Domestic Dispute

Slowly but surely, the government in recent years has been expanding benefits to same-sex domestic partners of federal workers. But same-sex partners still are not eligible for coverage under the Federal Employees Health Benefits Program, arguably the Holy Grail for supporters of expanding government benefits.

The issue has been attracting more attention since President Obama last month declared the 1996 Defense of Marriage Act unconstitutional. The law prohibits the government from offering full domestic partner benefits, but there has been legal wrangling in the past over whether the Office of Personnel Management has authority to grant access to health care to domestic partners. In a Feb. 28 court document from the Justice Department on a case involving the extension of FEHBP benefits to the wife of a female federal worker, the administration clearly is of the opinion that OPM does not possess such authority -- even in the face of Obama's decision to call for DOMA's repeal.

Karen Golinski, a federal employee of the 9th Circuit Court of Appeals in California, sued OPM in 2008 for discrimination when the agency said her wife was not eligible for FEHBP coverage. Golinski is legally married in the state of California. The judge in the case instructed OPM to allow Golinski to add her wife to her health insurance plan, but the agency has maintained throughout the past two years of litigation that it does not have the jurisdiction to do so. Then in February, Obama declared DOMA unconstitutional, prompting questions from the judge in the Golinski case about where that leaves the issue of FEHBP coverage for same-sex domestic partners.

It leaves the issue exactly where it is, says the Justice Department. In other words, it's still not an option for OPM.

The administration is directing agencies to continue to enforce DOMA, including the section that defines marriage as a union only between a man and a woman -- a provision that has bearing on benefits coverage. "Pursuant to the instructions of the president, OPM will continue to enforce Section 3 of DOMA until it is repealed, or there is a final judicial finding striking it down," the government said in response to questions from the chief judge for the 9th Circuit Court of Appeals in the Golinski case.

This is not the first time the Obama administration has gone on the record on DOMA and the question of benefits. In 2009, the president issued a memo directing agencies to extend some benefits to same-sex partners, but stopped short of granting employees' partners access to health care benefits, saying he legally could not do so. Also, Obama has called for repealing the act before, though he only recently declared it unconstitutional.

All this begs the question: Which benefits currently are available to same-sex domestic partners?

• Long-term care insurance: Same-sex domestic partners of federal workers for the first time will be able to enroll in the Federal Long-Term Care Insurance Program, which helps pay for the cost of care when participants need help with daily activities, or have a severe cognitive illness. Open season this year runs from April 4 through June 24.
• Family and parental leave: A Sept. 10, 2010, OPM memo directs agency chief human capital officers to extend annually 24 hours of leave without pay to federal employees and their same-sex domestic partners to handle routine education and medical needs of their families. The benefit would allow employees with same-sex domestic partners to be absent to attend school functions, such as parent-teacher conferences and volunteer activities; accompany children to medical and dental appointments; and care for elderly relatives, including attending routine appointments and arranging for housing or food needs.

Some individual agencies have further expanded benefits to same-sex spouses. The Labor Department and the Forest Service, for instance, have granted sick leave benefits long available to heterosexual couples under the 1993 Family and Medical Leave Act to those in domestic same-sex partnerships. FMLA provides workers with 12 weeks of unpaid leave for situations such as the birth or adoption of a child; a seriously ill child, spouse or parent; or the employees' own serious health condition.

Rep. Tammy Baldwin, D-Wis., plans to work during this Congress with Sens. Joe Lieberman, I-Conn., and Susan Collins, R-Maine, to advance legislation that would allow same-sex partners of federal employees access to health benefits.