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Institute for Workplace Studies----------------- Professor Samuel B. Bacharach

School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor---------------------- Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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Congressional Research Service (CRS)

 

Federal Benefits and the Same-Sex Partners of Federal Employees

Wendy Ginsberg, Analyst in American National Government

John J. Topoleski, Analyst in Income Security

December 21, 2012

http://www.fas.org/sgp/crs/misc/R42873.pdf

[full-text, 31 pages]

 

Summary

The federal government provides a variety of benefits to its 4.4 million civilian and military

employees and 4.7 million civilian and military retirees. Among these benefits are health

insurance; enhanced dental and vision benefits; survivor benefits; retirement and disability

benefits; family, medical, and emergency leave; and reimbursement of relocation costs. Pursuant

to Title 5 U.S.C. Chapters 89, 89A, 89B, and other statutes, federal employees may extend these

benefits to eligible spouses and children.

 

In 1996, Congress passed the Defense of Marriage Act (DOMA, P.L. 104-199; 1 U.S.C §7) “[t]o

define and protect the institution of marriage.” DOMA contains two provisions. The first

provision allows all states, territories, possessions, and Indian tribes to refuse to recognize an act

of any other jurisdiction that designates a relationship between individuals of the same sex as a

marriage. The second provision prohibits federal recognition of these unions for purposes of

federal enactments. Pursuant to DOMA, the same-sex partners of federal employees are not

eligible to receive federal benefits that are extended to the spouses of federal employees. An

estimated 34,000 federal employees are in same-sex relationships—including state-recognized

marriages, civil unions, or domestic partnerships.

 

The Obama Administration has extended certain benefits to the same-sex partners of federal

employees and annuitants—and argued that it has done so within the parameters of existing

federal statutes. On June 2, 2010, President Obama released a memorandum that extended

specific benefits to the same-sex partners of federal employees, including coverage of travel,

relocation, and subsistence payments.

 

Some Members of Congress argue that same-sex partners of federal employees should have

access to benefits afforded married, opposite-sex couples in order to attract the most efficient and

effective employees to federal service. Other Members of Congress argue that the law prohibits

the extension of such benefits, and, therefore, actions to distribute any spousal benefits to samesex

couples is contrary to both the text and spirit of DOMA.

 

Congress has had a long-standing interest in overseeing the benefits provided to federal

employees. On the one hand, the federal government seeks to attract the most effective, highly

trained workforce to address technical and complex issues. On the other hand, finite resources can

present challenges when considering whether to extend benefits to federal employees. When

DOMA was enacted, the House report that accompanied the legislation stated that a primary goal

of the law was to “preserve scarce government resources.”

 

The Congressional Budget Office (CBO) estimated that extending benefits to the partners of

employees in same-sex relationships pursuant to S. 1910 would cost the federal government $144

million in discretionary spending between 2013 and 2022. CBO also estimated, however, that

extending the benefits could “limit future rate increases” in federal health care costs because

health care providers would be required to recover certain health care costs that previously went

unrecovered. These recovered costs could lower the federal government’s health care premiums.

In the 112th Congress, two bills have been introduced that, if enacted, would permit federal

employees to extend insurance, long-term care, and other benefits to same-sex partners. On

November 18, 2011, Senator Joseph Lieberman introduced S. 1910, the Domestic Partnership

Benefits and Obligations Act of 2011. That same day, Representative Tammy Baldwin introduced

a companion bill, H.R. 3485, also called the Domestic Partnership Benefits and Obligations Act

of 2011, in the House. On May 16, 2012, S. 1910 was ordered to be reported favorably from the

Committee on Homeland Security and Governmental Affairs. H.R. 3485 was referred to multiple

committees, but no further action has been taken on the bill.

 

This report examines current policies on the application of benefits to the same-sex partners of

federal employees and reviews certain policy debates about the extension or removal of these

benefits. This report also presents data on the prevalence of same-sex partner benefits in the

private and public sector. This report focuses on federal benefits for same-sex partners and not on

same-sex relationships in general. For more information on the implementation of DOMA and

how it affects same-sex partnerships, see CRS Report RL31994, Same-Sex Marriages: Legal

Issues, by Alison M. Smith. For information on private sector employee benefit plans and samesex

partner benefits, see CRS Report R41998, Same-Sex Marriage and Employee Benefit Plans:

Legal Considerations, by Jennifer Staman.

 

Contents

Introduction ...................................................................................................................................... 1

The Defense of Marriage Act and Federal Benefits ......................................................................... 3

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

Employees .................................................................................................................................... 4

The First Memorandum ............................................................................................................. 5

The Second Memorandum ........................................................................................................ 5

Survey of Particular Benefits ........................................................................................................... 6

Benefits Expressly Provided to Spouses ................................................................................... 8

Health Benefits .................................................................................................................... 8

Dental and Vision Benefits .................................................................................................. 8

Federal Employment Compensation Act Benefits .............................................................. 9

Federal Benefits Provided to Spouses and Others ..................................................................... 9

Family and Medical Leave Act ........................................................................................... 9

Other Types of Leave ........................................................................................................ 10

Life Insurance .................................................................................................................... 11

Federal Employee Pensions and Survivor Benefits ................................................................. 12

Benefits Under CSRS/FERS Defined Benefit Pension Plan ............................................. 12

Insurable Interest Annuity ................................................................................................. 13

TSP Defined Contribution Pension Plan ........................................................................... 14

Death Benefits If No Beneficiary Is Named ..................................................................... 14

Federal Long Term Care .................................................................................................... 14

Legislation in the 112th Congress ................................................................................................... 15

Some Potential Policy Considerations Regarding Same-Sex Benefits and Federal

Employees .................................................................................................................................. 18

Attracting and Hiring the Most Effective Employees ............................................................. 18

Domestic Partner Benefits in the Public and Private Sector ............................................. 19

The Bureau of Labor Statistics Data ................................................................................. 20

Cost Estimates of Providing Domestic Partner Benefits to Federal Employees ............................ 21

Policy Options and Specific Legislative Issues ............................................................................. 23

Policy Options in Response to the Administration’s Actions .................................................. 23

Defining Same-Sex Partnerships ............................................................................................. 23

Verifying Who Qualifies for Benefits ...................................................................................... 24

Benefits for Domestic Partners ................................................................................................ 25

Taxation of Benefits................................................................................................................. 25

 

Tables

Table 1. Some Benefits Available to Federal Employees and Their Spouses (as Defined

by DOMA) and the Availability of These Benefits to the Same-Sex Partners of Federal

Employees .................................................................................................................................... 7

 

Contacts

Author Contact Information........................................................................................................... 26

Acknowledgments ......................................................................................................................... 26

 

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