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52–628 PDF 2009

H.R. 2517, DOMESTIC PARTNERSHIP BENEFITS

AND OBLIGATIONS ACT OF 2009

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

FIRST SESSION

ON

H.R. 2517

TO PROVIDE CERTAIN BENEFITS TO DOMESTIC PARTNERS OF FEDERAL

EMPLOYEES

JULY 8, 2009

Serial No. 111–15

Printed for the use of the Committee on Oversight and Government Reform

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Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

CHRIS VAN HOLLEN, Maryland

HENRY CUELLAR, Texas

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

PETER WELCH, Vermont

BILL FOSTER, Illinois

JACKIE SPEIER, California

STEVE DRIEHAUS, Ohio

——— ———

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

——— ———

RON STROMAN, Staff Director

MICHAEL MCCARTHY, Deputy Staff Director

CARLA HULTBERG, Chief Clerk

LARRY BRADY, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE, AND THE DISTRICT OF

COLUMBIA

STEPHEN F. LYNCH, Massachusetts, Chairman

ELEANOR HOLMES NORTON, District of

Columbia

DANNY K. DAVIS, Illinois

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

WM. LACY CLAY, Missouri

GERALD E. CONNOLLY, Virginia

JASON CHAFFETZ, Utah

JOHN M. MCHUGH, New York

MARK E. SOUDER, Indiana

BRIAN P. BILBRAY, California

WILLIAM MILES, Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 8, 2009 ................................................................................. 1

Text of H.R. 2517 ..................................................................................................... 35

Statement of:

Badgett, M.V. Lee, research director, Williams Institute on Sexual Orientation Law and Public Policy, UCLA School of Law; Gregory A.

Franklin, assistant executive officer, Health Benefit Services, California

Public Employees’ Retirement System; and Carolyn E. Wright, vice

president, Corporate Human Resources, American Airlines ..................... 74

Badgett, M.V. Lee ...................................................................................... 74

Franklin, Gregory A. ................................................................................. 81

Wright, Carolyn E. .................................................................................... 88

Baldwin, Hon. Tammy, a Representative in Congress from the State

of Wisconsin ................................................................................................... 45

Berry, John, Director, U.S. Office of Personnel Management ...................... 51

Guest, Ambassador (ret.) Michael, former career Foreign Service Officer;

Lorilyn Holmes, current Federal employee, reverend, Metropolitan

Community Churches; and Frank Page, pastor, First Baptist Church

of Taylor, SC, president, Southern Baptist Convention 2006 ................... 105

Guest, Ambassador (ret.) Michael ............................................................ 105

Holmes, Lorilyn ......................................................................................... 112

Page, Frank ............................................................................................... 121

Letters, statements, etc., submitted for the record by:

Badgett, M.V. Lee, research director, Williams Institute on Sexual Orientation Law and Public Policy, UCLA School of Law, prepared statement of ........................................................................................................... 76

Baldwin, Hon. Tammy, a Representative in Congress from the State

of Wisconsin, prepared statement of ........................................................... 48

Berry, John, Director, U.S. Office of Personnel Management, prepared

statement of ................................................................................................... 53

Connolly, Hon. Gerald E., a Representative in Congress from the State

of Virginia, prepared statement of .............................................................. 63

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 127

Franklin, Gregory A., assistant executive officer, Health Benefit Services,

California Public Employees’ Retirement System, prepared statement

of ..................................................................................................................... 83

Guest, Ambassador (ret.) Michael, former career Foreign Service Officer,

prepared statement of ................................................................................... 108

Holmes, Lorilyn, current Federal employee, reverend, Metropolitan Community Churches, prepared statement of ................................................... 114

Lynch, Hon. Stephen F., a Representative in Congress from the State

of Massachusetts:

Followup questions and responses ........................................................... 58

Various prepared statements ................................................................... 4

Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District

of Columbia, prepared statement of ............................................................ 2

Wright, Carolyn E., vice president, Corporate Human Resources, American Airlines:

American Airlines article .......................................................................... 90

Prepared statement of ............................................................................... 95

(1)

H.R. 2517, DOMESTIC PARTNERSHIP BENEFITS

AND OBLIGATIONS ACT OF 2009

WEDNESDAY, JULY 8, 2009

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 3:45 p.m., in room

2154, Rayburn House Office Building, Hon. Stephen F. Lynch

(chairman of the subcommittee) presiding.

Present: Representatives Lynch, Norton, Cummings, Connolly,

and Chaffetz.

Staff present: William Miles, staff director; Aisha Elkheshin,

clerk; Jill Crissman, professional staff member; Margaret McDavid

and Jill Henderson, detailees; Daniel Zeidman and Christina

Severin, interns; Dan Blankenburg, minority director of outreach

and senior advisor; Adam Fromm, minority chief clerk and Member

liaison; Howard Denis, minority senior counsel; Chapin Fay, minority counsel; and Alex Cooper, minority professional staff member.

Mr. LYNCH. Good afternoon. The subcommittee hearing will

begin. I apologize to all of those in attendance. As you know, we’ve

been busy on the floor, but we will get right down to business now.

I want to first of all thank Ms. Norton for her attendance here

while we were on the floor. Unfortunately, she has to now chair her

own subcommittee chair panel, and she has asked to place her

statement in the record, which we will do.

[The prepared statement of Hon. Eleanor Holmes Norton follows:]

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Mr. LYNCH. The Subcommittee on the Federal Workforce, Postal

Service, and the District of Columbia will now come to order.

I welcome our ranking member, Mr. Chaffetz, and members of

the subcommittee, the hearing witnesses, and all of those in attendance.

Today’s hearing will examine H.R. 2517, the Domestic Partnership Benefits and Obligations Act of 2009. H.R. 2517 is intended

to ensure equal treatment to lesbian and gay Federal civilian employees by providing that same-sex partners be entitled to the same

benefits as a married Federal employee and his or her spouse. The

purpose of the hearing is to examine the merits of this legislation

and to discuss its potential implementation and costs.

The Chair, the ranking member and the subcommittee members

will each have 5 minutes to make opening statements, and all

Members will have 5 legislative days to submit statements for the

record.

At this time, I would like to ask unanimous consent that the testimonies from the National Treasury Employees Union, the American Federation of Government Employees, the International Federation of Professional and Technical Engineers, Human Rights

Campaign, the Alternative to Marriage Project, and the Parents,

Families and Friends of Lesbians and Gays be submitted for the

record.

Hearing no objection, it is so ordered.

[The information referred to follows:]

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Mr. LYNCH. Good afternoon, ladies and gentlemen. Today, the

subcommittee convenes to discuss H.R. 2517, which is a measure

introduced by our own colleague, Representative Tammy Baldwin

of Wisconsin, designed to provide equal treatment to lesbian and

gay Federal and civilian employees by providing that same-sex domestic partners be entitled to the same benefits available to a married Federal employee and his or her spouse.

While today’s proceeding has been framed as a legislative hearing with the purpose of discussing the merits, composition and impact of H.R. 2517, the real issues we are confronting today deal

with the principles of equality, fairness, and inclusion in the workplace, principles that should be commonplace for the Federal Government as an employer both in theory and in fact.

Yet today, neither exists as tens of thousands of Federal workers

and their same-sex partners continue to be denied access to employee benefits such as health insurance, overtime, and savings,

which are customarily offered to employees with opposite-sex

spouses. In many ways, it’s baffling that this inequality exists on

the Federal level despite the significant expansion in the availability of employment-related benefits and equal treatment for domestic partners among other public and private sector employers.

We know that nearly 20 States and over 250 localities expand

benefits to domestic partners of other public employees, and in the

private sector, we have seen that the number of Fortune 500 companies that extend benefits to employees with same-sex partners

has grown from 46 companies, about 9 percent, in 1997 to 286 companies, 57 percent, in 2009.

Aside from the basic concepts of fairness and nondiscrjmination,

the need to consider providing domestic partners’ benefits to Federal employees should also be evaluated in light of the potential

positive impacts that such policies can have on the Federal Government’s recruitment and retention capabilities, its employee productivity and morale and, in some cases, the bottom line, as uninsured

domestic partners must often rely on other government-sponsored

health care programs and plans.

I would again like to thank the gentlelady from Wisconsin, Congresswoman Tammy Baldwin, and the 100-plus cosponsors of H.R.

2517 for their work, their diligence, and their commitment to correcting a longstanding injustice which has resulted in some Federal

workers not receiving equal pay for equal work.

I would like to point out recent action taken by the Obama administration in providing same-sex partners of Federal employees

with certain benefits already available to spouses of heterosexual

employees. Although these fall short of the full range of benefits

available to married couples, the President’s actions are nevertheless a step in the right direction, and they must be complemented

by congressional legislative action, which is what brings us to today’s consideration of H.R. 2517, the Domestic Partnership Benefits Act of 2009.

[The text of H.R. 2517 follows:]

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Mr. LYNCH. I look forward to a healthy and robust discussion on

all aspects of the measure before us.

I would like to thank today’s witnesses for taking the time to be

with us today as we explore this important issue.

I would now like to call upon our witnesses.

It is the committee’s policy that all witnesses are to be sworn.

I’ll ask you to please rise.

[Witnesses sworn.]

Mr. LYNCH. The record will show that the witnesses have answered in the affirmative, and I will now ask our ranking member,

Mr. Chaffetz, the gentleman from Utah, for a 5-minute opening

statement.

Mr. CHAFFETZ. Thank you, Mr. Chairman. I do appreciate it, and

I appreciate the work that you’ve put into this effort, and I truly

do look forward to listening and learning and understanding your

perspective.

I hope this can also be a candid dialog about some of the respect

and traditions of this country.

With this, I again want to thank the chairman for holding this

hearing today in discussing H.R. 2517, the Domestic Partnership

Benefits and Obligations Act of 2009.

I would also like to thank Reverend Henry Gaston, Patrick Walker, Donald Sadler and other members of the Ministers’ Conference

of D.C. and vicinity for their presence and their participation in

this ongoing discussion. I look forward to hearing from the various

witnesses that we will today.

I, like most people in this country, am in favor of preserving traditional marriage. To me, marriage carries a direct religious significance in addition to other connotations. But perhaps most significant to H.R. 2517 is that the term ‘‘marriage’’ is also a legal matter, and a court of law is involved in the marriage process. What

we cannot do with this legislation is create laws which are similar

for different people.

While we are told that because opposite-sex couples have the option to marry, they’re provided with similar benefits. What I’m concerned about is trying to draw that distinction into having an unintended consequence of actually offering and creating a separate

class or category of people that then would obtain or be given

rights above and beyond other people who don’t choose to participate in those lifestyle choices.

Whether or not a heterosexual couple is dating and living together can meet all other standards except for the portion of regarding the couple of same-sex status is of concern to me. If they

can, yet are not afforded the same rights, this bill is directly discriminatory against heterosexual couples, and that, to me, is one

of the unintended consequences that I have a serious concern and

question, and I’d appreciate if the witnesses would address.

Marriage by another name is of concern to me and I think the

majority of Americans. At the same time, I want to be respectful

of individuals and their rights to choose. And I would just like to

relay a very brief story that’s very personal to me in my Great

Aunt Louise. She has since passed away.

She was happily married for a long time. And yet when she

passed away, she ended up living with another women. It was not

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necessarily an intimate relationship, it was not necessarily a relationship that was other than based on the fact that she had an economic need, she had a security need, there was a friendship need,

and yet I worry that maybe given the definitions of where this legislation is trying to go, that if she had been a Federal employee,

that there would be other people that get benefits above and beyond where she had been.

And I also worry that heterosexual couples who have made a decision not to get married would be discriminated against along the

way.

I also have concerns about fraud and abuse, the ability to enforce

these types of things, the costs that will be associated with them.

I think these are all valid points. At the same time, I think we can

approach this with a moral attitude that says we want to do what’s

right for people and for individuals, but also have a respect for the

traditions of this country that marriage, defined as a marriage between one man and one woman, is something that this country

feels strongly about. And I do as well.

So with that, I look forward to hearing, not so much speaking.

I thank the chairman and look forward to hearing your testimony,

and I yield back the balance of my time.

Mr. LYNCH. Now I would like to offer 5 minutes for an opening

statement to the Honorable Tammy Baldwin, the lead sponsor of

this measure.

STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF WISCONSIN

Ms. BALDWIN. Thank you, Mr. Chairman, and thank you, Ranking Member Chaffetz and members of the subcommittee for the opportunity to testify today at what is a very historic hearing.

I also want to thank OPM Director John Berry for taking the

time to testify in support of this legislation and wish to thank Ambassador Guest and all of our distinguished panelists today for

their leadership.

As my colleagues on this committee know, the Federal Government employs more than 1.8 million civilian employees, making it

the Nation’s largest employer. Historically, the Federal Government has been a leader in offering important benefits to its employees. But today, we are lagging behind, and this is particularly true

regarding the extension of benefits to employees with same-sex

partners.

As it stands, some Federal employees do not receive equal pay

and benefits for equal contributions. And the government is not

keeping pace with leading private sector employers in recruiting

and retaining top talent. Indeed, a large number of America’s

major corporations, as well as State and local governments and

educational institutions, have extended employee benefit programs

to cover their employees’ domestic partners.

These employers include top American corporations such as GE,

Chevron, Boeing, Texas Instruments, Lockheed Martin, and American Airlines, whom you will hear from later this afternoon.

Under the Domestic Partnership Benefits and Obligation Act, a

Federal employee and his or her same-sex domestic partner would

be eligible to participate in Federal retirement benefits, life insurVerDate 11-MAY-2000 15:03 Oct 21, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 U:\DOCS\52628.TXT KATIE PsN: KATIE
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ance, health benefits, Workers Compensation, and family and medical leave benefits to the same extent as married employees and

their spouses.

These employees and their domestic partners would likewise be

subject and would assume the same obligations as applied to married employees and their spouses, such as antinepotism rules and

financial disclosure requirements.

I want to make very clear that this bill contains strong antifraud

provisions, requiring employees to file an affidavit of eligibility in

order to extend benefits to their domestic partners. And this is significant, especially considering that we do not require married employees to show documentary evidence of their marriages when

claiming spousal benefits.

The penalties for fraudulently claiming a domestic partnership

would be the same as penalties for fraudulent claim of marriage.

For example, intentional false statements on a Federal Employees

Health Benefits form is punishable by a fine of up to $10,000 and

imprisonment up to 5 years.

Mr. Chairman, I appear before you today both as the lead author

of this legislation, but also as a lesbian Federal employee who has

been in a committed relationship with my partner, Lauren, for over

13 years. Over the years, Lauren and I have examined the differences between my benefits and my ability to provide for her

compared to the benefits enjoyed by my straight, married colleagues in Congress.

Some quick number crunching would demonstrate that the difference between my health benefits and yours just with regard to

that benefit alone over the course of my 10 years in Congress is

measured in five figures. This is a significant inequality, and heaven forbid anything would happen to me, but Lauren would not be

eligible to receive the survivor annuity from my pension nor health

insurance survivor benefits.

Unlike the spouses of my colleagues, Lauren is also not currently

subject to any of the obligations related to my Federal service. I

find this also disturbing.

All Members of Congress file annual financial disclosures. Married Members must file important information about their spouse’s

income, investments, debts, gifts received, etc. Surely, the public

interest requires that these obligations also apply to partners of

gay and lesbian office holders.

Last month, as you mentioned in your opening statement, Mr.

Chairman, President Obama signed a Presidential Memorandum

on Federal Benefits and Nondiscrimination which directs the Office

of Personnel Management and the State Department to extend certain benefits to the same-sex partners of Federal employees within

the confines of existing Federal law. Although the memorandum is

an important step in providing same-sex partners of Federal employees with benefits already available to spouses of heterosexual

employees, it falls short of providing the full range of benefits.

President Obama recognized and acknowledged that fact when

he signed the memorandum calling it just a start. He went on to

say that, as Americans, we are all affected when our promises of

equality go unfulfilled. President Obama recognized that full extenVerDate 11-MAY-2000 15:03 Oct 21, 2009 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 U:\DOCS\52628.TXT KATIE PsN: KATIE
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sion of benefits will require an act of Congress and proclaimed his

strong support for the legislation that you are reviewing today.

Gentlemen, thank you again for this opportunity to review the

bill and to testify before the committee.

Mr. LYNCH. Thank you.

[The prepared statement of Hon. Tammy Baldwin follows:]

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Mr. LYNCH. Next, I’d like to introduce Mr. John Berry, who’s the

Director of the U.S. Office of Personnel Management, which manages the Federal Government’s Civil Service employees. Prior to

Mr. Berry’s appointment, he was the Director of the National Fish

and Wildlife Foundation and the Director of the Smithsonian Zoological Park.

Mr. Berry, you’re recognized for 5 minutes.

STATEMENT OF JOHN BERRY, DIRECTOR, U.S. OFFICE OF

PERSONNEL MANAGEMENT

Mr. BERRY. Thank you, Mr. Chairman. It’s an honor to be back

with you today. And, Congresswoman Baldwin, thank you for your

leadership on this issue.

It is an honor to be here to represent on behalf of the President

and his administration our strong support for H.R. 2517. This critical legislation will provide health, life and survivor benefits to

same-sex domestic partners of Federal employees. I applaud Congresswoman Baldwin and the many cosponsors of H.R. 2517 for introducing this bill and you, Mr. Chairman, and the Members for

hosting this hearing today.

Both the White House and the Office of Personnel Management

wholeheartedly endorse the passage of this legislation. In my written testimony for the record, Mr. Chairman, I’ve also mentioned

some technical fixes that we’re seeking, and I will make all of my

staff available to you and the committee staff to work with you to

provide any support that may be of assistance in addressing those

corrections.

At my confirmation hearing, Mr. Chairman, I said two of my primary goals as the Director of OPM would be, first, to make the

Federal Government the country’s model employer, and the second

was to attract the best and the brightest Americans to Federal

service. The passage of H.R. 2517 is essential to accomplishing both

of these goals.

Under current law, the Federal Government cannot offer basic

benefits like health insurance, life insurance, dental or vision insurance to domestic partners of our gay and lesbian Federal employees. This policy 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. In this case, however, we have fallen behind

the private sector and 19 States, including Alaska and Arizona. Almost 60 percent of the Fortune 500 companies and 83 percent of

the Fortune 100 companies already offer this benefit to their samesex domestic partners.

These companies include, as Congresswoman Baldwin mentioned, American Airlines, who is here today—and I commend their

leadership in that regard—on the next panel, but also companies

that you might not expect: Chevron, Food Lion, Archer Daniels

Midland, Lockheed Martin, many, many others.

The Federal Government simply does not effectively compete

with these companies for every talented person; we fail to offer

comparable job benefits to our employees. And, in fact, Mr. Chairman, if I could just add, many of these companies are in direct

competition with us. We spend quite a bit of money doing security

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clearances on employees, and after they have that clearance, that

clearance goes with the employee, not with the position. And so, essentially, if an employee can be recruited away, these are the kinds

of tools where we can invest a lot of money, and then that employee walks out the door to a Lockheed Martin and others who

need employees with security clearances. We ought not allow that

uncompetitive edge.

The President, as Congresswoman Baldwin has already mentioned, took an important first step toward addressing these shortfalls when he signed the memorandum last month directing all

Federal agencies to extend benefits to same-sex domestic partners

of Federal employees to the extent now permitted by law. But as

the President noted when he issued this, this legislation is needed

to offer gay and lesbian Federal workers true equality and benefits

and ensure fairness in the workplace.

I’d also note that the cost of extending these benefits to samesex partners is negligible. Additional premiums for providing life,

dental and vision insurance to same-sex domestic partners will be

borne entirely by the gay and lesbian employees who enroll their

partners in those benefit plans. Adding domestic partner health insurance and survivor benefits for both Federal workers and retirees

would cost approximately $56 million in the year 2010. This marginal increase equates to about two-tenths of 1 percent of the entire

cost to the government of our Federal employees health insurance

program.

Simply put, extending benefits to same-sex partners is a good,

practical, bottom-line business decision, and it allows the Federal

Government to retain our competitive edge in the 21st century.

This legislation is a valuable business opportunity for the Federal

Government to enhance our recruitment and our retention efforts.

And just as important, this bill shows that we recognize the value

of every American and their families and their relationships and

are committed to the ideal of equal treatment under the law, as our

Founders envisioned.

Mr. Chairman, thank you for this opportunity, and I look forward to answering any questions the committee might have.

[The prepared statement of Mr. Berry follows:]

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Mr. LYNCH. Thank you. Great to have you up here again before

our committee. You’re a frequent witness here, and again we appreciate you, especially under today’s circumstances.

I’m going to allow myself 5 minutes for a first round of questioning, and the way Congress works, as you both know very well, is

that we usually have to be in five different places at the same time.

So as Members come in and leave, I’ll afford them an ample and

full opportunity to ask questions at this hearing.

And because we have so much going on, I’m going to give the

other members of the panel an opportunity to submit questions to

you both in writing, and I’ll say, in 5 days we’d like to have the

responses to those questions if they’re offered.

[The information referred to follows:]

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Mr. LYNCH. Ms. Baldwin, currently there are three States that

recognize same sex marriage. That’s Massachusetts, Connecticut,

and Iowa. Another three States, Vermont, Maine, and New Hampshire, will begin to recognize same-sex marriages in the next 6

months, based on legislation that has recently passed. And while

the process in California is still somewhat in flux; marriages performed there between June 16, 2008, and November 4, 2008, are

currently recognized by that State.

There are, of course, Federal employees in each of those States,

and some of them may have had same-sex spouses. However, the

Federal Government cannot recognize these marriages because of

DOMA, the Defense of Marriage Act, and these employees, therefore, are not eligible for the benefits provided to Federal employees

with opposite-sex spouses.

My question is, how are those folks going to be affected by your

legislation? Is H.R. 2517 intended to cover those employees as well?

Ms. BALDWIN. The way this would work, the Federal employee

who is in a same-sex partnership, whether they are married, in a

marriage recognized at their State level or not, would have to file

an affidavit of eligibility relating to their domestic partnership in

order to receive the benefits that are being proposed in the bill before you. In terms of having complete Federal recognition of the

marriages in those States, that would require a separate act of

Congress, one that I support strongly, which would be repeal of

title 3 of the Defense of Marriage Act, legislation that I expect to

be offered by colleagues later in this session.

But the way this legislation would work in practice recognizes

the fact we have Federal employees around the world, in every

State of the Union, and that the States will go at different paces

in terms of recognizing marriages. And so it made much more

sense to create this mechanism to provide the employment fringe

benefits, and that’s what this bill is limited to.

I would note in addition to your iteration of States that have enacted recognition of marriage, two additional jurisdictions, New

York State and the District of Columbia, have approved, either by

executive order or by act of the Council, to recognize same-sex marriages performed in other jurisdictions. So they sort of add to the

number of jurisdictions that at the State or local level will recognize marriage.

Mr. LYNCH. Thank you. And you’re right; I think the action here

in D.C. will come before the committee in some form. I know that

the City Council has approved that measure as well.

Director Berry, in his June 17th memorandum, President Obama

directed you and the Secretary of State to begin the process of extending some Federal benefits to qualified same-sex domestic partners of Federal employees. Can you give us an update on how that

is going, even though the limited portion has gone forward? Do you

see any problems in this? How is it proceeding?

Mr. BERRY. No, Mr. Chairman. I think that’s going along well.

We are well on schedule to stay within the 90 days that the President has established for us to issue and to come out with any regulations that would be required.

We are going to be issuing guidance to the Federal agencies to

assist them. OPM and State have done a very thorough review of

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our processes and code involved, but we did not have the opportunity or the time to do that.

For example, the General Services Administration is the agency

charged with relocation benefits, so that a Federal employee’s

move, how that is handled, is through the General Services Administration. So, for example, we’re asking each agency to do a thorough review of their law, and that’s what the President has asked.

Then we’ll be collecting that information and collating it and getting back to the President within 90 days.

We just had the Chief Human Capital Officers monthly meeting

yesterday, and that was on our agenda, and so we discussed that

in full. Everybody is going through and going forward with their

process. So I think we’re right on schedule, Mr. Chairman.

Mr. LYNCH. Thank you. Let me followup then.

Your testimony earlier mentioned the fact that the bill would exclude annuitants with same-sex partners from electing benefit coverage. Is OPM’s position that these individuals should be covered

by the bill or not?

Mr. BERRY. Yes, sir, that they should be, and in fact, the dollar

estimate that I gave you actually presumes you would make the

corrective change to include annuitants.

Mr. LYNCH. Explain that. There is a possible funding offset here,

right?

Mr. BERRY. Well, in the short term, there is a savings to the government because Federal employees who are retiring or have recently retired would take a lower payment in exchange for having

the survivor benefit for their annuitant, for their partner, domestic

partner, just as it is with the spouse now.

So, short term, there is a savings. In the long term, there would

be a slight increase, but that is factored into the number that I

gave you in my testimony, the $56 million.

And if I could just check—that is correct. OK.

Mr. LYNCH. So what you’re saying is that they don’t have the option right now to reduce, to seek the lower——

Mr. BERRY. No, sir.

Mr. LYNCH. Like myself, if you want to include your spouse, you

take a lower benefit, and right now, for gay and lesbian employees

of the Federal Government, they’re all maxing out right now.

They’re all taking the highest option because they’re forced to do

that?

Mr. BERRY. Absolutely.

Mr. LYNCH. And if they take the lower amount, then it will cause

a savings for the government.

In his memorandum, President Obama reaffirmed the civil service merit system principle that makes it unlawful to discriminate

against Federal employees on the basis of factors unrelated to job

performance, including sexual orientation or gender identity, and

President Obama directed you to issue guidance to Federal Agencies requiring compliance with this principle.

How has that proceeded?

Mr. BERRY. Mr. Chairman, we’re again right on schedule with

that. Our counsel’s office is working on preparing that, and we will

meet the 90-day standard that the President has established.

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My hope is, we actually have it done in less than 90 days, but

we will definitely be within the 90-day period the President has set

up.

Mr. LYNCH. Now, I do know that there was a situation over at

the Office of Special Counsel, and I want to ask you about that.

As you know, the U.S. Office of Special Counsel is responsible for

protecting Federal employees from discrimination based on sexual

orientation and for enforcing the cornerstone of the merit system.

However, the recently departed Special Counsel, who is still

being investigated by the OPM IG, the Office of Personnel Management Inspector General, refused to do so because of personal ideological beliefs. Unfortunately, the President has been slow to nominate a new Special Counsel, which means enforcement of this right

continues to be somewhat of a gray area, I imagine.

You have been in touch with the acting leadership of the OSC,

the Office of Special Counsel, about the issue, and I need to know

where that sits right now.

Mr. BERRY. Mr. Chairman, I am very honored and extremely

pleased that my General Counsel now at the Office of Personnel

Management was a previous Special Counsel and held that position

during the Clinton administration, and is an outstanding attorney

and one of the brightest legal minds with Federal employees’ and

retirees’ issues in this town. I know that she is in close contact

with both the Special Counsel’s Office and the Merit Systems Protection Board.

They are independent agencies, sir, so OPM does not directly affect or control either their budget or their staffing, but we do closely coordinate in terms of logic, rationale, and actions.

Right now, the President has made clear in that memorandum

that it is the law of the land that any nonwork-related irrelevant

factor is inappropriate for consideration in the Federal workplace,

and that’s going to be the responsibility for whoever the Special

Counsel that he appoints to enforce as the prosecutor, and the

Merit Systems Protection Board, as the adjudicating agency, to rule

on those actions. But the President has made clear for all of the

management of the Federal Government—senior executives, managers included—that he expects the law to be enforced.

Mr. LYNCH. Very good.

I’m not sure if the distinguished gentleman from northern Virginia, Mr. Connolly, has any questions at this point. Or do you

need a minute?

Mr. CONNOLLY. Thank you, Mr. Chairman.

I ask unanimous consent that my opening statement be entered

into the record.

Mr. LYNCH. Without objection, so ordered.

[The prepared statement of Hon. Gerald E. Connolly follows:]

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Mr. CONNOLLY. Mr. Chairman, in my district, I represent about

56,000 Federal employees and maybe as many retirees and lots of

Federal contractors; and most of those Federal contractors and

most of the large employers in my district, in fact, already have domestic partner benefits programs because they understand how important it is for recruitment and retention.

And I wonder—especially, Mr. Berry, but also you, Representative Baldwin—my comment on that whole issue of the challenge of

recruitment and retention as we move forward, we’ve got a lot of

Federal employees ready to retire in the baby boom generation.

How are we going to replace them and retain those we replace

them with if, in fact, we don’t include this as part of the benefits

portfolio moving forward?

Ms. BALDWIN. You raise a very, very important point about attracting the top talent for government service. And I don’t have

any aggregate data for you, it’s hard to pin down, but I have some

very powerful anecdotal information from my home State of Wisconsin, which just last week, by the way, enacted a domestic partnership registry and will be shortly extending those benefits to

State employees.

I represent a district with a world-class university, the University of Wisconsin-Madison, and I have received as a Member of

Congress panicked calls from chairpersons of departments at the

medical school saying, Is there anything you can do about domestic

partnership; we have the chance to land one of the most world-respected pediatric oncologists. And they’re saying if their domestic

partner isn’t recognized with benefits, they’re going to accept an

offer at another world-class university.

We’ve had a researcher from the engineering school leave the

State with an NSF grant that totaled more than it would have cost

to implement the domestic partnership benefits State-wide in Wisconsin because of the indignity of the unequal treatment in employment.

So I think there are countless anecdotal accounts of why, when

you can’t offer these benefits, you lose top talent.

Mr. BERRY. If I could, I’ll just add to and concur with the comments of the Congresswoman.

This is essential in maintaining our competitive edge in the 21st century, and the Federal Government spends between $3,000 and

$15,000, depending upon the complexity of the security clearance,

on our employees now. As you well pointed out, Federal contractors

who require those clearances, who are desperate to get them and

who have a hard time getting them, by providing this benefit, essentially the government incurs the cost of doing the evaluation on

the Federal employee, does the initial training of that employee,

and all of the expense associated with that, and then that employee

is sucked away by either the Lockheed Martin or General Dynamics or whoever provides that benefit, if this is a concern in that

case.

I look at this as a bottom-line business judgment. This is about

recruiting and retaining, and not only do we need to be effective

in recruiting across the Nation, but we’ve got to retain the employees, especially those employees with security clearances that we’re

at risk of losing because of this uncompetitive situation.

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Mr. CONNOLLY. OK.

Mr. Chairman, I just want to say I completely concur, and I

think that’s the correct way to frame the issue for the Federal Government moving forward: How will we stay competitive in the employment market when we are competing with lots of large employers who, in fact, provide these benefits?

So I’m going to be an enthusiastic supporter of H.R. 2517 and encourage my colleagues to do the same.

I thank the Chair.

Mr. LYNCH. The Chair now recognizes the gentleman from Utah,

Mr. Chaffetz, for 5 minutes.

Mr. CHAFFETZ. Thank you, Mr. Chairman. I started to chat with

you on the floor about this, but as I read this bill, doesn’t it discriminate in terms by giving same-sex couples greater Federal benefits than opposite-sex couples who may not be married?

Ms. BALDWIN. The option exists for opposite-sex couples to marry

in every State of the Union, and so it is easily cured if they want

to seek those benefits for them to enter the institution of marriage.

Aside from the States that the chairman mentioned, that opportunity does not exist in all States for same-sex partners, and to the

extent that it does exist in any States, the Defense of Marriage Act,

which is currently embodied in Federal law, would prohibit the

Federal Government from recognizing those marriages in those

States that do recognize it.

So, in other words, we have to come up with another mechanism

in order to offer fringe employment benefits—this is what we’re

talking about in this bill—to the same-sex partners of Federal employees.

Mr. CHAFFETZ. So a heterosexual couple is not going to get the

same or a man or woman living together is not going to be able

to get the same benefits as somebody who is a same-sex couple?

Ms. BALDWIN. Should they desire those benefits, they would have

the option of marrying, and that is a choice open to them but not

open to the same-sex partners of Federal employees.

Mr. CHAFFETZ. Mr. Berry, did you care to comment on that?

Mr. BERRY. I would reinforce what the Congresswoman has said.

I think it is an effective alternative there, whereas the same alternative does not exist for same-sex couples.

Mr. CHAFFETZ. What is the determining factor? Intimate relationships? I mean, how are we going to define and enforce?

Mr. BERRY. Well, as required in the legislation, it is an affidavit,

and it has substantial penalties. You know, currently our Inspector

General at the Office of Personnel Management is responsible for

enforcing fraud——

Mr. CHAFFETZ. So would you want heterosexual couples to just

fill out an affidavit? Why wouldn’t they just do that?

Mr. BERRY. Well, under this case it is defined specifically in the

legislation as same-sex, but it does—that affidavit has—is criminal

perjury. It could be—it’s enforceable not only——

Mr. CHAFFETZ. But why can’t you just fill out an affidavit: We’ve

got a relationship, we plan to live together?

Ms. BALDWIN. As we said earlier, the option is available for a

heterosexual couple to marry, and then these employment benefits

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would flow automatically on the basis of that marriage and that

spousal relationship.

Because of the Defense of Marriage Act, even those same-sex

couples who are afforded the right to marry in certain States would

not have those marriages recognized currently at the Federal level.

And so this is a mechanism that allows people like myself who’ve

been in a 13-plus-year relationship to be able to provide for my

family.

Mr. CHAFFETZ. What percentage of people do we think are going

to participate? The number I’ve heard is like 1.5 percent. Do we

have any sort of cost estimate here?

Ms. BALDWIN. You will have a witness later who is very expert

on this topic. Obviously, Director Berry has some data already. I

haven’t seen a percentage, but roughly 30,000 Federal employees.

Is that close to yours?

Mr. CHAFFETZ. Do you have any idea what percentage?

Mr. BERRY. Now these are 2003 numbers, Congresswoman, but

of the 1.8 million retirees, it’s estimated that 29 percent, 5,400, are

expected to elect the domestic partnership survivor benefit. And

that’s the basis on which——

Mr. CHAFFETZ. Sorry to cut you off. I’ve got, like, seconds to go.

I appreciate that you’ve highlighted the statistic that I was after.

And Mr. Berry, the Office of Personnel Management stated in

the Senate Homeland Security and Governmental Affairs hearing

on September 24, 2008—and I recognize how new you are to this

position, ‘‘that they do not serve as a central clearinghouse for all

Federal employees and, therefore, would not have the records nor

resources to collect and maintain such affidavits.’’

Do we have any sort of assessment as to how huge the bureaucracy is going have to become in order to not only maintain but to

service those, to enforce those?

I mean, this creates a Pandora’s box of problems it seems to me.

Mr. BERRY. No, Congressman, this is actually going to be fairly

easy to administer. Each of the agencies would just keep the affidavit on file. That would be available for investigation against fraud

by any inspector general. If fraud was discovered it would be referable to the U.S. attorney.

We see no additional cost associated with this, and the numbers

we’re talking about and the experience of the State and the private

sector in this regard show this out over the past 10 years that

there is not a huge increase, there is not a huge cost, there is not

a huge paperwork burden. So we do not anticipate any of the Federal Government in this, and this administration is ready to implement it immediately.

Mr. CHAFFETZ. In wrapping up, Mr. Chairman, I’d just appreciate if you’d go again to look at that September 24, 2008, because

I feel like the OPM was somehow compelled to have a fairly substantive approach to this in saying they are not—anyway, go back

and look at that quote.

I’d like to better understand why you come to this ‘‘this is easy’’

conclusion. In 2008, they said, ‘‘No, this will be exceptionally difficult.’’

So, with that, I’ll yield back the balance of my overtime.

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Mr. LYNCH. OK. Let me just followup on some of what the ranking member was asking about.

I have very, very good staff here and I probably know more about

this than I ever needed to know, but they showed me some studies

that have been done of all the companies out there in the United

States—some are international firms—that provide domestic benefits, same-sex couples. And they surveyed all those companies, and

they tried to figure out, what’s the take-up utilization rate among

those same-sex couples that could have, and it was very, very low.

The ranking member was not far off; it was around 2 percent,

very small. And I wonder about that in the Federal employee context, where you have a situation where someone’s going to have to

file an affidavit, and as the Director mentioned, under the pains

and penalty of perjury—some very serious penalties here, $250,000,

5 years in prison, fairly dramatic consequences for fraud.

And also, if you put the overlay of what you had mentioned before about security clearances, you’re going to have employees here

who, I think, might be even more reluctant than in the private sector to take up these benefits. They don’t want to file that affidavit

with their employer, with their Department.

Now, my understanding was that the affidavits would be filed

with OPM. Is that correct, or is it with the individual Departments?

Mr. BERRY. As it is now written, I believe Congresswoman Baldwin has recommended it be filed with OPM.

One of the technical amendments we were going to urge, because

each of the agencies follow their own payroll and retirement paperwork, until the person’s retired—once they’re retired, that paperwork would come to us. So, for existing annuitants, we would cover

that; but otherwise, for active employees, it would be with each Bureau and Department.

That’s what we would recommend as a technical amendment to

improve the legislation.

Mr. LYNCH. OK. I don’t believe that’s a hostile amendment, is it?

Ms. BALDWIN. No, sir. That would be very welcome.

Mr. LYNCH. OK. Let me ask you something else.

Earlier in your testimony, Director Berry, you said something

about retirees utilizing same-sex benefits. However, my reading of

the bill, this will just be for active employees, and so retirees would

not be eligible. Am I misreading that?

Ms. BALDWIN. You are not misreading that, but as Director Berry

indicated, in their review of the legislation, OPM has come up with

a number of technical recommendations, and that would be one.

And as you heard earlier, it has some near-term offsetting effects

in terms of the cost of the bill. So it would be something that we

should certainly consider.

Mr. BERRY. Mr. Chairman, as a technical amendment, we would

recommend the inclusion of existing annuitants and allowing that

program for them. And so we would be happy to work with your

staff to achieve that.

Mr. LYNCH. That’s something that’s new to me right now, but

that’s why we have hearings.

Let me just say this. I know there has been a doctrinal priority

to try to treat active employees and retirees the same, and that’s

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been something that the Federal Government has tried to do as an

employer generally. I have to chew on that for a little bit and figure out what that really means. It’s new. It’s obviously just come

up. But we’ll try to work with you again.

I’m sure I’ve exhausted my 5 minutes.

Mr. Connolly, you’re recognized for 5 minutes.

Mr. CONNOLLY. Well, I wanted to ask Mr. Berry, from his point

of view, given his responsibilities, what kind of feedback are you

getting from Federal agency heads, in terms of the value of this as

a potential tool for recruitment and retention?

Mr. BERRY. There’s no question, Mr. Connolly, this is a very valuable tool. As has been noted in the testimony, 83 percent of the

Fortune 100 companies in our country today provide this. Those

companies are not doing this out of social work or charitable purposes. They are doing it because it is a valuable recruitment and

retention tool in their personnel portfolio.

So they are not motivated here on some social agenda. They are

not restricted by some of the discussion that the Federal Government is encumbered by. They’re making this as a bottom-line business assessment and judgment, and that is specifically the position.

As I talk with Cabinet Secretaries, the President, and the White

House staff, it is clear, this will be a helpful tool. It is not going

to answer all the problems of the Federal Government; we have

many other issues to deal with. As you know, hiring reform is

going to be one. I was talking with Congressman Chaffetz about

our efforts to increase our hiring of veterans. We have many efforts

we’re going to be undertaking.

But this, again, is an important tool that is going to help us

maintain our cutting edge with the private sector here in the 21st

century.

Mr. CONNOLLY. And I would just observe in closing—because we

have to vote, I know, Mr. Chairman—I find it odd that somebody

would even suggest inferentially that this benefit provision, could

itself constitute discrimination against folks in opposite-sex relationships when, of course, the screaming contradiction of that question is that marriage is available to people in that situation, and

it is not in all but a handful of States to those in same-sex partnerships.

And so that’s why you have to, as Representative Baldwin indicated, look at other ways of trying to address the issue of fairness

in the provision of benefits. And I certainly look forward to expanding that conversation with Mr. Chaffetz and his colleagues in the

weeks and months coming.

I thank the Chair.

Mr. LYNCH. I thank the gentleman.

All right. As you know, we have votes, and I’m going to have to

allow the witnesses to go up and vote.

Here’s what I’d like to do. We’ll go and do votes. I don’t want to

dismiss this panel. When we come back, I’m going to maybe have

a couple more questions, and then I’ll give you each, say, 3 minutes

because we have not exhausted all the questions that could arise

on this issue; and I’ll ask you to just try to fill in those gaps that

we may have missed in our questioning.

And then I’ll pull the next panel, OK?

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Thank you. So we’re in recess. They tell me it’s just one vote, so

we might be back in 20 minutes. OK.

[Recess.]

Mr. LYNCH. Good afternoon and welcome back. As I had said before the break, I did want to offer one more question.

Just in terms of eligibility, I understand in reading the bill, that

Ms. Baldwin has presented, it defines same-sex beneficiaries as

being, ‘‘unmarried,’’ and of course, now with the situation in Massachusetts and Connecticut and a bunch of places where, at least

according to those States and between some States and the District

of Columbia, those folks are now married. So it would appear that

it might be the unintended consequence of this legislation that

same-sex couples that are married, now would not be helped, but

would be hurt by this bill.

Now, I’ve gone over it with our own counsel. They have instructed me that since the Federal Government does not at this

point recognize marriages other than traditional marriages—one

man, one woman—that from the Federal Government’s standpoint

everybody outside that group is unmarried, period.

So it’s really not a conflict is what it’s saying. But to get it on

the record, I just wanted to ask the Director and the lead sponsor

of this bill whether it is your understanding that is the case as

well.

Mr. BERRY. Mr. Chairman, thank you.

It is my understanding that what you have just described is the

situation. But to be extra sure, because obviously in light of this,

our counsel would like to work with yours and the counsels from

the Department of Justice to make sure that we resolve this issue

so that we do not have any unfavorable treatment for either Federal employees or retirees in those States that do use that term as

an unintended consequence.

So we would be happy to work with the author and the committee to make sure that we draft this correctly to ensure equal treatment in those cases.

Mr. LYNCH. OK.

Ms. Baldwin.

Ms. BALDWIN. I would associate myself with the comments of Director Berry with regard to this point.

There’s certainly a strong reason why that language originated

in the bill in earlier iterations before any State had recognized

same-sex marriages. I think your legal counsel’s analysis is accurate, but I think additional clarity, because of the progress being

made in a number of States, is warranted.

Mr. LYNCH. OK. That satisfies me.

In that respect, I now yield 5 minutes to the gentleman from

Utah, Mr. Chaffetz.

Mr. CHAFFETZ. Thank you, Mr. Chairman.

I have a growing concern about how we can possibly define the

terms and enforce the terms that constitute who would be eligible

and who wouldn’t be eligible. I don’t know how in the world it can

be enforced. I don’t have any idea or clue how it can possibly be

defined. It certainly hasn’t been defined in the legislation from my

perspective.

Would you care to address that.

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Ms. BALDWIN. Well, I would hope that the fact that literally

thousands of private sector corporations and State and local units

of government have seen fit to enact domestic partnership registries and offer employment benefits would give some comfort to

the gentleman in terms that it can be managed, and it is being

managed across this country very well.

We lag behind in the fact that the Federal Government does not

offer these employment benefits, but I think that the legislation

very carefully sets forth the eligibility requirements.

The affidavit is an additional protection against fraud. No, we

don’t want people defrauding the Federal Government either to

purport they’re in a marriage that they’re not in or to purport

they’re in a domestic partnership that they’re not in. And so these

provisions have been specifically added as strong fraud prevention

language.

But I would say you should take comfort in the fact that this is

done across the country in other jurisdictions of government as well

as the private sector, and it’s working very well.

Mr. CHAFFETZ. Mr. Berry, one of the key or prime things that

you cite as a reason to do this is the need to attract and retain employees. Where in the Federal Government do we have a lack of applicants? Because I guarantee I can get some applicants to probably show up tomorrow. Where are we lacking in terms of being

able to recruit people?

Mr. BERRY. Congressman, this is a case you would have to look

at each specific case.

Mr. CHAFFETZ. Can you name one where we don’t have——

Mr. BERRY. Oh, absolutely. Right now, we give direct hiring authority for veterinarians, doctors, nurses, engineers. The list goes

on and on because we cannot effectively recruit in those professions, and so right now we don’t even require competition. If a Federal agency finds a nurse that walked in the door and proved she

is qualified, they can hire her in the morning because we can’t find

them. We can’t fill those jobs, and these positions are significant.

They’re one of our greatest challenges, and so in each of these

areas we are attempting to go out there with sharp elbows and

compete with private sector, university settings, State governments, and local governments, so that we can provide critical services.

You know, veterinarians at the Food and Drug Administration

right now, we do not have enough to do the food safety management that we need to supply for the country. These are tough challenges we face as the employer for the country, and going to allow

us—I’m not saying it’s going to solve that problem entirely, but for

the same-sex partner, the person who has a partner who is now

working for Archer Daniels Midland and has domestic partner benefits, and who is a veterinarian, I in no way am going to have that

person be able to say, they’re going to move, relocate, and lose the

health insurance for their partner if that’s their condition of Federal employment. This is going to allow me now to attract that person, or at least, be competitive.

So I think it’s going to be a very powerful tool for us. It’s not

going to solve all the problems. I’m not portraying this is a panacea, but it’s going to be one important tool in the tool belt.

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Mr. CHAFFETZ. I guess I would be very curious to see a list of

where you have some gaping holes. I think the American people—

I find the overall sweeping generalization—and, granted, we have

limited time here. To say that we have these big, gaping holes

when our unemployment is north of 9.5 percent, I think if we’re not

sharing that with the American people, we ought to be. I don’t see

it. I’d love to see that list.

Mr. Chairman, as we wrap up this panel here, I know we have

others waiting, I appreciate your passion and commitment to this.

I believe that in the traditional definition of marriage, as between one man and one woman, there are benefits and there are

things that we do as a people to encourage that relationship. And

I stand proud on that, and I don’t think we should try to create

something that is under a different name. That’s my own personal

opinion. I know your opinion would differ, and that’s what makes

this body so great.

I hope, Mr. Chairman, as this moves forward, that we have proper time to have this debate in greater numbers and that there isn’t

some procedural thing that would get in the way of us being able

to vote in a broad sense as this moves forward.

So, again, I thank you both.

I’ve gone over my time, and thank you, Mr. Chairman.

Mr. LYNCH. I welcome the gentleman’s remarks. I know we have

not, as I said before, exhausted the full range of questions that

might be offered, and with our continual interruptions on the floor,

it’s made it even more difficult.

What I’d like to do, though, is offer each of you 3 minutes if there

are areas in this bill that you would like to amplify or issues that

you feel have not been appropriately addressed, I give you an opportunity to do that now in closing.

Ms. Baldwin, you’re recognized for 3 minutes.

Ms. BALDWIN. Thank you, Mr. Chairman, for this very generous

allocation of time to review this bill with the committee and exchange back and forth with questions. I just want to summarize

with a couple of points.

In many ways, I regard this as an issue of equal compensation

both in pay and benefits, but predominantly, we’re looking at benefits for equal work where you have gay or lesbian employees of the

Federal Government who are in committed, lifelong relationships.

They have families they wish to protect, and they are not receiving

the tools to be able to provide those protections, be it health care,

survivor benefits that we’ve talked about, family and medical leave.

You’ll hear later from Ambassador Guest about the employment

benefits related to those we ask to serve our country overseas that

are very important if you want to be able to protect your family.

And so, I regard this very much as an issue of equal compensation

for equal work where we have identified a glaring discrepancy

based merely on sexual orientation.

I want to respond briefly to the ranking member’s comments relating to marriage versus the very limited scope of this bill relating

to fringe benefits.

Marriage, which we have long looked to the States to define and

regulate, is an aggregation of literally hundreds—in many States,

thousands—of benefits and obligations that inure to those who are

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able to enter the institution of marriage. And so I, in no way, view

this measure, as limited as it is, as a way to replicate marriage by

another name.

And if you look even to the Federal level, I think it was in either

the late 1980’s or early 1990’s that a request for an analysis of how

many times the Federal code references spouse, husband, wife,

marriage—again, thousands of references, lots of benefits and lots

of obligations. This in no way replicates that.

While I am a supporter of equal marriage rights, that is not what

we are here today to speak with you about. This is much more a

matter of equal pay and equal compensation and benefits for those

who arrive at the workplace and work at their jobs diligently and

deserve to have equal respect of their employers.

Mr. LYNCH. Thank you.

Mr. Berry for 3 minutes.

Mr. BERRY. Mr. Chairman, thank you so much for the hearing

today, for your opportunity; and Congressman Chaffetz, for your

engagement and involvement. We appreciate your attention and

the courtesies that you have extended throughout the day.

I would just make a couple of quick points, just underscoring the

President’s support for fairness across the Federal Government for

treating all employees equally. Also, as the Director of OPM, for

supporting it as an opportunity to maintain our competitive edge.

Congressman, you’re right, with the economy now, for many Federal positions, we have an overabundance of applicants, but we do

face shortages in some critical areas that are very important, and

this will be one tool that will allow us to maintain that.

And the economy isn’t going to remain down forever, and as we

move forward in the 21st century. We have very complicated jobs

in the Federal Government, and they’re essential to protect the life,

health and safety of our citizens. And it is essential that we be able

to both recruit and retain once we’ve gotten and made a substantial investment in the best and the brightest, and this will be one

of those tools, just like the rest of our health benefits packages are.

I’d also just like to mention, there is nothing in this legislation

that requires the repeal or even the amendment of the Defense of

Marriage Act. This is not an attempt to seek that. Though the

President has made clear he supports the repeal of that legislation,

it is not required for this legislation. And I think it’s important to

remember that as we’re having this debate.

This is a debate about health benefits, life insurance, vision, and

dental. It’s about a benefit package that we’re just trying to provide

our employees fairly across the board. It is not an attempt to redefine marriage. It is not an attempt to overwhelm the Defense of

Marriage Act. That is not required.

I would have to check this out, but one of the things in terms

of your questioning, Mr. Chaffetz, about whether we extend this

benefit to heterosexual couples actually might entangle us in

DOMA, whereas this legislation does not. And so I think we would

have to be careful of that because, as we define or redefine those

terms in that way, it might more directly engage DOMA. This legislation now doesn’t.

And so I think we’re best in keeping it that way and keeping it

as a straightforward health benefit, employee vision, and dental,

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and move forward with this as a competitive tool for the 21st century.

So, with that, Mr. Chairman, I thank you very much and look

forward to working with you on the many technical amendments

we’ve discussed today. And thank you again for the courtesy today.

Mr. LYNCH. Thank you both, Director Berry, Representative

Baldwin. We appreciate your willingness to come before the committee and help us with our work. We bid you have a good day,

and we want to welcome the second panel. Thank you.

Welcome. We will continue with this hearing. It is the custom of

this subcommittee to swear witnesses who will offer testimony.

Could I please ask you to rise and raise your right hands.

[Witnesses sworn.]

Mr. LYNCH. Let the record show that all of the witnesses have

answered in the affirmative.

I will offer a brief introduction of each of our witnesses.

Ms. M.V. Lee Badgett is currently the research director of the

Williams Institute for Sexual Orientation Law and Public Policy at

UCLA. Her research focuses on family policy issues and on labor

market discrimination based on sexual orientation, race and gender. Ms. Badgett is also the director of the Center of Public Policy

and Administration at the University of Massachusetts-Amherst,

where she also serves as a professor of economics.

Mr. Greg Franklin is the current assistant executive officer of

Health Benefit Services for the California Public Employees’ Retirement System [CalPERS]. In this capacity, Mr. Franklin is responsible for purchasing health care for nearly 1.3 million

CalPERS members at an annual cost of more than $5.5 billion.

Mr. Franklin is also responsible for the day-to-day operations of

the health benefits branch where he oversees such offices as the

Office of Health Plan Administration, the Office of Employer and

Member Health Services, the Office of Health Policy and Program

Support and the Division of Operation and Infrastructure Support.

Ms. Carolyn E. Wright has served as the vice president of Corporate Human Resources for American Airlines since May 2001.

Ms. Wright’s responsibilities include strategy development and program design in the areas of compensation, benefits, retirement,

leadership development, Workers Comp and recruiting. Previously,

Ms. Wright held the position of senior vice president of Customer

Services at American Eagle Airlines.

As the procedure within this committee, each of the witnesses

will have 5 minutes. I didn’t explain it to the last two witnesses

because they’re here so often. The box in front of you will show a

green light during the time which you’re invited to offer your 5

minutes of opening statement. When it turns yellow, you’ve got 1

minute to sum up, and if it turns red, your time for statement has

expired.

So, Ms. Badgett, I’d like to welcome you to offer your opening

statements for 5 minutes.

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STATEMENTS OF M.V. LEE BADGETT, RESEARCH DIRECTOR,

WILLIAMS INSTITUTE ON SEXUAL ORIENTATION LAW AND

PUBLIC POLICY, UCLA SCHOOL OF LAW; GREGORY A.

FRANKLIN, ASSISTANT EXECUTIVE OFFICER, HEALTH BENEFIT SERVICES, CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM; AND CAROLYN E. WRIGHT, VICE PRESIDENT,

CORPORATE HUMAN RESOURCES, AMERICAN AIRLINES

STATEMENT OF M.V. LEE BADGETT

Ms. BADGETT. Thank you. Good afternoon, Chairman Lynch. As

an economist who has studied these issues for many years, I’m

grateful for the opportunity to speak today about H.R. 2517.

Today, I’d like to make four points about the need for the bill and

the budgetary implications of the bill.

First, you’ve already heard from the other witnesses, and I’ll just

confirm from an economics perspective, that by equalizing the

treatment of same-sex partners of Federal employees, this bill

would put the Federal Government in the mainstream of modern

compensation practices. The shift has been dramatic, it’s been

rapid and it will only continue. There will be more and more employers who will offer these benefits, putting the Federal Government farther and farther behind if this bill is not enacted. I’ve

studied the experiences in many of these employers, and they have

reported that the implementation of domestic partner benefits has

been quite easy and the cost quite manageable.

The second point that I want to make is that the employees who

receive these benefits gain a great deal in terms of security. They

sign up for them to protect their family’s health and well-being. At

least some of those family members right now are quite likely to

lack health insurance. A recent study that I did found that 20 percent of people who are in same-sex couples are uninsured, a rate

that is almost double that of married employees, and it’s significantly higher than the average in the United States; and this

greater vulnerability is, quite clearly, at least partly a result of the

employer’s failure to offer domestic partner benefits. So many Federal employees now may have family members who are not covered

by insurance at all.

Third, the cost of providing benefits to domestic partners is small

and manageable. Last year, I coauthored an independent study

that estimated the cost of extending benefits to the more than

34,000 same-sex partners of Federal employees. We identified that

number from the American CommunitySurvey. We estimated that

providing benefits for nonpostal employees would cost the Federal

budget approximately $41 million in the first year and $675 million

over 10 years. These are cost estimates that are quite similar to

those of Director Berry.

The majority of these costs are concentrated in the area of employee health benefits and retiree health benefits. We predicted enrollment in health care plans would increase, but by a very small

percentage, approximately 0.55 percent, which works out to being

in our estimate roughly 14,000 employees.

As a result of this increase in enrollment, additional health care

benefits for the same-sex partners of Federal employees—and here

I’ll just go ahead and include postal service employees as well—and

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their kids would cost about $60 million in the first year. That’s a

very small percentage increase, about 0.4 percent increase in

health care spending for Federal employees last year; and that increase is very much in line with the experience of employers in the

private sector and the States and cities that have offered these

benefits.

As you discussed in the last panel, there’s some question about

retirees. We estimated—we assumed that Federal employees, as

they retire in the future, would be able to cover their partners in

the future as retirees. So we estimate that the cost of health care

benefits for those partners could increase by $127 million over 10

years.

The retirement benefits themselves would have a very small

change in cost to the government. In fact, as was also mentioned

in the last panel, there would be a reduction in annuity payments

over the short term as Federal employees offer survivor benefits for

their same-sex partners, and that would save approximately $108

million over 10 years. And I’ll just note that the findings of our

study are not only in line with the OPM figures, but also they’re

very similar to the Congressional Budget Office’s 2003 analysis of

a similar bill.

The cost for all the other benefits are minimal, and although

they’re not expensive, the ability to take family medical leave or to

enroll a partner in life insurance or long term care insurance or to

receive death and disability benefits are quite important to those

Federal employees who will take advantage of those and can make

a big difference in the lives of their families.

My last point is that several factors will help offset some of these

costs, although some of them are hard to measure precisely. One

factor that I don’t think has been mentioned yet is that employees

of same-sex partners will need to pay additional Federal taxes on

the imputed value of the benefits they receive as employees if this

bill were to pass. That would offset some of the costs of the bill.

Approximately $118 million in revenue over 10 years would be

added back in.

And then the second factor, which you’ve heard a little bit about

is that the Federal Government is likely to see lower turnover

amongst its employees since the Federal employees who have partners are less likely to seek employment elsewhere. Lower turnover

means lower cost of recruiting, hiring and training new employees,

and there are several studies that show that domestic partner benefits do significantly reduce the likelihood that employees will look

for jobs in other places. So I think this is an effect that is very real.

It’s hard to measure; it’s hard to actually calculate the cost impact,

but it’s real.

So putting these pieces together suggests that some of these

gains will offset the very small cost of offering equal benefits to

same-sex partners. The experience of thousands of employers offering these benefits in the United States today, as well as existing

research, support my conclusion that the Federal Government can

adopt and implement this new policy easily and affordably.

Thank you.

Mr. LYNCH. Thank you.

[The prepared statement of Ms. Badgett follows:]

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Mr. LYNCH. Mr. Franklin, you’re now recognized for 5 minutes.

STATEMENT OF GREGORY A. FRANKLIN

Mr. FRANKLIN. Good afternoon, Chairman Lynch and Ranking

Member Chaffetz. I’m Gregory Franklin. I’m the assistant executive officer for the Health Benefits Services branch of the California

Public Employees’ Retirement System [CalPERS].

CalPERS is the largest public employee pension fund in the

United States, with assets of approximately $182 billion. We administer retirement and health benefits for more than 1.6 million

active and retired California public employees and their families on

behalf of the 2,600 California public employers. As of June 30,

2008, we were paying more than $10 billion annually in benefits

to 476,000 retirees and beneficiaries.

CalPERS also administers a health benefits program that covers

nearly 1.3 million members, the employees and retirees of the State

of California, contracting local public agencies, and special districts.

We’re the second largest purchaser of employee health benefits in

the Nation after the Federal Government. We’re the largest purchaser of employee health benefits in California.

In 2000, a new State law, Assembly Bill 26, went into effect that

established a domestic partner registry at the California Secretary

of State Office. Under the law, partners of opposite sex, if one of

whom was over the age of 62, and partners of same sex may register for domestic partnership. Registration as domestic partners,

however, does not confer any rights upon the partners unless specifically provided by law.

Assembly Bill 26 also amended California’s Public Employee

Medical and Hospital Care Act, which is administered by CalPERS.

To allow—to allow covered employers to offer health benefits to domestic partners of its employees retirees as an option, the State of

California began health benefits to domestic partners in January

2000. Some public agencies also began offering health benefits to

domestic partners as well.

In 2005, Assembly Bill 105, the California Domestic Partners

Rights and Responsibilities Act, became law. The law, which was

supported by the CalPERS board administration, confers spousal

rights on domestic partners, giving them statutory rights to certain

employee benefits, as well as entitlement to continued health insurance coverage after the death of a CalPERS member. The essence

of Assembly Bill 205 put domestic partners on equal footing with

spouses relative to employee benefits under California law.

Assembly Bill 205 mandated the provision of health insurance

coverage for domestic partners in the same manner as provided to

spouses, removing the issue from collective bargaining process at

the State level and eliminating local agency discretion.

Of note is that the CalPERS long-term care insurance program

was exempt from this Assembly Bill 205 because the program is

governed by the U.S. Internal Revenue Code as a tax exempt governmental plan.

And the Federal Government does not recognize domestic partnerships. Allowing domestic partners to enroll in the long-term

care plan would, in effect, be enrolling persons who are not eligible

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under Federal tax law and therefore threaten the tax-exempt status of the plan.

In a related issue, the premiums for eligible domestic partners

who are enrolled in a regular CalPERS health benefits program

must be treated as taxable income for Federal tax purposes—again,

due to the Federal Government not recognizing domestic partnerships for government programs.

Premiums of spouses are tax deductible. Under Assembly bill

205, CalPERS treats partners just like—it treats domestic partners

just like spouses with respect to eligibility for CalPERS retirement

benefits.

The most significant change relative to retirement benefits is

that surviving registered domestic partners of deceased CalPERS

members and retirees are now entitled to the same death benefit

allowances that were previously only available to surviving

spouses.

Assembly bill 205 also gives a domestic partner an entitlement

to community property interest of a CalPERS member’s benefits

upon dissolution of a domestic partnership.

The most significant implementation issue related to what types

of domestic partners are eligible for benefits under Assembly bill

205.

In California, a legal domestic partnership is one that is formally

registered in the Domestic Partner Registry administered by the

California Secretary of State’s Office. But the issue of domestic

partnership formed outside of California was less clear.

As of July 1, 2009, CalPERS covered 3,449 members who have

3,620 domestic partners and dependents enrolled in the health benefits program. For 2009, the total premiums for covered domestic

partners is estimated at $19.5 million, which represents 0.33 percent of our total $5.8 billion in premiums projected to be paid in

2009. Unfortunately, we cannot provide similar statistics for our retirement benefits program.

Overall, we do not believe that providing retirement and health

benefits to domestic partners of CalPERS members produce significant burdens on staff workload or administrative budgets. I hope

this information provides you with a better understanding of our

experience incorporating domestic partners’ benefits into our retirement and health benefits program.

I’m happy to answer any questions you may have.

[The prepared statement of Mr. Franklin follows:]

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Mr. LYNCH. Mrs. Wright.

STATEMENT OF CAROLYN E. WRIGHT

Ms. WRIGHT. Chairman Lynch, members of the subcommittee,

my name is Carol Wright, and I’m the vice president of Corporate

Human Resources for American Airlines based in Fort Worth, TX.

Speaking for the more than 80,000 employees for American Airlines and our partners at American Eagle, we are honored to be

here today to address relevant issues in your consideration of H.R.

2517, the Domestic Partnership Benefits and Obligations Act of

2009.

As you can appreciate, we are by no means experts on the Federal work force or the specific human resource benefit questions

you are raising with this legislation. We have not had the opportunity to study it in detail. Nor do I believe we can competently

offer recommendations on all aspects of the bill. Instead, you have

encouraged us to share with you our experience as a corporate

leader in the private sector and to share our views on best employment practices and inclusion, which speaks to the overall goals of

this legislation.

As you may be aware, American, American Eagle and the

AmericanConnections airlines serve 250 cities and 40 countries

with, on average, more than 3,400 daily flights. As a global airline,

American recognizes the importance of the relationships among its

customers, employees, business partners and suppliers and the

communities that we serve.

We must embrace the diversity that exists within each of our key

constituencies and operate in an inclusive manner for all of these

groups to thrive. As a company that bears the name ‘‘American,’’

we also know that much is expected of us and we hold ourselves

to a high standard. We know that promoting diversity is a journey,

and America is committed to making further progress as we weave

it into the very fabric of our company.

Beginning in 1993, we were the first major airline to include sexual orientation in our equal employment opportunity policy, and we

added gender identity in 1999. In 1994, we also recognized our lesbian, gay, bisexual, and transgender employees as our first official

employee resource group. Last month, we celebrated its 15th anniversary.

Building on these first steps in the late 1990’s, we decided to examine benefits parity for all of our employees, and to identify any

gaps in our soft and hard benefits, including health and other insurance coverage, travel companion privileges, and other options

that customarily were available to legally married heterosexual

spouses.

Philosophically, we have always tried to recognize employees as

individuals with their own family needs, talents, and ambitions. All

deserve equal respect and acceptance for the true worth and

unique experiences and skills that they bring to their jobs.

We determined that treating the employees in committed relationships with same-sex partners as a family rather than as single

people was consistent with that philosophy. So in 2000, we became

the first major airline to offer benefits to the same-sex partners of

our employees, as we had long done for married spouses.

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I’m not able to disclose the proprietary financial details about the

costs or fiscal implications of our policies, but I can readily report

that the actual impact on overall human resource budget is proportionately modest and manageable.

So what are the upsides? We see a stronger work force in every

sense. We are instilling a more enduring sense of loyalty and commitment and helping to motivate our LGBT employees to be all

they can be and to bring their whole identity to work. We never

saw this as a special case or privilege, but simply doing the right

thing in a business setting that underscores fairness, equity, and

inclusion.

What are the implications for the Federal Government and your

extraordinarily diverse work force? We cannot predict with any certainty the future market conditions for employment and worker retention, but we can report that America’s top corporations are

showing the way on best practices.

According to research from the Human Rights Campaign, roughly 80 percent of the Fortune 100 now offer equal same-sex partner

benefits, and the same can be said of the 57 percent of the Fortune

500. Last year in a national survey commissioned by Out and

Equal Workplace Advocates, and conducted by Harris Interactive

with Witeck-Combs Communications, 64 percent of all American

adults agreed that job benefits should be extended equally to committed same-sex partners that are available to legally married

spouses.

Mr. Chairman, in closing, I also have a recently updated document entitled, ‘‘Diversity and Inclusion: A Way of Life at American

Airlines’’ that I would like to submit for the official record.

Mr. LYNCH. Without objection.

[The information referred to follows:]

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Ms. WRIGHT. Thank you for inviting American Airlines to be here

today to report on our past decade experience on this topic. We continue to work hard and sustain and build our commitment to diversity leadership and hope our testimony reflects some of the lessons

we have learned and are proud to share with you.

Thank you. I will be happy to answer any questions.

Mr. LYNCH. Thank you.

[The prepared statement of Ms. Wright follows:]

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Mr. LYNCH. I’m going to yield myself 5 minutes for some questions.

You are each experts in your own right, but, Ms. Badgett, you

have the unique, I think, perspective of having conducted fairly extensive studies in the area of Federal employee employment practices and Federal benefits. And so, having had an opportunity to

look at this from a unique angle, I think that could be beneficial

to the committee.

Have you thought about what the discretionary spending and

nondiscretionary spending ramifications would be on the Federal

Government if we were to extend these benefits? I know you are

an economist and an accomplished one, but have you thought about

it from that perspective and could you just offer your thoughts on

that?

Ms. BADGETT. Do you mean distinguishing between spending in

those different categories or taken as a whole?

Mr. LYNCH. Either way. I think that would be helpful. That is

a tall order. I’m not so sure you’ve broken it down into that level.

But that’s what I’m thinking about.

Ms. BADGETT. We have broken it down to that level, and the direct spending, which comes largely from health benefits and the

annuity payments, is the smaller of the two by our estimates.

In a given year, it varies. It will add up over time because we’ve

made the assumption, for purposes of estimation, that retirees of

current employees would be eligible.

So if I said that right, current employees, when they retire, their

partners would receive these benefits. So those will accumulate

over time in terms of the health care benefits, but because of the

lower annuity payments, much of that will be offset. So that’s actually a fairly small annual amount. It starts off being zero on Day

One, but over time would rise over 10 years to about $31 million

a year.

On the other side, in terms of discretionary spending—so we’ve

taken out the Postal Service cost, we’ve taken out the tax revenue

offsets. In those cases it starts out at roughly $52 million. This is

our study—we did it last year so it’s the last fiscal year—and

would increase overtime to about $84 million by the end of 10

years. So the total for 10 years would be $660-some million.

Mr. LYNCH. I tried to read through all of the information. You

came up with an assumption, I think it was 34,000 employees

same-sex partners within the Federal Government. How did you

arrive at it? How did you extrapolate that number? I was just curious.

Ms. BADGETT. We actually measured it. Since 1990, both the

Census and now the American Community Survey have allowed us

to identify people who say they have same-sex unmarried partners

in their household. We counted them up in the American Community Survey and found there were 34,000 same-sex couples in

which at least one person was a Federal employee. And in about

4,000 of those cases, both partners were Federal employees.

Mr. LYNCH. That would have been my next question.

Ms. BADGETT. So that leaves about 30,000 people that we would

be concerned about.

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Not everyone who has a domestic partner would sign that partner up for benefits. We know this from many other employees’ experience. We estimated the number who would sign up by looking

at the employment status of the partner. Many of those people will

have employers who offer them health care benefits already, so

they may not be interested in signing up for their partner’s benefits

in the Federal Government.

And after we made those adjustments, looking at the figure in

the BLS about how many employers offer health care benefits, we

cut that number roughly in half. So that’s how we ended up with

the 14,000 figure that we use in the report.

Mr. LYNCH. OK. Thank you.

My time has just about expired.

I will now recognize the gentleman from Utah, Mr. Chaffetz, for

5 minutes.

Mr. CHAFFETZ. Thank you all for being here and taking the time

and being patient with us in terms of the timing. So thank you.

Let me start with you, Ms. Wright. My understanding is that

your policy was implemented in the year 2000. Do you have any

quantifiable data that proves or demonstrates that this policy retains employees? Do you have any quantifiable data to share with

us?

Ms. WRIGHT. What I can say is part of a larger package of benefits, we know we have a very low turnover rate at our airline, we

know through anecdotal——

Mr. CHAFFETZ. You don’t have anything quantifiable that would

distinguish——

Ms. WRIGHT. Nothing that would attribute it to any single individual item like this. But we do know anecdotally that we have

people who choose to——

Mr. CHAFFETZ. I would note anecdotal information is important,

but I would also note it’s anecdotal. There’s nothing that distinguishes, identifies, or can quantify something that we are trying to

quantify.

Let me followup on the chairman’s question here, going back to

Ms. Badgett here.

In your testimony, you state that 20 percent of people in samesex couples are uninsured. Have you done any research? Because

my understanding is that opposite-sex couples that are engaged in

relationships actually represent a much higher uninsurance rate

than same-sex couples. Is that your understanding?

Ms. BADGETT. Yes, that is correct. We found that in the samesex study.

Mr. CHAFFETZ. Do you believe that this bill in any way discriminates against anybody else? I’m not trying to give you a trick question. But my concern is you have heterosexual couples who maybe

aren’t married—because becoming married, it takes a commitment,

there is a lot of paperwork, there are legal ramifications, it’s very

difficult to untangle that relationship from a legal standpoint.

Do you believe that this legislation—because I do—discriminates

against heterosexual couples?

Ms. BADGETT. I wouldn’t call it discrimination. As the last panel

had a discussion about this same topic, they pointed out—and I

think this is correct—that when you compare the situation of someVerDate 11-MAY-2000 15:03 Oct 21, 2009 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6633 U:\DOCS\52628.TXT KATIE PsN: KATIE
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one in a same-sex, unmarried couple, to that of someone in a different-sex unmarried couple, there is no option. There is no legal

way for the same-sex couple to establish a legal relationship that

would allow them to get these benefits. For different-sex couples,

they do have that option.

So from that perspective, no, I don’t think that’s discrimination.

Mr. CHAFFETZ. We’ll go ahead and disagree on that one, but I appreciate it.

I would just note here the majority memorandum states that,

‘‘Although costs will increase for the Federal Government under

this bill, it will also generate an increase in income and payroll

taxes.’’

I could see where there is taxing on benefits and the ramifications that this would have, not only on individuals bus also to the

Federal Treasury, but I also find a huge, huge disparity between,

oh, this is only going to affect 0.2-something percent—as I heard

on the first panel—and then to others who want to say, oh, no, the

same-sex couple population is like 10 percent. It’s huge. It’s huge.

How do we deal with the huge disparity in those numbers, because they seem to be used at convenience probably on both sides?

But I can’t find anything that’s quantifiable nor do I believe that

the Census data, which is now nearly 10 years old, provides adequate information or background to try to assess the true cost of

what it would cost to implement this.

Ms. BADGETT. Well, addressing that particular question you’ve

raised two separate issues of measurement, and that’s how I look

at this. One has to do with how do you count the number of people

who think of themselves as being lesbian, gay, or bixsexual, which

I think is a very different question. That’s where the 10 percent is

often raised. And I think that is a completely different issue.

In thinking about how many couples will actually sign up for

benefits, you are looking at, first of all, a much smaller group.

Those are people who are in relationships in which they live together.

So the unmarried partners are counted in the Census and the

American Community Survey, which is actually done every year.

So we’ve used much more up-to-date figures than the Census figures. So that’s a much smaller pool of people.

And then in thinking further about the people who need those

benefits because they don’t have access to them either because

they’re Federal employees themselves or because they have an employer who offers those benefits, at that point you are starting to

whittle away at that much larger number. And our goal as analysts

is to get down to the point of trying to figure out how many people

will actually want to sign up for those benefits.

And that will be reflective of at least a couple of other things.

One, that tax payment is going to be a disincentive for many people

to sign up for them. So that will, perhaps, reduce some of the folks

who sign up.

And then, finally, there is perhaps some concern about stigma if

people believe that they will be thought of as lesbian, gay, or bisexual, which is probably how they will be thought of if folks know

that they are in a same-sex relationship. Then they may also be

reluctant to sign a piece of paper saying that.

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That’s why that’s important. We haven’t talked too much about

it, but that is why I believe it’s important to have both a very

strong nondiscrimination policy alongside of a domestic partner

benefits policy to ensure the people who sign up for benefits won’t

be hurt in some other way.

Mr. CHAFFETZ. Thank you. I see I’m out of time.

Mr. LYNCH. Mr. Cummings for 5 minutes.

Mr. CUMMINGS. I want to thank you all for your testimony.

Ms. Wright, I find it very interesting what American Airlines has

been able to achieve. In your testimony, you talk about what actually began happening back in 1993. And as I listened to just the

last set of questions here, I’m wondering how did you all break

through to be able to accomplish what you accomplished? What

kind of hurdles did you overcome and how did you get to where you

are today? It seems like you had to go against some pretty heavy

artillery. I’m just guessing.

Ms. WRIGHT. I think that is a fair statement.

As I’m sure you can well imagine, you get there through a conviction of knowing what you are doing is right. And at American, we

have employees from all walks of life, all cultures, nations, genders,

races, religions, and sexual orientation. And for us, the diversity is

becoming woven into the fabric of our company, and it’s about what

we’ve come to create as an understanding that diversity and inclusion is not about all having the same background, the same beliefs,

but in acknowledging and accepting the diversity of beliefs and valuing what each individual brings.

And so it’s that sort of core understanding on the part of our

company and our employees of what diversity means, and the acceptance of that helps us get through when there are disagreements and different perspectives. It’s a matter of bringing them all

forward and letting them all be heard.

Mr. CUMMINGS. You talk about morale. How do you determine

that you have stronger morale when you have these kinds of problems? How do you come to these kinds of conclusions?

Ms. WRIGHT. I think there are several things. One, we have a

very low turnover rate. We do periodic surveys of our employees.

We try to understand what, through those surveys, retains people,

and when they leave, when they exit, why they exit, to understand

where we are doing well and where we can be stronger. And we

continue to take all of that information, plus the anecdotal evidence, talking to the employees and not just the lesbian, gay,

bixsexual and transgender employees, but other employees who understand and value the inclusiveness and the respect for the individual that’s demonstrated by our policies.

So we look through all of that and say, are we on the right track?

It’s a journey. It’s not a destination. And we continue to evolve in

trying to be more inclusive and doing a better job of making it a

part of our culture.

Mr. CUMMINGS. As you moved to bring about those types of policies, was there any kind of education accompanying that? In other

words, to create the kind of sensitivity or hope to create the kind

of sensitivity, because I think what happens so often is that when

you come up with new policies like this, there are people who have

some hidden, sometimes on the surface, sometimes in-your-face

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type of feelings, and those feelings can come out. And I think, just

as Ms. Badgett said, a lot of times people are reluctant to talk

about their personal lives, and to have to make a declaration perhaps opens them up to some suffering.

Ms. WRIGHT. Yes.

Mr. CUMMINGS. I’m just wondering, as you went through this,

did you anticipate those kinds of problems, and, if anything, what

did you do in anticipation?

Ms. WRIGHT. We did anticipate and we do learn as we go as well.

It’s a combination of the two. We do training on a broad basis

about diversity in general. And one of the things we talk about is

knowing who’s in the room. Sometimes diversity is obvious, sometimes it’s not obvious. So understanding that and providing training for all of our employees on diversity and inclusion.

We also have a Diversity Advisory Council [DAC], which is made

up of representatives from each of our resource groups which represent a wide range of demographic groups. Through that council,

we get a lot of advice. We include all of the leaders of the different

demographic groups and our different employee research groups to

come together and help us figure out how we can do more to support.

And then where we have unique situations, such as a

transgender pilot, we will provide specific training and counseling

to people immediately around that area or in the areas where problems exist. We’ll go in and provide additional training and counseling for the employees in those areas to try to help them come to

terms and better understand and embrace the inclusive approach

that we are taking.

Mr. CUMMINGS. Thank you very much.

Thank you, Mr. Chairman.

Mr. LYNCH. Mr. Franklin, we’ve been guessing and trying to extrapolate through studies what the impact might be on the Federal

budget by extending these benefits. You’ve had very real experience

with CalPERS. You’ve had to grapple with the costs, you have had

to grapple with administering this, just as we are sort of thinking

about this, with the affidavits and verification.

Tell us about your experience. What did it mean to the bottom

line at CalPERS and what difficulties did you have in doing the

whole administrative piece, getting people to come forward? Was it

in an affidavit-type situation, registration-type system? How did

you handle that?

Mr. FRANKLIN. Thank you, Mr. Chairman, for the question.

Fortunately for CalPERS, our experience was not onerous. The

Secretary of State, after the legislation was passed, set up an online registration system. Additionally, made hard-copy registration

available at various Secretary of State offices.

In regards to cost in general, as I stated earlier, $19.5 million

was our total cost. However, we spent close to $6 million annually

for health care benefits. The total number of individuals or members who are enrolled in our Domestic Partner Health Benefits Program is less than a half a percentage point. So therefore, our membership in that regards was not large.

In terms of other administrative challenges, the biggest administrative challenge was managing the tax implications and looking at

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how our State Controller Office would manage those folks who

were not exempt, did not have tax exemptions. That was a large

part of the work. However, that was done in fairly short order,

given that there were other IT changes afoot at our State Controller’s Office.

But all in all, I think our approach initially was one that we

wanted to create an environment where California recognized the

diversity of our State. We wanted to ensure that as an employer,

our benefits were in alignment for all of our employees. So the actual enactment of the legislation was not problematic.

Mr. CUMMINGS [presiding]. Let me ask you something, Ms.

Wright. You know, a lot of times you hear people say they worry

there might be fraudulent activities in regards to these things. You

hear those arguments all the time. It’s quite a bit of experience you

have. It’s been quite a few years now. I’m wondering what you’ve

found. Have you had any kinds of fraudulent activities that you

know of?

Ms. WRIGHT. No significant fraudulent activity in terms of the

domestic partner benefits. We do go through and we did an audit

a few years back on all of our dependents, whether they be

spouses, dependent children of domestic partners. I suppose with

any large corporation, we found some cases but they really weren’t

a domestic partner. They were in heterosexual couples and married

couples or dependent children. So fraud has really not been, in

terms of domestic partners, a big issue for us.

And we do go through an affirmative proof of eligibility process

at the time of enrollment to verify the people are indeed eligible.

Mr. CUMMINGS. Had you all anticipated that there might be

problems with that?

Ms. WRIGHT. I don’t think we anticipated the problems would be

any greater or less with the domestic partner benefits than with

any other benefit, whether it be married couples, dependent children, or common-law spouses. So I don’t think we anticipated it

would be a bigger issue, just proportionate to any other issue.

Mr. CUMMINGS. Now, Mr. Franklin, I think I asked Ms. Wright

the question about this whole idea of morale, but we’ve also heard

today that providing this benefit is good for the employer because

it helps recruit and retain top talents. You found that to be the

case?

Mr. FRANKLIN. CalPERS is not exactly the employer. We are a

broker for the State of California. However, we do ask questions regarding recruitment, retention, absenteeism, in order to be better

performed. We really haven’t seen data either one way or the other

in terms of the retention or recruitment. However, satisfaction surveys have shown in the past that when you ask questions around

diversity and equity in the workplace, that this notion or this

premise that everyone is being treated fairly is one we get very

high marks on.

Mr. CUMMINGS. That’s interesting. As I was listening to you, Ms.

Wright, the whole idea that something can come about, and then

it’s new and a lot of people have questions about it, and then

what’s new becomes old. And then it becomes the norm. The problem is getting through the process. And I think that’s the difficulty

quite often.

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My mother used to say, ‘‘Integrity is about doing what you believe is right, and then withstanding the criticism and waiting for

everybody to catch up.’’

And so I think that the things that we are talking about today,

may be new for some. For some it hasn’t even come into existence

yet. But at some point, I think it will be the norm and maybe we’ll

move to another level.

Ms. Badgett, let me ask you one last question.

Your testimony states that you’ve worked with numerous employers on implementing domestic partner benefits. Can you tell us

what the main reason employers cite for providing these benefits,

other than costs, and what do they tell you is the main challenge

in implementing the benefits?

Ms. BADGETT. I would say that employers usually refer to two

reasons to offer these benefits. The first is the one that you hear

a lot about. It’s about competing with other companies for the best

employees.

The second one has to do with equity issues, with treating all

employees fairly. So they—in my experience—frequently cite those

roughly equally. Those are the two issues.

In terms of the implementation piece of it, I think the concern

that most employers seem to have is with regard to the taxable imputed income that they have to adjust their payroll systems to reflect. And that can sometimes be a little bit unwieldy for employers, but they only have to do it once. So it’s something that’s a onetime cost.

Mr. CUMMINGS. Did you want to say something?

We are going to take a slight break. Mr. Lynch is coming right

back, and then we’ll go to our third panel. Thank you all for your

patience and thank you all for your testimony.

[Recess.]

Mr. LYNCH. I want to thank you all for your patience and your

willingness to come before this subcommittee and help us with our

work.

I apologize for the interminable delays that have gone on today.

Some of them intentionally, unfortunately. But this is an important

enough issue that we have a full and fair hearing here, and we intend to do just that. I know there were some witnesses who have

offered testimony in writing, and we’ll accept that without objection.

But in continuance of our hearing, I want to introduce our next

panel.

Ambassador Michael Guest served as America’s first openly gay

Senate-confirmed U.S. Ambassador during his tenure to Romania

from 2001 to 2004. Mr. Guest currently serves as senior adviser to

the Council for Global Equality, which was formed in September

2008 by a coalition of human rights organizations that advocate for

a stronger and more consistent U.S. Government and corporate

voice on behalf of lesbian, gay, and transgendered human rights

protections at home and abroad.

Ms. Lorilyn ‘‘Candy’’ Holmes has been an employee with the U.S.

Government Accountability Office for 33 years in spite, believe it

or not, of her youthful appearance. She is responsible for the oversight of various agency-wide information technology programs. A

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native Washingtonian, Ms. Holmes is an ordained clergy with the

Metropolitan Community Churches, which is the world’s largest

and oldest Christian denomination, with primary affirming ministry to the lesbian and gay and transgendered community along

with family, friends, and allies.

Dr. Frank Page currently serves as the pastor of the First Baptist Church of Taylor, SC, and has previously held the position of

president of the Southern Baptist Convention. A native of Robbins,

NC, Dr. Page is the author of several books and scholarly articles

as well as a member of President Obama’s Council on Faith-Based

and Neighborhood Partnerships.

I realize that we have far exceeded the estimated limits of time

thus far. It is the custom of this subcommittee to ask all witnesses

who are here to offer testimony be sworn. Could I ask all of you

to raise, stand and raise your right hands.

[Witnesses sworn.]

Mr. LYNCH. Let the record indicate that all of the witnesses have

answered in the affirmative.

I will begin by offering 5 minutes for an opening statement to

Ambassador Guest.

STATEMENTS OF AMBASSADOR (RET.) MICHAEL GUEST,

FORMER CAREER FOREIGN SERVICE OFFICER; LORILYN

HOLMES, CURRENT FEDERAL EMPLOYEE, REVEREND, METROPOLITAN COMMUNITY CHURCHES; AND FRANK PAGE,

PASTOR, FIRST BAPTIST CHURCH OF TAYLOR, SC, PRESIDENT, SOUTHERN BAPTIST CONVENTION 2006

STATEMENT OF MICHAEL GUEST

Mr. GUEST. Mr. Chairman, thank you for inviting me to share

my perspective on this bill.

For more than half of my life, I served our country as a career

Foreign Service Officer. I was honored to represent our country,

and I am proud of my accomplishments, but in December 2007, I

ended my career after having sought, without success, to amend

policies that discriminate against gay and lesbian Foreign Service

personnel.

While sharing the same service obligation as my colleagues, my

family had no benefits. My partner had sacrificed his career to support me in serving the country that we both love and in return was

treated as a second-class citizen in our overseas postings. And I

couldn’t reconcile how an administration so consumed with the

fight against terrorism would knowingly put my partner’s life at

risk and indeed put the security and effectiveness of our embassy

communities at risk to policies that base protections needlessly on

marriage, an option that, of course, is unavailable to us.

Mr. Chairman, the State Department’s specific inequalities that

I challenged have framed my perspective, and those are offered in

detail in my written testimony.

As examples, the Department would not train my partner in how

to recognize a terrorist threat or a counterintelligence trap, thus

putting his life and indeed U.S. interests at risk. He had no guarantee of being evacuated whether for life-threatening medical reasons or to escape political violence that might close an embassy.

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The Department would not train him in the informal community

leadership roles that he, as my partner, was, in fact, expected to

fill. Unlike spouses, he had no diplomatic protections nor could he

compete for jobs that the embassy needed to fill, regardless of his

qualifications; and while the Department paid to transport pets to

and from posts, it wouldn’t pay my partner’s airfare as if the government for which he sacrificed so much considered him to be less

important than a dog.

Now, I trust you can see the ironies. As a diplomat, I advanced

American principles of equality, fair play, and respect for diversity

in the countries to which I was posted; and yet the very agency

that charged me to represent those policies showed no respect for

those principles and how it treated those of us who are gay or lesbian. Nor did that agency that drills crisis management, diversity

awareness, and leadership skills into all employees show any concern at all on the issues of health, safety, morale, and effectiveness

that stem from these discriminatory policies.

Now, Mr. Chairman, I still believe that America is still the greatest country on Earth, and I’m proud of the time that I spent in the

State Department, but my experience in seeking redress of these

inequalities made me realize that this is not the America I believed

in when I came to Washington some 30 years ago to work, in fact,

as an intern here on Capitol Hill.

You see, the issue we are here to address is not about personal

belief, and it is not the definition of marriage. Those are red herrings. It’s workplace fairness, and it’s civil rights. Somehow we, as

a country, have allowed the term ‘‘equality,’’ which is an absolute

term, to be redefined to mean more rights for some individuals and

fewer for others.

LGBT Americans are not demanding so-called special rights, as

some claim, through this or any other bill. How is it that we are

debating even today whether citizens who are gay should enjoy the

same fundamental protections as others that we work with, who

live in our communities, work in offices and factories, and, yes,

share a fellowship in our place of worship.

And, in that regard, I want to mention, when I was a student

at Furman University many years ago, I attended First Baptist

Church in Taylor, SC, which is represented here by my fellow panelist.

Mr. Chairman, I was reluctant to relive before this committee

the most painful chapter of my life, the decision to leave a career

that I love. But, for me, this is a matter of closure. When President

Obama took his action on the 17th of last month to redress the

issues at the State Department, I took my partner’s hand and

quietly apologized to him that this action couldn’t have come sooner for his sake.

And now the spotlight is on Congress. The bill before you addressees a range of benefit that remains out of reach for Federal

employees for same-sex partners. These have been detailed by

other panelists. They’re as critical to our families as they are to us,

and I respectfully ask that you close this gap.

You’ve heard many solid arguments for this bill based on things

like worker retention and budgetary impact and comparisons to

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corporate policies, but I ask you to support this legislation for different reasons.

First, principle is at stake. Equality, fair mindedness, and respect for diversity are at the heart of America’s identity. This bill

would honor those principles and bring us closer to fulfilling those

ideals.

But, second, this bill is about people. Those of us who are gay

have the same aspirations, the same hopes, and the same needs as

any of you. We have families that we love, that we need to take

care of, just as you do. We are humans like you. We love and support our country like you do. And we ask only to be treated fairly

and equally and that our families be provided with the same protections and benefits that are provided to yours.

I have been in Washington almost three decades, and I’ve heard

over and over that policy issues related to gay and lesbian Americans are just too hard to tackle and that other agendas must come

first and that the time is not now. This issue is hard only because

we make it so. And surely we can come together as a country and

as a people to do the right thing for families who have yet to recognize and realize the equality to which we, as citizens, are entitled.

I thank you, Mr. Chairman.

[The prepared statement of Mr. Guest follows:]

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Mr. LYNCH. Ms. Holmes, you are now recognized for 5 minutes.

STATEMENT OF LORILYN HOLMES

Ms. HOLMES. Good evening, Chairman Lynch. I appreciate this

opportunity to testify before you in favor of domestic partner benefits for Federal employees. I appreciate that my partner and a portion of my family are also present.

It’s been a long time since I have visited the Rayburn Building

where my father worked years ago as a laborer serving in these

same hearing rooms. He would take me by the hand and walk me

through these very halls of Congress explaining this is where decisions are made, Candy, that impact us all. I would have never

imagined I would return to be speaking before you today before you

now on a topic of such importance to me and to countless others.

I believe my father is looking upon us from celestial heights, proud

that I am here. Thank you for convening this hearing.

My name is Candy Holmes, and I am a Federal employee, a manager with the Government Accountability Office in Washington,

DC. I have worked at the GAO for 33 years—absolutely 33 years.

I am here to speak not only about my story but to express my

views on the merits and the need for this legislation, that it ensures that lesbian and gay Federal employees and our same-gender

partners receive the same benefits that are granted to our oppositegender married Federal employees.

I am not here speaking as a representative of the GAO. I am testifying on my own behalf.

It is also important for me to share with you that I am lesbian,

and I am Christian, and for the last 20 years I have been a part

of the Metropolitan Community Churches, and I am an ordained

clergywoman. I’m in a same-gender relationship with the Reverend

Darlene Garner. We are in a loving, committed relationship in

which we worry about our children, take pride in our grand and

great grandchildren, make a home together, and plan our retirement together.

Darlene is also ordained clergy with the MCC and serves as part

of the denomination spiritual leadership. Because she is an employee of MCC, she relies on limited employee benefits and a retirement plan that will provide less than $120 a month when she retires.

There are many families like ours. The difference is this. The

government to which I have devoted 33 years of my working life

will not honor my partnership because I love another women, not

a man. There are many voices and stories you will not have a

chance to hear, so I share from our collective experiences of unfair

treatment and unjust Federal policies.

I entered the Federal Government in 1977. And in that day, it

was enough that I was also dealing with the dynamics of being African American and a woman in the Federal workplace. So I was

a closeted lesbian. I worked in utter fear that I would be found out

and suffer the consequences. Like many others, I chose to be silent;

and that rendered my life invisible.

Recently, I came to a tipping point in my life. The decision in

California to uphold Proposition 8, the ban on gay marriage, sent

me a stark, clear, yet unbelievable message that discrimination can

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be legalized again. I was outraged. So I am here to bear witness

openly as a lesbian Federal employee who seeks fair and equal

treatment.

Federal employees who are married to someone of the opposite

gender are automatic beneficiaries of Federal benefits. My family

and others like us are automatically denied. It is disturbing and

demoralizing to be treated as a second-class citizen and worker and

told that I cannot enjoy the benefits of my labor on an equal footing

with my opposite-gender counterparts.

Being treated as a second-class citizen is eerily familiar to me.

Same church, just a different pew. There was a time in this country when being treated differently because of the color of my skin

was simply the way it was. Being treated so unfairly now because

of who I love is more than a matter of fairness; it is an issue of

civil rights.

My partner and I are preparing for our retirement years now.

Unless this act is adopted now, the economic impact of my retirement on my family will be dire, as though I had never dedicated

35 years of my life to my career as a Federal employee.

No opposite-gender married couple will ever have to think about

this, ever have to even think about such a thing because they had

been privileged by right of legislation. Government should work for

us, not against us.

In summary, Chairman Lynch, the family benefits in question

are a significant portion of employee compensation because gay and

lesbian Federal employees do not receive equal pay for our equal

contributions. It is clear that this act would be a first step in the

right direction toward eliminating discrimination and compensation.

As I conclude, I would like to thank the cosponsors from both the

House and the Senate for their ongoing efforts to move this act to

this point and for linking their hands with mine and others on the

arc of history to bend it once more toward justice.

During these days of uncertainty, I remind us all of the words

of President Obama from his inaugural address: The time has come

to reaffirm our enduring spirit to choose our better history, to carry

forth that precious gift, that mobile idea passed on from generation

to generation, the God-given promise that all are equal, all are

free, and all deserve a chance to pursue their full measure of happiness, including Federal employees like me. There is no wrong

time to do the right thing.

Thank you and God bless. I will be happy to take any questions

you may have.

[The prepared statement of Ms. Holmes follows:]

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Mr. LYNCH. Dr. Page, we are thankful that you stayed. You are

now recognized for 5 minutes.

STATEMENT OF FRANK PAGE

Mr. PAGE. Thank you, Mr. Chairman. I do appreciate the opportunity to address this committee, though singular you are at this

particular moment.

I’ve heard much talk today in the 6 hours plus that I have sat

here about diversity, equality, fairness, but I have to note for the

record in the interest of fairness, I’m the only person asked to

speak as a witness today who speaks in opposition to this proposed

bill, H.R. 2517.

I have heard a great deal of verbiage today about how this would

make the government on equal footing regarding recruitment and

retention. I’ve heard many things about fairness; I understand that

and I hear that in my heart. But I do believe this is a part of a

social agenda, and I do speak in opposition to H.R. 2517, primarily

because of two reasons. One is moral; one is financial.

I do believe that it has been the perennial role of the government

to support the institutions of society such as marriage; and, in this

instance, I think this is taking a direct role in opposition to a traditional definition in support of that which marriage has traditionally been.

I believe that the government has always stood to support, not

to discourage. I do believe in moral absolutes. Those are words

we’ve not heard today. Those are words that are not popular in our

culture today. But I do say that I do believe there are moral absolutes.

I was excited to hear Ambassador Guest say that he had attended our church. I would love for him to attend again, and he

would find a place of love and welcome. But he will also hear again

biblical truth that marriage is one man, one woman, freely and

timely committed to each other as companions for life. We believe

that the government ought to support the role of marriage in our

society.

We also, as unpopular as it is today, believe that this is a part

of a social agenda that continues to seek normalization of the homosexual lifestyle that I, and I believe many other evangelicals, not

all, certainly oppose. We care for people, we do love people, but we

are painted as if we are hateful, caricatured as mean spirited. We

are not, but we do believe there are absolutes, and we stand by

them.

This bill promises equal treatment, but I believe that it has created an elitism. For example, it’s been pointed out today that heterosexual couples, opposite-gender couples would not be allowed to

have the same benefits. It’s been pointed out, well, they can get

married. Well, there are same-sex couples that do not wish to get

married. There are opposite-sex couples that do not wish to get

married for many reasons. This sets aside same-sex couples as an

elite class, and those same benefits would be denied to oppositesexed couples who choose not to marry.

So I do believe that this is creating a discriminating bill. It is a

discriminating bill; and, again, I think that is improper.

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Do I personally oppose same-sex couples who live together without marriage? Yes. Do I oppose opposite-sex couples who live together? Yes. We do believe that is improper. For moral reasons but

also financial reasons.

I do believe that this creates an opportunity for abuse. I’ve heard

the promises today of supposed safeguards. But I’ve got to tell you,

Mr. Chairman, that I, like many Americans, don’t trust the government’s ability to guard itself in its policy real well, and I hope that

doesn’t come as a great surprise to you. But I have deep concerns

about the moral implications about this bill, also about the financial possibilities. I do encourage that this bill will be defeated and

that we will see the government continue in some small form to

lead corporations and society in the protection of traditional marriage.

Thank you for listening to my comments.

Mr. LYNCH. Let me begin with Ambassador Guest.

First of all, thank you for your service to our country. I appreciate that greatly. I regret that the situation existed that treated

you in a way that you felt that you could not continue in our service, because I think we have, lost out. We have suffered not only

because of your own decision, but I’m sure that there are thousands of employees that have probably made the same decision

over time as a result of this policy.

Let me ask you. You also, in your last few years of service, began

to advocate on behalf of changing the laws and changing the regulations as they apply to Federal employees. We are looking at a

proposal today offered by Ms. Baldwin subject to some technical

amendments being suggested by the Office of Personnel Management. But, basically, what they’re suggesting is that, in order to extend these benefits, they will require gay and lesbian employees to

file a sworn affidavit under the penalties of perjury that they have

a long-term commitment, solid commitment, in some cases, marriages recognized in other States, and that they want the benefits

that they receive as employees to be extended to their spouse, to

their domestic partners.

The idea of requiring employees to come forward requiring to

sign an affidavit, especially in the Federal Government context, can

be somewhat intimidating. And I just want—I wonder how you see

that, the administration of that practice, affecting the utilization

rate among gay and lesbian employees in the Federal workplace.

Mr. GUEST. Thank you for the question, Mr. Chairman.

I don’t think that this is an onerous requirement, to be honest.

Had we been speaking 20 years ago, things might have been different. But I think our society has evolved in a way where people

are much more open about who they are and more honest. Honesty

is a value that I think is very, very important in life; and I think

many people now are much more honest.

I, frankly, don’t know that it is entirely necessary. I certainly believe that Federal employees who have security clearances would

never risk their security clearance on the promise of a false affidavit. I don’t think that people would be willing to jeopardize their

employment, also. But I do believe that, in the interest of making

sure that this process works as smoothly and effectively as possible

and that there is no fraud, that having this sort of an affidavit

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would not be objected to by any member of the Federal Government that I know.

Mr. LYNCH. Ms. Holmes, you had a perspective as a parent as

well as a partner in this. With over 33 years going through—you’ve

got a compelling story, and it gives great power to your testimony

today. How has that affected your extended family life in dealing

with this policy over the years? How have your children been affected by being, I think, unfairly treated by a policy that obviously

distinguishes between heterosexual families and homosexual families?

Ms. HOLMES. Well, Chairman Lynch, in our case, my partner and

I, when we came together, the children were already grown. They

were young adults, so we were not impacted by this—not being included or not being able to use the health benefits.

But that being said, such an exclusion still has a heavy impact

on my colleagues. And I can share from their experiences in blending families and with our children, our partners, we share parenting responsibilities and love all of the children without distinction.

However, the Federal Government does not consider the children

of our same-sex partners as being our children.

I know of many same-sex couples who live in such a blended

family situation and coverage under the Federal employees health

benefit program would not cover them. It is not available to the

children of our partners. When the children are ill, the birth or

adopted children of Federal employees can be treated by a private

physician. If the partner is a stay-at-home parent, or for whatever

reason is uninsured, the partner’s ill child sometimes must go without health care or it must, at most, turn to public services for

health care.

Mr. LYNCH. Dr. Page, a number of the members of previous panels, in response to questions by the ranking member, Mr. Chaffetz

of Utah, there was an exchange here on several occasions about the

idea that, as you stated in your testimony, single heterosexual couples living together were being discriminated against under this

bill because they would not be afforded the same rights that gay

couples would be afforded as it’s currently drafted. And the response from some of the witnesses, several of them, was that the

heterosexual couples have the opportunity to marry and upon that

marriage, unquestionably, they would be afforded the benefits.

Nothing further needs to be done.

And you have made the same argument that heterosexual couples are being discriminated against. How do you reconcile that

fact that one couple can go ahead and get married and they get the

benefits just like that and the other one, the gay couple or lesbian

couple, can achieve that same result?

Mr. PAGE. Well, I mean that is a separate issue. The issue of

marriage is very clear, that under Federal law right now they are

not married and they cannot get married. That’s a moot point to

me. Because that is not an even a possibility at this point, as far

as Federal law.

But what I was simply saying is this: there are many same-sex

couples that simply do not choose to get married for whatever reason. There are many opposite-sex couples that choose not to get

married. But there are many people, for example, who are in relaVerDate 11-MAY-2000 15:03 Oct 21, 2009 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6633 U:\DOCS\52628.TXT KATIE PsN: KATIE
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tionships or friendship, may even live together, elderly persons,

young persons, whatever the age might be. Why should they be discriminated against, that they’re not going to be allowed to get the

same benefits that a same-sex couple would get?

I’m simply saying it’s discriminatory purposely because the only

protected clause in this particular piece of legislation are same-sex

couples, automatically discriminating against those who are opposite sex. They choose not to get married. That’s not my business.

That’s not your business. That’s their business. But the government is automatically discriminating against them.

Mr. LYNCH. But it is the operation of law that a gay couple cannot get married, even though they have a long-term, committed relationship.

Mr. PAGE. And that is true.

Mr. LYNCH. And it’s the operation of law that, you know, heterosexual couples can.

Mr. PAGE. But I’m not arguing what’s legal and what’s not legal.

I’m arguing what is discriminatory and what is not discriminatory.

Mr. LYNCH. Is that connected?

Mr. PAGE. Yes, sir.

Mr. LYNCH. I understand, but this is a legislative body.

Mr. PAGE. Yes, sir.

Mr. LYNCH. I am a lawmaker, so we’ve got to talk about the law.

Mr. PAGE. All right. Well, then let’s respect the law that is currently on the books that says these persons are not married.

Mr. LYNCH. The law is not a static entity. We’re here because a

very respected member of the legislature has come forward with a

proposal to change the law, to extend the benefits. And I respect

your position. I don’t——

Mr. PAGE. No, sir, I don’t think you do, but thank you for saying

that.

Mr. LYNCH. No, no, I do respect you. However, we are trying to

grapple with the issue of, in this case, as presented by some, equal

work for equal pay or equal pay for equal work. And I think that

there is a valid case being made when you do a comparative assessment of how each person is treated, and I think there is a fair

statement that it’s drastically different for Ambassador Guest in

his situation versus some of my other heterosexual employees and

the benefits that have been afforded to them. You know, at least

from an equal protection standpoint I think there’s fair argument

that’s been put forward here.

Let me just say this. There’s no way I’m going to cover the whole

landscape of questions that need to be asked this evening, but what

I would like to do is to give each of you several minutes. If there

are aspects of this debate today in the three panels that have not

been covered, if there are parts of this debate that you’d like to emphasize or amplify or just summarize, that you think that a message that has not been heard here today, then I want to give you

full opportunity to do that.

Dr. Page, I’d like to afford you the first 3 minutes, if you’d like

to. As I said, just put some messages on the record about your feelings on this and your positions on this. You’re recognized for 3 minutes.

Mr. PAGE. Thank you, Mr. Chairman.

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I do recognize that I rise in favor of a minority opinion. It’s not

very popular. It’s not politically correct. But I do stand and say

that the government should be in the process of encouraging the

traditional marriage that has stood for many, many hundreds of

years as that way that culture is best protected, and I think the

government ought to be encouraging, not discouraging, and I think

this act discourages.

Thank you, sir.

Mr. LYNCH. Thank you, sir.

Ms. Holmes, you’re recognized for 3 minutes.

Ms. HOLMES. Thank you, Chairman.

I want to start with saying the government is not a religious institution. For the Federal Government to afford all employees equal

treatment does not require anyone to change their values or beliefs.

It requires only that the Federal Government honor the legal doctrine of separation of church and State.

And on a real personal note, it has been demoralizing to go to

work each day knowing that I must endure the indignity of not receiving equal pay for my equal work. The spirit of the Declaration

of Independence is that all people have the inalienable right to life,

liberty, and the pursuit of happiness. Yet, being a lesbian and employed by the Federal Government has meant that I can’t or

haven’t been allowed to exercise that basic American right for myself and my family.

Thank you.

Mr. LYNCH. Thank you.

Ambassador Guest, you’re recognized for 3 minutes.

Mr. GUEST. Mr. Chairman, the three of us who are sitting before

you now are all Christians. We all are men and women of faith and

belief, but we are also all Americans. America is not, as my colleague has said, a theocratic society. This country was founded on

certain principles, and among them were equality, among them

were fair play, fairness, and justice. And these are principles that

we represent in political discourse in this body and principles that

we represent abroad when we are speaking about what America

stands for, and those principles are denied by the law the way it

now exists.

You’ve pointed out that law is not static, that law changes both

to deal with changing times, and from this perspective I would say

it’s not from changing times. It’s to right wrongs. It’s to right injustices.

I find the argument that somehow this bill is discriminatory

sheer sophistry. We would not be sitting here today having this discussion about this bill if one of two situations existed, one being

that we, gay and lesbian Americans, were allowed access to marriage because all of these benefits that are attached to employment

for the Federal Government are attached through the institution of

marriage. The second circumstance would be if the government recognized that workplace benefits and protections and fairness

should not be attached through marriage, that marriage should not

be the fulcrum on which these benefits are offered, that there

needs to be a principle established of equal rights for equal representation and equal service.

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And that’s what this really is about. That’s what this bill is

about, and I would urge that the committee consider it in that

light.

Thank you.

Mr. LYNCH. Thank you.

As you know, we had several hearings going on at the same time

today. It’s the way it works around here. It’s not the best way, but

it’s the way it works. So what I’m going to do is I’m going to leave

the record open for 5 days. That will also, you know, based on your

testimony today will also give the other members of this committee

an opportunity to submit questions to you in writing; and you will

have 5 days to return those answers to the committee if necessary.

But I want to thank you each. I really do appreciate all the testimony that’s been offered to this committee. I thank you for your

willingness, and it took courage for each of you to step forward and

offer testimony to this committee under oath, and we appreciate

that, and we thank you, and we bid you good evening.

This hearing is now adjourned.

[Whereupon, at 8:08 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Elijah E. Cummings follows:]

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