Federal Benefits and the Same-Sex Partners of Federal Employees (Prior to the 2013 United States v. Windsor Decision)
Released: 2013-02-28T00:00:00

Introduction

In 1996, Congress passed the Defense of Marriage Act (DOMA, P.L. 104-199 ) "[t]o define and protect the institution of marriage." DOMA (1) allows states to refuse to recognize same-sex marriages or partnerships and (2) limits the recognition of these same-sex partnerships for purposes of any act of Congress or by any federal bureau or agency. As codified, DOMA has three sections. The first provides the bill's name, the second section allows states to determine whether to recognize same-sex marriage, and the third defines the terms marriage and spouse for the purposes of federal enactments. Specifically, Section 3 of DOMA says the following:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

The federal government provides a variety of benefits to its workforce, including health care, life insurance, pensions, and paid time off for vacation and sick leave. Federal employees are permitted by law to extend certain health, long-term care, and other benefits to their spouses. DOMA prohibits the distribution of these spousal benefits to same-sex partners. The federal government, however, provides other benefits to federal employees that may be extended to those who are associated with a federal employee, but who are not necessarily the employee's spouse. In some cases, these benefits have been extended to the partners of federal employees who are in same-sex relationships.

On June 17, 2009, President Obama issued a memorandum directing executive agencies to examine ways to extend benefits to federal employees in same-sex domestic partnerships or same-sex marriages within the authority of existing law. On July 10, 2009, Office of Personnel Management (OPM) Director John Berry issued a memorandum directing all executive-branch agencies to review and report on the benefits offered to opposite-sex partners—whether married or not—of federal employees. OPM and the Department of Justice (DOJ) reviewed these reports and suggested to President Obama actions that would extend some benefits to the same-sex partners of federal employees.

On June 2, 2010, President Obama released a second memorandum that extended specific benefits and perquisites to the same-sex partners of federal employees. For certain benefits, the term spouse is either not found in the benefit's authorizing language or the authorizing language widens the scope of eligibility. The benefits that were extended by the memorandum are those whose authorizing statutes do not use the term spouse to define or limit potential recipients of the benefit. The Administration argues that its actions comply with all federal laws, including DOMA. Among other benefits, the memorandum extended certain childcare and sick leave benefits that had previously only been available to opposite-sex spouses—including the authority to take up to 24 hours of unpaid leave when a same-sex partner or a partner's child is ill. The newly extended benefits were made available upon the second memorandum's release.

In the 112 th Congress, two bills were introduced that, if enacted, would have permitted a federal employee to provide insurance, travel, and other benefits to his or her same-sex partner. On November 18, 2011, Senator Joseph Lieberman introduced S. 1910 , the Domestic Partnership Benefits and Obligations Act of 2011, and Representative Tammy Baldwin introduced a companion bill, H.R. 3485 . On May 16, 2012, S. 1910 was ordered to be reported favorably from the Committee on Homeland Security and Governmental Affairs. H.R. 3485 was referred to the House Oversight and Government Reform Committee's Subcommittee on Workforce Protections, the House Education and the Workforce's Subcommittee on Workforce Protections, the House Judiciary's Subcommittee on Courts, Commercial and Administrative Law, and the Committee on House Administration. No further action was taken on the bill.

Congress may elect to examine, prohibit, or enact into law Administration initiatives that made some benefits available to same-sex partners. Congress has the authority to determine if some, all, or none of the benefits that are available to the opposite-sex spouses of federal employees should be made available to the same-sex partners of federal employees.

The Defense of Marriage Act and Federal Benefits

The federal government provides a variety of benefits to federal civilian and military employees and retirees. Among these benefits are health insurance; enhanced dental and vision benefits; retirement and disability benefits and plans; survivor benefits; family, medical, and emergency leave; and reimbursement of relocation costs. Various federal laws and regulations determine who is eligible to receive these benefits. A federal employee who is married to someone of the opposite gender can, pursuant to federal law, extend many of these benefits to his or her spouse.

DOMA affects the application of benefits to the spouses and partners of federal employees. DOMA defines marriage explicitly as "only a legal union between one man and one woman as husband and wife." DOMA defines spouse as "a person of the opposite sex who is a husband or a wife." Pursuant to DOMA, these definitions are to be used when "determining the meaning of any Act of Congress." As such, DOMA prohibits the extension of any federal spousal benefit to the same-sex partners of federal employees. In addition, specific laws or regulations, like the regulations for the Family Medical Leave Act, explicitly define spouse as a member of the opposite sex.

Report language from the House Committee on the Judiciary in support of H.R. 3396 (104 th Congress; later enacted as DOMA) stated in its introduction that DOMA sought to protect states' rights to determine whether same-sex couples could marry and be eligible for benefits. DOMA, the report argued, anticipated certain legal questions that could arise from this arrangement. The report said the following:

With regard to federal law, a decision by one State to authorize same-sex "marriage" would raise the issue of whether such couples are entitled to federal benefits that depend on marital status. H.R. 3396 anticipates these complicated questions by laying down clear rules to guide their resolution, and it does so in a manner that preserves each State's ability to decide the underlying policy issue however it chooses.

According to report language, the federal government had four specific interests in mind when drafting DOMA:

defending and nurturing the institution of traditional, heterosexual marriage; defending traditional notions of morality; protecting state sovereignty and democratic self-governance; and preserving scarce government resources.

The latter governmental interest was described in greater detail later in the report:

Government currently provides an array of material and other benefits to married couples in an effort to promote, protect, and prefer the institution of marriage. While the Committee has not undertaken an exhaustive examination of those benefits, it is clear that they do impose certain fiscal obligations on the federal government. For example, survivorship benefits paid to the surviving spouse of a veteran of the Armed Services plainly cost the federal government money.

If Hawaii (or some other State) were to permit homosexuals to "marry," these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual "marriages" on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex "marriages" will thus preserve scarce government resources, surely a legitimate government purpose.

Executive Branch Actions to Extend Benefits to Same-Sex Partners of Federal Employees

Some benefits to federal employees are extended specifically to the spouse of the federal employee, while the laws and regulations governing other benefits may not explicitly use the term spouse. The Obama Administration has extended to the same-sex partners of federal employees some benefits that do not have the term spouse in their governing authorities. The Administration has argued that they have done so within the parameters of DOMA. Some organizations, however, including the non-profit Family Research Council, have argued that the extension of these benefits is both costly and could undermine the federal definition of marriage.

President Obama has issued two memoranda that address the eligibility of same-sex domestic partners for federal employee benefits. The first memorandum directed agencies to determine which benefits could be offered within the parameters of existing law. The second memorandum required agencies to extend specific benefits to the domestic partners of federal employees.

The First Memorandum

On June 17, 2009, President Obama released a memorandum directing all executive departments and agencies to review and evaluate their existing employee benefits to determine "which may legally be extended to same-sex partners."

In his public statement accompanying the memorandum's release, he said that his Administration "was not authorized by existing Federal law to provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples." The President said many private companies already offer such benefits to same-sex domestic partners, which "helps them compete for and retain the brightest and most talented employees. The Federal Government is at a disadvantage on that score right now, and change is long overdue."

The memorandum required each executive department and agency to provide to the Director of OPM a report that included "a review of the benefits provided by their respective departments and agencies" in order "to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees." Agencies were given 90 days to complete their reviews. In addition, the memorandum instructed OPM to issue guidance regarding compliance with anti-discrimination policies in the hiring of federal employees (5 U.S.C. §2302(b)(10)). The memorandum was explicit in stating that all extensions of benefits and protections be "consistent with Federal law." No extension of benefits, therefore, could violate DOMA or any other law prohibiting the extension of benefits to same-sex domestic partners. The agency reports were due on September 15, 2009. OPM reviewed these reports and worked with the Department of Justice (DOJ) to recommend the extension of several federal benefits to the partners of federal employees in same-sex relationships.

The Second Memorandum

On June 2, 2010, President Obama released a memorandum that detailed the benefits OPM and DOJ recommended for extension to same-sex partners. The memorandum stated that children of same-sex partners fall "within the definition of 'child' for purposes of [f]ederal child-care subsidies, and, where appropriate, for child-care services." Additionally, the memorandum required extension of the following benefits:

A same-sex partner will be deemed to have an insurable interest in a federal employee with respect to survivor annuities under the Civil Service Retirement System and Federal Employee Retirement System (5 U.S.C. §§8339 and 8420). The employee will no longer have to file an affidavit with OPM certifying that his or her domestic partner is financially dependent on the employee. A federal employee in a same-sex partnership is now eligible for 24 hours of unpaid leave when the child of a same-sex partner is dismissed early from school, a routine medical purpose, or the same-sex partner or his or her child needs medical care. The same-sex partner of a federal employee is now eligible to collect travel and relocation payments incurred as a result of a partner's new job or reassignment. The benefit is also extended to a same-sex partner's children. A same-sex partner and his or her children are now eligible to join a credit union, use a fitness facility, or participate in planning and counseling services that are currently extended to an opposite-sex spouse and family members.

The memorandum also required OPM to report annually to the President "on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented." Pursuant to the memorandum, the benefit extensions were effective immediately. Media reports noted "lukewarm" reaction from gay rights groups to the extension of "marginal" benefits.

Survey of Particular Benefits

Both federal employees and federal annuitants have access to certain benefits. Some of these benefits can be transferred to spouses or other designated persons. In some cases, a federal employee's spouse may be explicitly authorized to receive a federal benefit. In other cases, a federal employee may designate a particular person to receive a federal benefit.

This section reviews benefits that cannot be extended to same-sex partners, others that are available to same-sex partners, and still others that have been made available to same-sex partners by the Obama Administration. These benefits have been mentioned in both current and previous legislation and executive-branch memoranda. Table 1 summarizes some of the benefits provided to federal employees and their spouses. It also provides information on whether these benefits are available to the same-sex partners of federal employees.

Benefits Expressly Provided to Spouses

Health Benefits

The Federal Employees Health Benefits Program (FEHBP; 5 U.S.C. §8909; 5 C.F.R. §890) offers health benefits to qualifying federal employees and encompasses nearly 300 different health care plans. As with health care plans in the private sector, FEHBP provides benefits to enrollees for costs associated with a health checkup, an injury, or an illness. Health care costs are shared between the federal government and the enrollee. According to a 2010 study, the federal government pays, on average, 72% of a health plan's premium and 28% of the premium's cost is paid by the employee.

Pursuant to the Code of Federal Regulations , certain family members of a federal employee are eligible to enroll in FEHBP. Among those eligible are an employee's spouse and children under age 22.

Neither same-sex domestic partners of federal employees nor the partners' children are eligible to enroll in FEHBP. OPM's website states the following:

Same sex partners are not eligible family members. The law defines family members as a spouse and an unmarried dependent child under age 22. P.L. 104-199 , Defense of Marriage Act, states, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Dental and Vision Benefits

Federal employees may choose to enroll in the Federal Dental and Vision Program (FEDVIP; P.L. 108-496 ; 5 U.S.C. Chapter 89A and 5 U.S.C. Chapter 89B), which provides vision and dental benefits in addition to the limited coverage provided by FEHBP. Unlike FEHBP, however, the enrollee pays all benefit premium costs—the federal government does not contribute to the benefit's premiums.

Like federal health benefits, federal employees may extend FEDVIP benefits to family members. Eligibility rules are identical to FEHBP's regulations.

Both the Enhanced Dental Benefits program (5 U.S.C. §8951) and the Enhanced Vision Benefits program (5 U.S.C. §8981) are not extended to the same-sex partners of federal employees who are eligible for the benefit. OPM states on its website that "[t]he rules for family members' eligibility are the same as they are for the" FEHBP for both the dental and the vision programs.

Federal Employment Compensation Act Benefits

A federal employee is eligible for up to $100,000 in compensation if he or she is disabled while performing his or her job, pursuant to the Federal Employment Compensation Act (FECA; 5 U.S.C. Chapter §§8101-8193). If an employee is killed while performing his or her job, 5 U.S.C. §8102a requires that payment go to the deceased employee's spouse or children. The federal employee may also designate his or her parents or siblings as the compensation recipient. The same-sex partner of a federal employee is not listed in statute among the eligible recipients of such compensation.

Federal Benefits Provided to Spouses and Others

As noted earlier, for certain benefits, the term spouse is either not found in the benefit's authorizing language or the authorizing language widens the scope of eligibility. This section describes federal benefits that are either explicitly extended to same-sex partners of federal employees or those that allow federal employees to designate same-sex partners as beneficiaries.

Family and Medical Leave Act

Pursuant to the Family and Medical Leave Act (FMLA; P.L. 103-3 ; 5 U.S.C. Chapter 63), certain federal employees are entitled to use up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:

the birth of a child of the employee and follow-up care related to that birth; the adoption of a child by the employee or placement of a foster child with the employee; the care of an employee's ailing spouse, child, or parent; an illness or condition of the employee that renders him or her unable to work; or the spouse, child, or parent of the employee is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces.

The 12 weeks of unpaid leave may be used intermittently throughout the year, when the employee meets statutory and regulatory requirements of FMLA.

FMLA regulations (5 C.F.R. §630.1201) define spouse explicitly as "an individual who is a husband or wife pursuant to a marriage that is a legal union between one man and one woman, including common law marriage between one man and one woman in States where it is recognized." A federal employee, therefore, may not use leave acquired pursuant to FMLA to care for an ailing same-sex domestic partner.

A June 22, 2010, Department of Labor (DOL) Administrator Interpretation of FMLA interpreted the act's definition of "son or daughter" to permit an employee in a same-sex partnership to use FMLA-approved leave to care for the child of his or her same-sex partner. Prior to the Administrator Interpretation, a federal employee was not permitted to use leave acquired pursuant to FMLA to care for the ailing child of a same-sex domestic partner, unless the employee had legally adopted the child. The DOL interpretation applies to all employees in both the public and private sectors.

Other Types of Leave

On June 14, 2010, OPM released a final rule clarifying the definitions of family member and immediate relative as they are used in determining eligibility for certain kinds of leave—including sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer. The regulation formerly had defined "family member" as any one of the following:

spouse, and parents thereof; children, including adopted children and spouses thereof; parents; brothers and sisters; and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Pursuant to the new regulation, the definition of family member now also includes

grandparents and grandchildren, and spouses thereof; and a domestic partner and parents thereof, including the domestic partner of any of the relatives listed above.

The new regulation also modified existing or added new definitions to criteria that determine if same-sex partners would be eligible for certain leave benefits. For example, the terms committed relationship , domestic partner , parent , and son or daughter were added into the Code of Federal Regulations. The modified regulation applies to leave benefits for both same-sex and opposite-sex partnerships, and includes but is not limited to partnerships recognized by a state, territory, or district government. The regulation became effective June 14, 2010. The regulation does not appear to affect FMLA.

Life Insurance

In some cases, a federal employee may not choose to enroll a spouse or same-sex partner in a federal benefit program. Instead, the employee may designate any individual as the recipient of a federal benefit. Pursuant to 5 U.S.C. Chapter 87, most federal employees, including part-time employees, are automatically enrolled in the Federal Employees' Group Life Insurance (FEGLI) program, which is administered by Metropolitan Life Insurance Company. Federal employees pay two-thirds of their life-insurance premium, and the federal government pays the remaining third. A federal employee may designate anyone, including a same-sex partner, as their life insurance beneficiary by filing an SF 2823 form. A federal employee's spouse would automatically receive the federal benefit if he or she did not specifically designate a different beneficiary, pursuant to federal law (5 U.S.C. §8705(a)).

In 5 U.S.C. §8701, the section of U.S. Code that defines the terms used on statutes that govern federal life insurance, family member includes the phrase spouse of the individual when listing eligible beneficiaries. Title 5 U.S.C. §8705, the section of code that delineates the order of preference in which life insurance benefits would be distributed in the event of a federal employee's death, says life insurance benefits would first be distributed to any person or entity that was selected by the employee using the SF 2823 form. If no form was completed, the benefit would then go to "the widow or widower of the employee." It would appear, therefore, that DOMA would preclude same-sex domestic partners from qualifying as a widow or widower.

Federal Employee Pensions and Survivor Benefits

Federal employees with permanent appointments are eligible for retirement and disability benefits under either CSRS or FERS. Employees hired before January 1, 1984, are covered by CSRS unless they chose to switch to FERS during open seasons held in 1987 and 1998. Most federal employees initially hired into permanent federal employment on or after January 1, 1984, are covered by FERS. CSRS and FERS provide (1) a defined benefit pension plan, which pays a monthly dollar amount for the lifetime of the retiree; and (2) access to the Thrift Savings Plan (TSP), which is a defined contribution retirement savings plan in which employee and (for employees covered by FERS) agency contributions accrue tax-deferred investment earnings in a retirement savings account.

Benefits Under CSRS/FERS Defined Benefit Pension Plan

Workers covered by the CSRS or FERS defined benefit pension plan receive a monthly retirement annuity for the lifetime of the retiree if the retiree meets all eligibility requirements. The payment in retirement is determined by a formula that uses the worker's number of years in federal service, an accrual percentage, and salary base. The accrual rate is higher for employees under CSRS than under FERS. Workers covered by CSRS do not participate in Social Security, do not receive Social Security benefits, and do not pay Social Security taxes. Workers covered by FERS fully participate in Social Security.

Under CSRS and FERS, an eligible spouse is entitled to receive monthly retirement benefits if (1) the covered worker dies while employed in federal service; or (2) the covered worker dies after retirement. When a federal employee dies, the surviving spouse of the deceased federal employee may be entitled to a survivor's benefit. When a married federal worker retires, the married couple receives a monthly retirement benefit for the longer of the lifetime of the worker or the spouse. The monthly benefit in retirement is reduced to account for the expected longer time period in which the benefit will be paid. The spousal benefit is the default option for married federal employees, unless both the federal worker and spouse provide written consent to waive the benefit.

Title 5 of the U.S. Code , which governs benefits under CSRS and FERS, defines the term spouse without reference to the individual's gender. Title 5 does not define the word marriage ; however, the Code of Federal Regulations defines marriage for purposes of determining eligibility for federal retirement benefits under Title 5 as "a marriage recognized in law or equity under the whole law of the jurisdiction with the most significant interest in the marital status of the employee, member, or retiree unless the law of that jurisdiction is contrary to the public policy of the United States." Since DOMA defines a spouse as "a person of the opposite sex who is a husband or a wife," same-sex partners are ineligible to receive spousal benefits entitled to opposite-sex partners.

If a federal employee dies, and no survivor annuity is payable to a spouse, former spouse, or a child, then the employee's contributions to CSRS and FERS may be returned as a lump-sum benefit. Under both FERS and CSRS, an employee may designate anyone, including a same-sex partner, as his or her beneficiary for a lump-sum refund of retirement contributions to the retirement system. If anyone qualifies to receive survivor annuity benefits by law (such as a spouse or dependent child), however, retirement contributions cannot be refunded. If no survivor benefit is payable and the employee has not designated a beneficiary, then the return of contributions will be distributed based on the order of precedence. The order of precedence awards the benefits in the following order: widow or widower; child or children equally, and to the descendants of deceased children; parents equally or surviving parent; appointed executor or administrator of estate; or next of kin who is entitled to your estate under the laws of the state in which the employee resided at the time of death.

Insurable Interest Annuity

Although a federal employee cannot name a domestic partner as his or her surviving beneficiary under either FERS or CSRS, an employee who is applying for a non-disability retirement can elect an Insurable Interest Annuity (IIA), which is a survivor annuity to an individual who is financially dependent on the employee. Only one person may be named as the beneficiary of the IIA, and the election must be made at the time of retirement. The employee must establish, through one or more affidavits from other people, the reasons why the beneficiary might reasonably expect to suffer loss of financial support as a result of the employee's death. The cost of an IIA can range from a 10% reduction in the employee's retirement annuity if the beneficiary is 10 years younger than the employee to a 40% reduction if the beneficiary is 30 or more years younger.

TSP Defined Contribution Pension Plan

Both CSRS- and FERS-covered workers may contribute up to $17,000 in 2012 ($22,500 for those age 50 and older) to the Thrift Savings Plan (TSP). Contributions to TSP are excluded from taxable income; taxes are paid when funds are withdrawn in retirement. Employees covered by FERS receive an agency matching contribution of up to 5% to their TSP account. Workers covered by CSRS do not receive agency matching contributions.

A federal employee can name anyone, including a domestic partner, as the beneficiary under the TSP. The beneficiary will receive the amount in the TSP account following a participant's death. For spouses who are beneficiaries of a deceased TSP participant and the account is $200 or more, TSP establishes a beneficiary participant account. The beneficiary account is automatically invested in the Government Securities Investment (G) Fund until the spouse beneficiary elects different investment options. The spouse may keep the funds in the TSP beneficiary account or elect to withdraw or transfer the funds to an Individual Retirement Account (IRA) or other retirement plan, if the plan allows. Non-spouse beneficiaries cannot retain a TSP account. The funds in a deceased participant's account are either transferred directly to the non-spouse beneficiary or to an inherited IRA.

Death Benefits If No Beneficiary Is Named

If an employee does not designate one or more beneficiaries under FERS, CSRS, or the TSP, the funds will be distributed based on the order of precedence. The order of precedence awards the benefits in the following order: widow or widower; child or children equally, and to the descendants of deceased children; parents equally or surviving parent; appointed executor or administrator of estate; or next of kin who is entitled to the estate under the laws of the state in which the employee resided at the time of death. Thus, the funds from the TSP or CSRS/FERS lump-sum benefit will bypass a same-sex partner unless the federal employee actively designates that person as the beneficiary.

Federal Long Term Care

Federal employees may apply for the Federal Long Term Care Insurance Program (FLTCIP; P.L. 106-265 ; 5 U.S.C. §9001), which provides medical services for enrollees who suffer a chronic medical condition and are unable to care for themselves. Employees may voluntarily opt into FLTCIP, and the entire premium is covered by the enrollee. Pursuant to 5 U.S.C. §9001, qualifying federal employees; members of the uniformed services; federal annuitants; current spouses of federal employees, servicemembers, or annuitants; adult children of federal employees, servicemembers, or annuitants; and parents, parents-in-law, and stepparents of federal employees, servicemembers, or annuitants are eligible to enroll in FLTCIP. In addition, federal law states that OPM may prescribe regulations that permit an "individual having such other relationship" to a federal employee, servicemember, or annuitant to enroll in FLTCIP.

On June 1, 2010, OPM published in the Federal Register a final rule that expanded the definition of qualified relative to include "the same-sex domestic partners of eligible Federal and U.S. Postal Service employees and annuitants." As of July 1, 2010, same-sex partners of federal employees are eligible for FLTCIP benefits.

Several comments received by OPM during the regulatory review of the definition change of qualified relative requested that opposite-sex domestic partners—in addition to same-sex partners—be made eligible for the long term care benefit. In the final rule, however, OPM wrote that "opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners."

Legislation to Affect Benefits for the Same-Sex Partners of Federal Employees

113th Congress

As a February 28, 2013, no bills have been introduced that would affect the benefits of same-sex partners of federal civilian employees.

112th Congress

In the 112 th Congress, however, two bills were introduced that, if enacted, would have provided insurance, travel, and other benefits to the same-sex partners of federal employees.

H.R. 3485 / S. 1910, Domestic Partnership Benefits and Obligations Act of 2011

On November 18, 2011, Senator Joe Lieberman—on behalf of himself and Senator Susan Collins—introduced S. 1910 , the Domestic Partnership Benefits and Obligations Act of 2011. That same day, Representative Tammy Baldwin introduced a companion bill, H.R. 3485 , in the House. S. 1910 was referred to the Committee on Homeland Security and Governmental Affairs. On May 16, 2012, the committee reported S. 1910 favorably with an amendment in the nature of a substitute. H.R. 3485 was referred to the Oversight and Government Reform Committee's Subcommittee on Workforce Protections, the House Education and the Workforce's Subcommittee on Workforce Protections, the House Judiciary's Subcommittee on Courts, Commercial and Administrative Law, and the Committee on House Administration. No further action was taken.

Among the benefits the bills sought to extend were the following:

health insurance and enhanced dental and vision benefits (5 U.S.C. Chapters 89, 89A, 89B); retirement and disability benefits and plans (5 U.S.C. Chapters 83, 84; 31 U.S.C Chapter 7; 50 U.S.C. Chapter 38); family, medical, and emergency leave (2 U.S.C. §1312; 3 U.S.C. §412; 5 U.S.C. Chapter 63 – subchapters II, IV, and V; 29 U.S.C. §2601 et seq.); federal group life insurance (5 U.S.C. Chapter 87); long-term care insurance (5 U.S.C. Chapter 90); compensation for work injuries (5 U.S.C. Chapter 81); benefits for disability, death, or captivity (5 U.S.C. §§5569 and 5570; 22 U.S.C. §3973; 42 U.S.C. §3796 et seq.); and travel, transportation, and related payments and benefits (5 U.S.C. Chapter 57; 22 U.S.C. §4981 et seq.; 10 U.S.C. §1599b; 22 U.S.C. Chapter 52; 33 U.S.C. §3071).

Pursuant to S. 1910 , each qualifying federal employee seeking to enroll his or her same-sex domestic partner in a federal benefit program would have been required to file an affidavit of eligibility with OPM. In the affidavit, the employee would have had to "attest" that he or she was in a "committed domestic-partnership," which included the following conditions:

the partners "are in a committed domestic-partnership relationship with each other ... and intend to remain so indefinitely"; the partners "have a common residence and intend to continue to do so"; the partners are at least 18 years old and are "mentally competent to consent to contract"; the partners "share responsibility for a significant measure of each other's common welfare and financial obligations"; the partners are not "married to or in a domestic partnership with anyone except each other"; the partners are not related by blood in a way that would prohibit legal marriage between individuals otherwise eligible to marry in the jurisdiction"; and the partners would be subject to the same ethical standards, financial disclosures, and conflict of interest requirements as those placed on the spouses of federal employees (5 U.S.C. Appendix; 5 U.S.C. §§3110, 7301, 7342(a)(1),7351, 7353; 2 U.S.C. §1602(4)(D); 18 U.S.C. §§205(e), 208(a); 31 U.S.C. §1353; 42 U.S.C. §290b(j)(2)).

Additionally, the applicant would have had to attest that he or she understood that "as a domestic partner, each individual not only gains certain benefits, but also assumes some obligations." The bills' language provided for "criminal and other penalties" if certain legal obligations were violated.

Both S. 1910 and H.R. 3485 would have required a federal employee to file a statement of dissolution within 30 days of the death of his or her same-sex partner or the dissolution of the relationship. Both bills would have provided benefits to the living partner of a deceased federal employee as if he or she were a widow or widower. Additionally, a former partner would have been entitled to benefits identical to that of a former spouse.

Natural children or adopted step children of a federal employee's same-sex partner would have been entitled to benefits identical to that of a natural or adopted child of a federal employee's spouse, pursuant to the bills.

Similar bills to both S. 1910 and H.R. 3485 were introduced in the previous seven Congresses. As of January 31, 2013, similar bills have not been introduced in the 113 th Congress.

No bill was introduced in the 112 th Congress that sought to explicitly rescind the benefits extended by the Obama Administration. As of January 31, 2013, no bill has been introduced in the 113 th Congress that would rescind the benefits.

Some Potential Policy Considerations Regarding Same-Sex Benefits and Federal Employees

This section provides analysis of some potential policy considerations Congress may consider that are related to federal employees and the extension of health and other benefits to same-sex partners of federal employees. Congress may choose to examine or modify existing policies related to the extension of benefits to the partners of federal employees in same-sex relationships, or maintain existing policies. Currently benefits like health care, dental care and eye care are not available to the same-sex partner of a federal employee. Other benefits, like FMLA and life insurance, however, are.

The Obama Administration has pledged its support for extending federal benefits to the same-sex partners of federal employees. The Administration has extended some benefits to same-sex partners and has argued that its actions are within the parameters of existing laws. DOMA, which was enacted by Congress and signed into law by President William J. Clinton, requires agencies to define spouse as a person of the opposite-sex, for the purpose of distributing federal benefits.

Attracting and Hiring the Most Effective Employees

Some may worry that not providing same-sex partner benefits makes the federal government a less attractive employment option to potential employees who have same-sex partners. They contend that to compete for the most effective and efficient workforce the federal government needs to offer benefits similar to those available in state and local governments and in the private sector. The Obama Administration, for example, has argued that by not extending same-sex benefits, the federal government faces difficulties recruiting and retaining high-performing employees who are in or who may enter into same-sex relationships. Estimates presented at congressional testimony in 2009 indicated that there were 34,000 federal employees in same-sex relationships, including state-recognized marriages, civil unions, or domestic partnerships. Such employees may instead choose to work for state, local, or tribal governments or private companies that provide benefits to same-sex domestic partners. When Congress enacted DOMA, report language that accompanied the legislation did not address whether denying such benefits could impede the federal government's ability to hire the most effective workers. At the time of DOMA's enactment, few employers offered same-sex benefits to their employees. There is no federal data that has tracked, over time, the availability of same-sex partner benefits to either public or private-sector employees. Such data could aid in the determination of whether private-sector employers or other levels of government have been offering benefits that the federal government has not.

Domestic Partner Benefits in the Public and Private Sector

Some private-sector and public-sector employers offer benefits to the domestic partners of their employees. The types and scope of the benefits offered, however, vary: some employers provide only health care benefits to domestic partners while other employers provide additional benefits—such as survivorship benefits under the employer's pension plan. A Congressional Research Service search of academic, legal, and other research databases, found that there appear to be few studies that track, over time, how many employers provide same-sex partner benefits to their employees and the scope of those benefits. Some studies, however, provide benefits data for a single date or over a short time span. This section provides data from these surveys.

When DOMA was enacted, few employers in the private and public sector offered domestic partner benefits of any sort. For example, a study by Hewitt Associates LLC, a global management consulting company, found in 1997 that 10% of 570 large U.S. employers offered domestic partner benefits. In 2000, the percentage of companies surveyed by Hewitt that offered domestic partner benefits increased to 22%. According to the National Survey of Employer-Sponsored Health Plans conducted by Mercer, a global consulting company, 46% of corporations with 500 or more employees included same-sex domestic partners as eligible dependents in 2011, which was an increase from 39% in 2010. In testimony in July 2009 before the House Committee on Oversight and Government Reform, Dr. M.V. Lee Badgett, the research director of the Williams Institute, said that "[i]n the private sector, almost two-thirds of the Fortune 1000, and 83% of Fortune 100 companies" provide benefits to the same-sex partners of their employees and that 20 states, the District of Columbia, and "[m]ore than 250 cities, counties, and other local government entities cover domestic partners of other public employees."

Many employers do not provide domestic-partner benefits. The nation's two largest private-sector employers—Walmart and Exxon Mobil—do not provide benefits to same-sex partners in the United States. Other employers that provide benefits to same-sex partners—including I.B.M., Corning, and Raytheon—reportedly require same-sex couples to marry, if they live in a state where same-sex marriage is legal, to become eligible for health and other benefits.

The Bureau of Labor Statistics Data

In 2011, the Bureau of Labor Statistics (BLS), for the first time in its history, released data on benefits provided to the domestic partners of employees. In March 2012, BLS updated its survey data. The BLS survey asked workers whether (1) they had access to a defined benefit pension plan at their place of employment and whether they had access to survivor benefits for an unmarried domestic partner and (2) they had access to health benefits at their place of employment and whether there was access for unmarried domestic partners. According to the surveys, workers in the public-sector (which would include state, local, and tribal—but not federal government) were more likely to be offered domestic partner benefits than workers in the private sector.

BLS reported the following:

Among private-sector workers with access to a defined benefit pension plan, 35% had access to survivorship benefits for an unmarried domestic partner in 2011 and 42% in 2012. Among private sector, civilian workers with access to health care benefits, 29% had access to health benefits for an unmarried domestic partner in 2011. In 2012, the survey data was more granular. According to the data, 30% of private industry employees had access to health care benefits for a same-sex partner (as opposed to an opposite-sex domestic partner). Among workers who worked for state and local governments, 54% had access to health benefits for an unmarried domestic partner. In 2012, the survey data was more granular. According to the data, 33% of state and local government employees had access to benefits for a same-sex partner (as opposed to an opposite-sex domestic partner).

Generally, the 2012 data demonstrated that health care benefits were "more prevalent for same-sex partners than for [unmarried] opposite-sex partners."

Cost Estimates of Providing Domestic Partner Benefits to Federal Employees

In November 2012, CBO released its score of S. 1910 , which, as described above, sought to extend certain benefits and responsibilities to the same-sex partners of federal employees and annuitants. The score projected that the extension of benefits from FY2013 through FY2022 would cost the federal government $144 million in discretionary dollars over those 10 years. This estimate was $159 million and $211 million less than CBO's score of two similar bills from the 111 th Congress ( H.R. 2517 and S. 1102 , respectively).

CBO's score of S. 1910 assumed less than 1% of the federal employee and annuitant population would have opted to enroll a same-sex partner in federal benefits programs. The score also estimated that federal government premiums for federal health care would have been reduced by $13 million over ten years if same-sex partners had been eligible to enroll. The savings would have emerged, according to CBO, because the law would have required health care providers to "recover payments when a third party is liable for the health care costs of a covered enrollee" and such recoveries would reduce government premiums. The CBO estimates of H.R. 2517 and S. 1102 from the 111 th Congress did not include recovery payment collections in their analyses.

A 2008 academic study estimated the cost of extending same-sex partner benefits to federal employees and annuitants at $41 million in the first year and $675 million over 10 years. In testimony before the House Oversight and Government Reform Committee's Subcommittee on the Federal Workforce, Postal Service, and District of Columbia on July 8, 2009, Office of Personnel Management Director Berry estimated that extending benefits to the same-sex partners of federal employees and annuitants would have cost the government $56 million in 2010.

Current budgetary circumstances may discourage Congress from extending benefits to the same-sex partners of federal employees and annuitants. As noted earlier in this report, when DOMA was enacted, the House report that accompanied the legislation stated that a primary goal of the law was to "preserve scarce government resources."

Congress often considers more than the cost or cost savings of a policy when choosing whether to act on it. Extending benefits to the same-sex partners of federal employees is controversial, and may prompt moral or ethical concerns for Members on all sides of the issue. Some Members, for example, may believe that extending benefits to the same-sex partners of federal employees violates a law enacted to require that marriage, for purposes of federal benefit programs, be defined as the union of one man and one woman. Other Members, however, may believe that prohibiting the extension of benefits to same-sex partners results in unequal treatment of federal employees in same-sex relationships. Still other Members may argue that extending benefits to federal employees in same-sex domestic partnerships is unfair to employees in opposite-sex partnerships. For example, at a House Committee on Oversight and Government Reform hearing in July 2009, Representative Chaffetz said the following:

Whether or not a heterosexual couple is dating and living together can meet all other standards except for the portion ... regarding ... same-sex status is of concern to me. If they ... are not afforded the same rights, this bill is directly discriminatory against heterosexual couples, and that, to me, is one of the unintended consequences that I have a serious concern [about] and question....

This report, however, does not address the ethical and legal debates surrounding DOMA and same-sex marriage.

Policy Options and Specific Legislative Issues

Policy Options in Response to the Administration's Actions

As discussed earlier in this report, President Obama's June 2, 2010, memorandum to the heads of executive branch departments and agencies requires OPM to create and present to the President an annual report on agency progress toward the extension of certain benefits to same-sex domestic partners. Congress may choose to stop the extension of these benefits by enacting legislation explicitly prohibiting their extension. No legislation has been introduced that would scale back the same-sex partner benefits extended by the Obama Administration. Conversely, Congress has the authority to enact into law some, all, or none of the memorandum. Congress may choose to hold hearings to examine the implementation of the memorandum.

Defining Same-Sex Partnerships

The definition of "domestic partner" is in dispute. DOMA defines marriage, for purposes of federal benefit programs, as the union of one man and one woman. For the purposes of distributing federal benefits to the partners of opposite-sex couples, the federal government recognizes a spouse from the date of legal marriage to either divorce or death. State and local governments or companies that wish to provide domestic partner benefits need to define "domestic partner" for the purpose of the benefits. Some state and local governments and companies that operate in jurisdictions that recognize same-sex marriage or domestic partnerships have required that same-sex partners be married in order to receive domestic partner benefits. Employees in states that do not recognize same-sex marriage would be required to meet the definition required by the entity that is providing the benefits. It may be difficult to define the start and end of a same-sex partnership and because many same-sex partnerships are recognized in limited circumstances or not at all, the start and dissolution of such unions may vary based on jurisdiction. This could be problematic for the federal government as an employer because the federal government has employees in all 50 states, the District of Columbia, and the territories (as well as international employees)—some of which recognize same-sex marriages, some of which recognize domestic partnerships, and some of which do not recognize any same-sex partnership. If Congress chose to enact a law to extend same-sex partner benefits, it would have to define same-sex partnership to incorporate the various terms states use for such unions as well as capture such unions that exist in states that do not acknowledge same-sex relationships. In addition, Congress would have to specify what would constitute the start of such a partnership and what would qualify as its end.

Verifying Who Qualifies for Benefits

Married couples can use a marriage license to verify their committed relationship for legal purposes. Same-sex couples, however, have no license or other type of document to verify their relationship for federal legal purposes. If Congress were to provide benefits to the same-sex partners of federal employees, Congress may also decide that the federal government must verify that benefit applicants are in a committed, same-sex domestic partnership. Congress may determine that each agency should be given authority to verify whether an employee is in a same-sex relationship or if verification of a committed same-sex relationship would be more effective if it were centralized within OPM. Congress may choose to enact legislation that would make OPM the central clearinghouse for affidavits required to qualify for same-sex partner benefits. Designating OPM as the only agency with the authority to maintain those records could increase employee privacy, making it less likely that federal employees' private information is made public. Giving each individual agency the authority to maintain the affidavits could make the documents more susceptible to information leaks, as each agency could have a different system of recordkeeping. In addition, giving individual agencies the authority to file the affidavits makes it more likely that federal employees applying for the benefits may know the person with whom they must file the record, making the process less anonymous. Some federal employees may be less likely to enroll in the program if they must identify themselves as gay or lesbian in front of a co-worker. Moreover, many federal employees may leave one agency to take a temporary or permanent position in another. OPM may provide the most logical clearinghouse for benefits processing because it could remove the need for employees who move from one agency to another to reapply for the same benefits. On the other hand, Congress may determine that OPM's mission does not include this type of government-wide recordkeeping role related to federal benefits. Giving individual agencies the authority to certify employee affidavits would not task OPM with a responsibility it may not have the capacity to undertake. Some have expressed the concerns about the potential for abuse and that some employees may claim to be in a partnership solely for the purpose of receiving benefits. This could be the case if the requirements for obtaining recognition of a domestic partnership were less stringent than the requirements for opposite sex couples to obtain a marriage license.

Benefits for Domestic Partners

Some federal employees may not be married to their domestic partners, whether that partner is of the same or a different gender. As noted above, the domestic partners of these employees are not eligible to receive many federal benefits because they do not qualify as a "spouse," pursuant to federal law. In a House Oversight and Government Reform Committee report that accompanied a bill in the 111 th Congress that sought to extend same-sex partner benefits, the committee wrote the following:

federal employees living with opposite sex domestic partners have the option of marriage, which would entitle the employee and his or her spouse to the receipt of these benefits. Same sex partners may only get married in a handful of states. Even in these cases, the federal government does not recognize the marriage because of the Defense of Marriage Act (DOMA). H.R. 2517 does not affect DOMA. Therefore, under current OPM guidelines, same sex partners, even where married, are ineligible to receive these benefits as spousal benefits.

Congress may choose to extend benefits only to those in legally recognized same-sex domestic partnerships. This limitation would control the costs associated with extending partner benefits by restricting the number of possible beneficiaries. Congress, however, may also consider extending benefits to the domestic partner of any federal employee, regardless of that partner's gender. Such action may attract more candidates to federal jobs. Such action also would permit an employee to qualify for federal benefits without having to identify the gender of his or her domestic-partner. Some employees may be hesitant to identify the gender of their domestic partner, even if the affidavit is confidential. The extension of benefits to such partners regardless of gender, however, could increase the costs of the FEHBP.

Taxation of Benefits105

DOMA precludes same-sex partners from being recognized as a married couple under the Internal Revenue Code (IRC). A complete overview and analysis of the tax implications of same-sex marriage is beyond the scope of this report. However, the tax treatment of health benefits may be relevant to federal employees who are in same-sex relationships, particularly when one member of the couple works in the private sector.

Same-sex couples have a larger tax liability when one partner's health insurance benefits are extended to the other partner. While a federal employee's health plan cannot cover a same-sex partner, certain employers in the private sector choose to extend health insurance coverage to same-sex partners. The extension of this benefit often increases the tax liability of a same-sex couple. Under current law, opposite-sex spouses can exclude from gross income employer contributions to their health insurance plans. As a result of DOMA, same-sex couples must pay taxes on the employer contributions that cover a same-sex partner, sometimes referred to as "imputed income." For example, if an employer contributed $80 per paycheck to the cost of an employee's health insurance plan that covered a same sex partner, the employee would have to include some portion of the $80 in their gross income, increasing their taxable income (including payroll taxes) and ultimately their tax liability.

In addition, if federal health benefits were extended to same-sex couples, but DOMA was not repealed, federal employees who extended their health coverage to their same-sex partner would also be subject to additional taxation from the "imputed income," as defined above.