into account that some federal employees in same-sex partner relationships are sometimes the partner of another federal employee. Also, other federal employees may have a same-sex partner who chooses to enroll in a health care plan provided by their state, local government, or tribal employer, or a private employer. U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO, 2009), http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf. 91 The measures are estimated to increase federal tax revenue in the first year by $10.7 million and $118.4 million over ten years, thereby reducing the first-year costs for the extension to $41 million and ten-year costs to $675.1 million. Congressional Research Service 18 Federal Employee Benefits and Same-Sex Partnerships the same-sex partners of USPS employees could cost the Postal Service $259.2 million over 10 years. More specifically, the institute report estimated that extending federal healthcare benefits to the same-sex domestic partners of federal employees and their children could increase spending by $43.5 million in the first year and $575.7 million over 10 years.92 Extending survivor benefits to the same-sex domestic partners of federal employees was expected to save the federal government $108 million over 10 years.93 The extension of disability benefits to employees in same-sex partnerships was estimated to increase federal spending by $10.2 million over 10 years, and the costs associated with work-related travel and mandatory relocation were estimated to increase by $80.2 million over 10 years. Similar to Mr. Berry’s viewpoint, the institute report found that the extension of dental and vision insurance to the same-sex domestic partners of federal employees would not increase government outlays because federal employees are responsible for the total cost of the premiums for those benefits. Similarly, extending life insurance benefits is not expected to increase federal costs. The report stated that extending the Family and Medical Leave Act to include employees in samesex partnerships would not directly increase personnel costs of the federal government but “there may be other peripheral costs associated with an employee’s leave, such as accommodation of an employee’s absence either through increasing the workloads of other employees, hiring temporary workers, or reduced productivity.”94 M.V. Lee Badgett, a professor of economics at the University of Massachusetts Amherst who is also the research director of the institute, said in her testimony before the House Committee on Oversight and Government Reform that extending benefits to same-sex domestic partners may also reduce federal costs in employee turnover because gay or lesbian employees would be less likely to leave a federal position in favor of a job that did not offer such benefits.95 Table 1 below shows the institute’s projected costs if a variety of federal benefits were extended to federal employees involved in same-sex domestic partnerships. 92 Extending survivor benefits to same-sex partners of federal employees is anticipated to result in a short-term reduction in annuity payments prompted by the spousal reduction applied to pay for survivor benefits. 93 Ibid., 2. 94 Ibid, p. 8. 95 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO, 2009), http://republicans.oversight.house.gov/images/ stories/Hearings/pdfs/20090708Badgett.pdf. Congressional Research Service 19 Federal Employee Benefits and Same-Sex Partnerships Table 1. Estimated Costs to the Federal Government if Benefits Were Extended to Same-Sex Domestic Partners in millions of dollars Year 1 2 3 4 5 6 7 8 9 10 Total Cost (Over 10 Years) Retiree Health Benefits 0 3.9 8.1 12.8 18.1 24.2 30.7 37.9 45.5 53.9 235.1 Reduction in Annuity Payments to Retirees and Survivors 0 -2.2 -4.4 -6.7 -9.1 -11.8 -14.4 -17.1 -19.8 -22.6 -108.1 Total, Direct Spending 0 1.7 3.7 6.1 8.9 12.4 16.3 20.8 25.7 31.4 127.0 43.5 46.1 48.9 51.9 55.1 58.5 62.0 65.8 69.8 74.1 575.7 Dental & Vision Benefits 0 0 0 0 0 0 0 0 0 0 0 Family Medical Leave Provisions 0 0 0 0 0 0 0 0 0 0 0 Federal Group Life Insurance 0 0 0 0 0 0 0 0 0 0 0 Long Term Care 0 0 0 0 0 0 0 0 0 0 0 FECA Disability 0.9 0.9 1.0 1.0 1.0 1.0 1.1 1.1 1.1 1.1 10.2 * * * * * * * * * * .36 Travel, Transportation 7.3 7.4 7.6 7.8 7.9 8.1 8.3 8.5 8.6 8.8 80.2 Total, Discretionary Spending 51.7 54.5 57.5 60.7 64.1 67.6 71.4 75.4 79.6 84.1 666.5 16.9 17.9 19.0 20.2 21.4 22.7 24.1 25.6 27.2 28.8 223.9 Dental & Vision Benefits 0 0 0 0 0 0 0 0 0 0 0 Family Medical Leave Provisions 0 0 0 0 0 0 0 0 0 0 0 Federal Group Life Insurance 0 0 0 0 0 0 0 0 0 0 0 Long Term Care 0 0 0 0 0 0 0 0 0 0 0 FECA Disability 0.36 0.37 0.37 0.38 0.39 0.40 0.41 0.42 0.43 0.44 4.0 * * * * * * * * * * .14 Direct Spending Discretionary Spending Health Insurance FECA Death Postal Service Costs (Off-Budget) Health Insurance FECA Death CRS-20 Federal Employee Benefits and Same-Sex Partnerships Year 1 2 3 4 5 6 7 8 9 10 Total Cost (Over 10 Years) Travel, Transportation 2.8 2.9 3.0 3.0 3.1 3.2 3.2 3.3 3.4 3.4 31.2 Total, Postal Service 20.1 21.2 22.4 23.6 24.9 26.3 27.8 29.3 31.0 32.7 259.2 Tax Revenue from “Imputed Income” Taxation -10.7 -11.0 -11.2 -11.4 -11.7 -11.9 -12.2 -12.5 -12.8 -13.0 -118.4 Total, Tax Revenue -10.7 -11.0 -11.2 -11.4 -11.7 -11.9 -12.2 -12.5 -12.8 -13.0 -118.4 Total Federal Budget Cost 41.0 45.3 50.0 55.4 61.3 68.1 75.5 83.7 92.6 102.4 675.1 Tax Revenue Source: The Williams Institute, “The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners: Executive Summary,” September 2008, p. 13, http://www.law.ucla.edu/williamsinstitute/publications/S2521FiscalAnalysis_WilliamsInst.pdf. CRS-21 Federal Employee Benefits and Same-Sex Partnerships The Congressional Budget Office On December 17, 2009, CBO released its cost estimate for H.R. 2517, stating that enacting the legislation “would increase direct spending by $596 million through 2019” and discretionary spending would increase $302 million over the same period of time. 96 CBO estimated that the legislation would have no direct effect on federal revenues. The estimate assumed that if the bill were enacted, from 2011 to 2019, approximately 5,200 non-postal annuitants per year would switch from an individual insurance plan to a family plan, raising direct spending by $348 million over that time. 97 During that same time, CBO estimated that discretionary spending would increase by $266 million because 4,000 non-postal employees per year would switch from individual to family plans. Federal Employment Compensation Act benefits were estimated to increase direct spending by $35 million over the 2010-2019 period, as 1,000 employees per year were estimated to sign up for the benefit. CBO estimated that 1,500 employees per year through 2019 would sign up for survivor annuities in either the Federal Employees’ Retirement System or the Civil Service Retirement System. In addition, CBO estimated that roughly 2,000 annuitants would sign up for the survivor annuities. The result would be that the employees would receive smaller retirement annuities, “thereby lowering direct spending.”98 The reduction in direct spending, however, would be offset by payouts to the surviving partners of annuitants. In the short term, CBO estimated that the extension of survivor annuities will decrease direct spending by $27 million. Table 2 shows the CBO estimates. Table 2. CBO’s Estimated Changes in Federal Outlays if H.R. 2517 or S. 1102 Were Enacted Estimated Additional Employee Enrollment Cost in 2011 (first full year of enactment) Cost from 2010 to 2019 Federal Employees Health Benefit Program Non-Postal Employees (discretionary spending) 4,000 per year $17 million $266 milliona Non-Postal Annuitants (direct spending) 5,200 per year $18 million $348 milliona Federal Employment Compensation (direct spending) 1,000 per year $3 million $35 million Survivor Annuities (direct spending) 1,500 per year ($11 million) ($27 million) Travel and Relocation Costs (discretionary spending) N/A $1 million $6 million Source: U.S. Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, December 17, 2009, http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf. 96 Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, December 17, 2009, p. 1, http://www.cbo.gov/ftpdocs/108xx/doc10866/hr2517.pdf. 97 CBO also estimated that about 2,000 USPS employees would move from individual to family health benefits if H.R. 2517 were enacted. USPS spending is categorized as off-budget because the entity is largely self-funded through the sale of stamps and other postal items. The enactment of H.R. 2517 would increase off-budget costs by $242 million through 2019, according to the CBO estimate. Congressional Budget Office, H.R. 2517 Domestic Partnership Benefits and Obligations Act of 2009, p. 3. 98 Ibid., p. 4. Congressional Research Service 22 Federal Employee Benefits and Same-Sex Partnerships Notes: All per year estimates are for the years 2010 to 2019. This table does not include off-budget costs associated with the U.S. Postal Service, which uses revenue from the sale of postal stamps and other services to pay for its employee benefits. a. Costs for FEHBP were estimated from 2011 through 2019. Analysis The 112th Congress may address issues related to the extension of benefits to the partners of federal employees in same-sex relationships. The Obama Administration has pledged its support for extending such benefits, within existing laws. OPM has testified in support of previously pending legislation. At the same time, OPM reportedly decided not to extend benefits to the same-sex spouses of two federal employees in the judicial branch despite federal court orders to do so. The agency reportedly stated that extending such benefits would be a violation of existing federal law (DOMA).99 Although the Administration has stated it will not defend a section of DOMA in the Second Circuit, it has stated that it intends to continue enforcing the law. Congress may act to prohibit same-sex partners of federal employees from receiving federal benefits. Prohibiting the extension of certain federal benefits would reinforce current statutes, which state that same-sex partners do not qualify as spouses and, therefore, should not receive certain federal benefits. Such action could also save nearly $600 million over eight years.100 According to Dr. M.V. Lee Badgett, the research director of The Williams Institute, 20 states and the District of Columbia offer a variety of benefits to the same-sex partners of their employees.101 In testimony before the House Committee on Oversight and Government Reform, she said that “[m]ore than 250 cities, counties, and other local government entities cover domestic partners of other public employees” and “[i]n the private sector, almost two-thirds of the Fortune 1000, and 83% of Fortune 100 companies also provide these benefits.”102 If Congress acts not to extend federal benefits to the same-sex partners of employees, however, it may be more difficult to recruit and retain high-performing employees who are in or who may enter into same-sex relationships. Such employees may instead choose to work for state, local, or tribal governments or private companies that provide benefits to same-sex domestic partners. On the other hand, Congress may consider that competing for the most effective and efficient workforce requires the federal government to offer benefits similar to those available in other levels of government and the private sector.103 To compete with local and state governments as 99 Joe Davidson, “OPM Defies Order on Same-sex Benefits,” Washington Post, December 22, 2009, pp. http://www.washingtonpost.com/wp-dyn/content/article/2009/12/21/AR2009122103240.html. 100 The Williams Institute study, p. 1. 101 These states are Alaska, Arizona, California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin. U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO, 2009), http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf. 102 Ibid, p. 1. 103 As noted earlier in this report, in congressional testimony Ms. Badgett said more than 250 cities, counties, and other local governments provide same-sex domestic partners with benefits. In the private sector, almost two-thirds of the Fortune 1000, and 83% of Fortune 100 companies provide such benefits. U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Post Office, and the District of Columbia, (continued...) Congressional Research Service 23 Federal Employee Benefits and Same-Sex Partnerships well as private companies, Congress may decide to pass legislation similar to that introduced during the 111th Congress. As discussed earlier in this report, President Obama’s June 2, 2010, memorandum to the heads of government departments and agencies requires OPM to create and present to the President an annual report on agency progress toward the extension of certain benefits to same-sex domestic partners.104 Congress may choose to require OPM concurrently to send this report to the appropriate committees of jurisdiction in each chamber of Congress to assist in congressional oversight of implementation and extension of such benefits. Congress may also choose to require OPM to calculate the costs associated with the extension of the new benefits and include that information in the annual report. Congress may choose to defend Section 3 of DOMA in court. It is unclear the process by which such a defense would occur. The Obama Administration’s decision not to defend Section 3 of DOMA may create inequities among federal workers with same-sex partners. Federal employees who live within the jurisdiction of the Second Circuit (which includes Connecticut, New York, and Vermont) may be entitled to receive benefits for their same-sex partners.105 Federal employees outside of this jurisdiction, however, may not be given access to identical benefits. This inequity could lead to legal challenges from employees seeking equal access to benefits for equal work. Specific Issues Application to Every State If Congress acts to extend these benefits, it may additionally consider whether the legislation’s existing language would prohibit same-sex couples who are legally married, according to state law, from receiving the benefits.106 Both the House and Senate legislation in the 111th Congress, as introduced, defined the term “domestic partner” as “an adult unmarried person living with another adult unmarried person of the same sex in a committed, intimate relationship.” Such language could prohibit married same-sex couples from being included in the extension of federal benefits provided for in the bills. The bill reported from the House Committee on Oversight and Government Reform, however, modified the definition of “domestic partner” to “an individual (...continued) Domestic Partnership Benefits and Obligations Act of 2009, hearing on H.R. 2517, 111th Cong., 1st sess., July 8, 2009 (Washington: GPO, 2009), http://republicans.oversight.house.gov/images/stories/Hearings/pdfs/20090708Badgett.pdf. 104 The White House: Office of the Press Secretary, “Statement by the President on the Presidential Memorandum on Federal Benefits and Non-Discrimination, and Support of the Lieberman-Baldwin Benefits Legislation,” press release, June 17, 2009, p. 3. 105 Within Massachusetts, absent any additional judicially activity, the partners of federal employees in same-sex marriages may be entitled to receive certain federal benefits. On July 8, 2010, a U.S. District Court in Massachusetts found Section 3 of DOMA unconstitutional in two companion cases (Gill v. Office of Personnel Management, 699 F.Supp. 2d 374 (D. Mass. 2010) and Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010)). 106 Applying a law to only certain states, however, may be unconstitutional, as it could be considered an unequal application of the law. Congressional Research Service 24 Federal Employee Benefits and Same-Sex Partnerships who is in a domestic partnership.”107 The term domestic partnership, according to the reported version of the bill, is defined as the nine qualifications outlined earlier in this report. Among those qualifications were that both individuals in the relationship were of the same sex, and that both individuals were at least 18 years old and that the partners share responsibility for one another’s common welfare and financial obligations. The Senate Homeland Security and Governmental Affairs Committee’s reported version of the bill defines “domestic partner” as “either of the individuals in a domestic partnership.”108 “Domestic partnership” is then defined as “a relationship between 2 individuals of the same sex, at least 1 of whom is an employee” and who qualifies under the requirements delineated in the legislation.109 Congress may act to use the definition of domestic partner as it was introduced in each chamber’s bill, but restrict the application only to states where same-sex marriage is not recognized. For example, Congress could require same-sex partners residing in states that allow same-sex marriage to be married in order to qualify for federal benefits. As noted earlier, same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, the District of Columbia, and Vermont.110 Unmarried same-sex partners who reside in these states have the option to get married. By requiring partners in these states to get married prior to being eligible for benefits, Congress could then rely on state laws to determine the creation and dissolution of the union— adopting a legal construct similar to the one currently used for opposite-sex marriages. Congress may determine that providing same-sex partner benefits to unmarried same-sex partners in these states is unnecessary because the couple could get married and, therefore, qualify for benefits as married spouses. The federal government currently does not provide federal benefits to the opposite-sex partners of federal employees who are not married. Extending Benefits Beyond Same-Sex Partners Some federal employees may not be married to their domestic partners, whether that partner is of the same gender or a different gender. As noted above, the domestic partners of these employees are not eligible to receive many federal benefits because they do not qualify as a “spouse,” pursuant to federal law. The House Oversight and Government Reform Committee’s report to accompany H.R. 2517 said: federal employees living with opposite sex domestic partners have the option of marriage, which would entitle the employee and his or her spouse to the receipt of these benefits. Same sex partners may only get married in a handful of states. Even in these cases, the federal government does not recognize the marriage because of the Defense of Marriage Act (DOMA). H.R. 2517 does not affect DOMA. Therefore, under current OPM guidelines, same sex partners, even where married, are ineligible to receive these benefits as spousal benefits.111 107 H.Rept. 111-400, part 1, p. 3. 108 Draft version of bill provided to the author by the Senate Committee on Homeland Security and Governmental Affairs. 109 Ibid. 110 On December 15, 2009, Washington, D.C.’s City Council passed legislation that would legalize gay marriage. Congress had 30 legislative days to veto the legislation. On March 9, 2010, same-sex couples were legally permitted to get married. 111 H.Rept. 111-400, Part 1, p. 26 (footnote 6). Congressional Research Service 25 Federal Employee Benefits and Same-Sex Partnerships Congress may choose to extend benefits only to those in same-sex domestic partnerships. This limitation would control the costs associated with extending partner benefits. Congress, however, may also consider extending benefits to the domestic partner of any federal employee, regardless of that partner’s gender. Such action may attract additional highly qualified candidates to public service. Such action also would permit an employee to qualify for federal benefits without having to identify the gender of his or her domestic-partner. Some employees may be hesitant to identify the gender of their domestic partner, even if the affidavit is confidential. The extension of benefits to such partners regardless of gender, however, could increase the costs of the FEHBP. OPM Technical Amendments In his testimony on July 8, 2009, before the House Committee on Oversight and Government Reform, OPM Director Berry endorsed H.R. 2517, but said there were several technical changes that could be made to the bills prior to their enactment. These included reconsidering whether OPM should be tasked with maintaining and ratifying employee’s affidavits, ensuring that samesex domestic partners would receive the same benefits and have the same requirements placed on them as a spouse of the opposite sex, and clarifying the tax status of these newly extended benefits. 112 OPM as Clearinghouse H.R. 2517 and S. 1102 would have required an employee seeking to enroll their same-sex partner in a federal benefit program to first “file an affidavit of eligibility for benefits and obligations with the Office of Personnel Management.” Mr. Berry, in his testimony, said that OPM officials “do not think it is practicable for OPM to play this role.” He explained: Each Federal agency carries out human resources management functions, including benefits enrollment and payroll deductions, for its own employees. Requiring affidavits to be filed with OPM would be at odds with current provisions of law and regulation governing Federal employee benefits, which recognize that OPM is not a central clearinghouse for all Federal employees. 113 Congress may choose to enact legislation that would make OPM the central clearinghouse for the affidavits required to qualify for same-sex partner benefits. Designating OPM as the only agency with the authority to maintain those records could increase employee privacy, making it less likely that federal employees’ private information is made public. Giving each individual agency the authority to maintain the affidavits could make the documents more susceptible to information leaks, as each agency could have a different system of recordkeeping. In addition, giving individual agencies the authority to file the affidavits makes it more likely that federal employees applying for the benefits may know the person with whom they must file the record, making the process less anonymous. Some federal employees may be less likely to enroll in the program if they must identify themselves as gay or lesbian in front of a co-worker. On the other hand, Congress may determine that OPM’s mission does not include this type of governmentwide recordkeeping role related to federal benefits. Giving individual agencies the authority to 112 113 Ibid., p. 3. Ibid. Congressional Research Service 26 Federal Employee Benefits and Same-Sex Partnerships certify employee affidavits would not task OPM with a responsibility it may not have the capacity to undertake. Making Benefits and Obligations Identical OPM Director Berry also expressed concerns that the H.R. 2517 and S. 1102 did not include prescriptive language that would ensure the same treatment of a former spouse as a former domestic partner. According to Mr. Berry: The bill provides that, if a domestic partnership dissolves except by death, the former domestic partner will have the same rights and obligations as a former spouse. By law, a former spouse is eligible to enroll in the Federal Employees Health Benefits (FEHB) Program if he or she meets certain eligibility criteria. The former spouse must be entitled to a portion of an annuity and must not have remarried before the age of 55. Under H.R. 2517, there is no language allowing [OPM] to enforce a similar obligation for the former domestic partner under the same circumstances. Entitlements and obligations for former spouses under the involuntary division of property are attributed to court orders with respect to divorce, annulment, and legal separation. In the absence of domestic relations law for domestic partnerships in many States, we believe that we would need more prescriptive language in the bill to avoid potential legal hurdles that could occur.114 Congress may act to clarify whether eligibility criteria identical to that for former opposite-sex spouses of federal workers can be extended to the former same-sex domestic partners of federal workers. It is unclear how the federal government would enforce a law that prohibited a former same-sex partner of a federal employee from receiving federal benefits if they entered into a new domestic partnership before the age of 55.115 Because same-sex domestic partners in many states cannot get married or remarried, the federal government may have to consider different benefit eligibility criteria for the same-sex former partners of federal employees. Tax Status of Benefits Currently, an opposite-sex spouse who receives federal benefits does not have to pay taxes on his or her benefits. Neither H.R. 2517 nor S. 1102 stated whether the same-sex domestic partners of federal employees who chose various benefits would have had to pay taxes on those benefits. Congress has the authority to grant identical tax status to same-sex partners as is provided to opposite-sex spouses. 114 Ibid. As noted earlier in this report, defining the “dissolution” of a same-sex relationship presents a variety of difficulties, including determining when a partnership has ended. The reported versions of the H.R. 2517 and S. 1102 include a change to statutory language that seeks to ensure that former same-sex domestic partners would be given the same rights to a federal employee’s annuity as a former spouse. 115 Congressional Research Service 27 Federal Employee Benefits and Same-Sex Partnerships Author Contact Information Wendy R. Ginsberg Analyst in Government Organization and Management wginsberg@crs.loc.gov, 7-3933 Acknowledgments Alison Smith, legislative attorney, contributed to this report. Congressional Research Service 28