Same-sex spouses of federal employees could benefit under high court ruling

June 26, 2013

In striking down the Defense of Marriage Act, the U.S. Supreme Court specifically referred in several places to the law’s impact on federal employee benefit programs, raising the prospect that those benefits now will be extended to same-sex spouses.

Because of the DOMA law’s definition of marriage as between a man and a woman, several of the most valuable of federal employment-related benefits — coverage under the Federal Employees Health Benefits Program and eligibility for survivor benefits under federal retirement programs — have been denied to same-sex spouses of federal employees and retirees.

(Karen Bleier/AFP-Getty)
(Karen Bleier/AFP-Getty Images)

President Obama has ordered agencies to “review all relevant federal statutes to ensure this decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly.”

Acting Office of Personnel Management Director Elaine Kaplan said in a statement that OPM “will be working closely with the Department of Justice and other agencies to provide additional guidance for federal human resources professionals, benefits officers, and our employees and annuitants. While we recognize that our married gay and lesbian employees have already waited too long for this day, we ask for their continued patience as we take the steps necessary to review the Supreme Court’s decision and implement it.”

The high court ruled that DOMA deviated from the “usual tradition of recognizing and accepting state definitions of marriage” and deprived same-sex couples “of the benefits and responsibilities that come with the federal recognition of their marriages.”

“It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive,” the majority opinion says, specifically citing the sections of federal law that govern eligibility under the Federal Employees Health Benefits Program for spouses of active and retired employees.

Similarly, the court said that DOMA “denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.” In that section it refers to survivor benefits for spouses or children under Social Security, which covers most active federal employees, those enrolled in the Federal Employees Retirement System.

Also, both FERS and the separate Civil Service Retirement System similarly provide survivor benefit rights to children in some circumstances and to surviving spouses.

“Now that the Supreme Court has declared DOMA unconstitutional, we expect the federal government to move swiftly in changing its rules and regulations to ensure that all federal employees are afforded the same rights and benefits, regardless of whom they choose to marry,” Leisha Self, a legal rights attorney for the American Federation of Government Employees, said in a statement released by the union.

“This important decision will extend to federal workers benefits that have become commonplace in the private sector and for other public employees,” Colleen M. Kelley, President of the National Treasury Employees Union, said in a statement.

Carrying out the decision will require working through the specifics of laws and rules governing each benefit program, however.

“Each of the agencies has a way of addressing who’s married and who’s not. This will just default to what FEHB and [the retirement programs] do now for every other married person,” said Ara Gershengorn, a partner with the Foley Hoag law firm in Boston. The firm filed a friend of the court brief on behalf of 13 former senior government officials, including Constance Berry Newman, who headed the Office of Personnel Management during the George H.W. Bush administration.

According to a Congressional Research Service report issued in February, the federal employee retirement law “defines the term spouse without reference to the individual’s gender.” And while that law does not define the word marriage, it said, rules define a marriage for federal retirement benefit purposes as one recognized in the jurisdiction “with the most significant interest in the marital status” of the individual, unless that law is contrary to federal policy.

A decision on which state has the “most significant interest” likely would take into account issues such as where the employee lived while working, at retirement and at death, where the couple had financial assets and where the surviving spouse lives, Gershengorn said in an e-mail.

For health insurance, an OPM spokesperson said in an e-mail, “under our existing policy in determining eligibility for spousal benefits under the FEHBP, OPM looks to whether the employee or annuitant was legally married as determined by the place the marriage was celebrated.”

The Obama administration previously extended some federal employment-related benefits to same-sex couples, regardless of marital status, who meet certain standards for “domestic partnership.” It determined that those benefits could be granted despite DOMA because they do not refer to spouses specifically.

Those benefits include a variant form of survivor annuity called an “insurable interest” annuity that typically is less valuable than a standard annuity; eligibility to enroll in the Federal Long Term Care Insurance Program; and eligibility as family members for certain employee relocation benefits, among others. Employees also can use sick leave to care for those partners or their children under certain circumstances.

The high court decision also suggests that same-sex spouses of federal employees now will come under various ethical restrictions that traditionally have applied only to opposite-sex couples. These include bans on accepting gifts from certain sources and rules that bar a federal employee from participating in an agency decision that could affect a company in which a spouse has a financial interest.

This post has been updated.

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Josh Hicks | June 26, 2013