Lawmakers consider domestic partner benefits

By Alyssa Rosenberg July 9, 2009

Lawmakers and witnesses at a hearing on Wednesday discussed how best to extend benefits to the partners of gay and lesbian federal employees and retirees, a conversation that involved occasionally pointed exchanges on the nature of discrimination.

"It's baffling that this blatant inequity persists 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," said House Oversight and Government Reform Federal Workforce Subcommittee Chairman Stephen Lynch, D-Mass.

The 2009 Domestic Partnership Benefits and Obligations Act (H.R. 2517) would grant the partners of gay and lesbian federal workers access to the full range of benefits currently available to the spouses of heterosexual employees. Those benefits include enrollment in the Federal Employees Health Benefits Program and full coverage of relocation costs. The legislation also would require the partners of gay and lesbian employees to abide by anti-nepotism and financial disclosure rules, which Rep. Tammy Baldwin, D-Wis., the bill's sponsor, pointed out her long-term partner has been exempt from throughout Baldwin's political career.

Office of Personnel Management Director John Berry reiterated during the hearing that he and the Obama administration "wholeheartedly endorse" the bill, reversing the position held by the previous administration. During a September 2008 congressional hearing, OPM deputy director at the time, Howard Weizmann, said the agency could not support such legislation because of concerns over insurance fraud.

Berry said his office had several friendly amendments to offer on the legislation, including expanding the bill to cover the partners of gay and lesbian federal retirees, and ensuring those benefits continue in the case of death or divorce. Baldwin's legislation also mandates that gay and lesbian federal employees file legal affidavits attesting to their partnerships when they request benefits, a higher bar than exists for heterosexual couples who are not required to provide proof of marriage when they file benefits applications for their spouses. Berry said OPM would like to explore the possibility of having agencies collect those affidavits, because OPM does not process benefits applications for current federal employees. Baldwin said she would be open to those amendments.

More complicated discussions emerged over the definition of domestic partner. H.R. 2517 defines domestic partners as people who are not married. Lynch expressed concern that the legislation would unintentionally exclude gay and lesbian couples who are married in states where their marriages are legally valid. Berry said because the Defense of Marriage Act prohibits the government from recognizing marriages between gay and lesbian couples, those couples are not considered legally married and therefore can be treated as domestic partners. He said OPM's top lawyer, Elaine Kaplan, would work with Lynch's counsel on precise definitions.

Rep. Jason Chaffetz, R-Utah, the ranking Republican on the subcommittee, was skeptical that the term domestic partner could be defined carefully enough to prevent fraud. But Baldwin said the thousands of private sector companies and states and localities that provide domestic partner benefits have demonstrated it is possible to define eligible relationships. Carolyn Wright, vice president for corporate human resources at American Airlines, said an audit of its dependent benefits did not turn up cases of fraud among domestic partners, but rather among heterosexual couples and with respect to dependent care coverage.

Chaffetz also asked witnesses repeatedly if they believed the bill discriminated against heterosexual couples who did not want to marry because "getting married is a commitment, it takes a lot of paperwork." The legislation applies only to same-sex couples.

Rep. Gerry Connolly, D-Va., said it was "odd" that Chaffetz "would even suggest inferentially that this 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 [heterosexual couples]."

Baldwin said in the absence of federal recognition of marriages between same-sex partners, "we have to come up with another mechanism in order to offer fringe employment benefits to the same-sex partner of federal employees."

But Chaffetz's closing statement suggested that the availability of domestic partner benefits to heterosexual couples was not his main objection to the bill.

"I believe in the traditional definition of marriage, that there are benefits, and there are things we do as a people to encourage that relationship; I stand proud on that," he said. "I don't think we should try to create something under a different name."

But Berry and Connolly said the legislation should not be concerned with morality or social equity, but with providing a tool to keep federal agencies competitive as they seek to recruit and retain employees.

"Those companies [that offer domestic partner benefits] are not doing that out of social work or charitable purposes," Berry said. "They are doing it because it is a valuable recruitment and retention tool in their personnel portfolio."