Sens. Joseph Lieberman, I-Conn., and Susan Collins, R-Maine, plan to reintroduce the Domestic Partnership Benefits and Obligations Act, perhaps as early as this month, and Rep. Tammy Baldwin, D-Wis., will offer a similar proposal in the House. The bills would allow gay and lesbian federal employees to enroll their partners in health insurance and other benefits programs.
The issue also has gained urgency because federal judges in California recently ordered the Administrative Office of the United States Courts, which handles benefits applications for judicial branch employees, to grant the same-sex spouses of two court workers access to the Federal Employees Health Benefits Program.
Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, said OPM, which administers FEHBP, was interpreting the laws governing the program too narrowly. Those laws spell out who should be covered under the federal plan. But Kozinski noted that the types of benefits listed under the laws -- such as coverage for spouses or dependent children up to age 22 -- should be considered minimum requirements.
OPM could decide to open the program to more people, the judge said in a Jan. 13 order directing the Administrative Office of the United States Courts to process benefits applications that would allow Karen Golinski, a 9th Circuit staff attorney, to add her wife to her health insurance plan. Kozinski said the office must continue processing benefits forms without regard for the sex of the spouse.
OPM officials have maintained that the agency cannot provide health care or other employer-based benefits to same-sex couples because of the 1996 Defense of Marriage Act, which bars the federal government from treating any same-sex relationships as marriages, even if those couples are married in states where it is legal.
But in a separate order on Feb. 2, 9th Circuit Judge Stephen Reinhardt said the Defense of Marriage Act was unconstitutional, and he directed the administrative office to process insurance forms for the husband of Brad Levenson, a deputy federal public defender. Reinhardt reiterated Kozinski's order to process benefits forms for any same-sex couples who applied for them, and retained jurisdiction over the matter "so that I may issue any further order that may be necessary to ensure that Levenson's spouse receives the benefits to which he is entitled."
Mike Orenstein, a spokesman for OPM, declined to comment on the impact of the California court orders, and referred a request for comment to the White House.
President Obama appointed National Zoo director John Berry to be OPM director on March 3, sparking speculation that if Berry is confirmed, the agency's stance on domestic partnership benefits could shift. Berry worked on a range of initiatives affecting benefits for and treatment of gay and lesbian federal employees during a stint as assistant secretary at the Interior Department under President Clinton.
Ben LaBolt, a spokesman for President Obama, repeated an earlier statement to The New York Times, saying the president opposed full marriage rights for gay couples, but that all citizens should be treated with dignity and respect. White House Press Secretary Robert Gibbs said in his daily briefing on Friday that the White House will work with Congress on the issue.
Leslie Phillips, communications director for Lieberman on the Senate Homeland Security and Governmental Affairs Committee, said the senator planned to reintroduce the Domestic Partnership Benefits and Obligations Act soon.
"Our legislation would fix this very problem," Phillips said. "It would give OPM the explicit authority to do what they now say they don't have the authority to do."
Colleen Kelley, president of the National Treasury Employees Union, said she hoped OPM would consider following Kozinski's guidance and expanding its authority. She noted that the union had negotiated domestic partner health benefits coverage for employees at the Federal Deposit Insurance Corporation. Workers there can bargain over pay and benefits because FDIC is not covered by the normal appropriations process. Kelley said the relative ease of expanding benefits at FDIC could serve as a model for other agencies and lawmakers.
"I think it would be great if OPM determines they have the authority and do it administratively," Kelley said. But she emphasized the need for a more permanent solution: "The good thing about legislation is once it's in the statute -- it can't be taken away."
Beth Moten, legislative director for the American Federation of Government Employees, said health care isn't the only issue that the Domestic Partnership Benefits and Obligations Act would solve -- the legislation addresses retirement benefits, family leave, long-term care insurance and other benefits available to heterosexual married couples.
"AFGE strongly supports the Lieberman-Baldwin bill, which is about all benefits, not just health insurance," Moten said. "If it passes the Congress, we would certainly expect President Obama to sign it."