Out of the 8 million federal government employees, approximately 34,000 are in same-sex relationships through state-recognized marriages, civil unions and domestic partnerships. The Defense of Marriage Act, enacted in 1996, works to exclude the recognition of same-sex relationships for the purposes of federal benefits, rights and privileges. The passage of DOMA codifies this by first defining the term “marriage” for the purposes of federal law as a legal union between one man and one woman as husband and wife. Secondly, DOMA permits states to deny marriage-type relationships for LGBT couples even if the relationship is recognized in other states.
The impact of the inability to marry or to have one’s marriage recognized at all levels of government is significant. There are 1,138 identified federal rights in which marital status is a determining factor in receiving them. Acknowledging this, President Obama began the effort to erode the reach of DOMA by issuing a compelling memorandum in June 2010 addressing an implementation strategy for making the basic rights given to opposite-sex couples also available to same-sex couples.
The memorandum described the opportunity to extend benefits to same-sex couples under existing law, and provided for immediate action through the guidance and recommendations of OPM. Upon the issuance of the memorandum, certain benefits were put into effect for same-sex partners of federal employees for coverage of travel, relocation and subsistence payment, as well as certain childcare and sick-leave benefits.
Obama was able to do this legally by making aspects of same-sex domestic partnerships fit neatly within the defined terms of who is subject to employment benefits. For example, the memo states, “[T]he director of OPM should take appropriate action to clarify that the children of employees’ same-sex domestic partners fall within the definition of ‘child’ for purposes of federal child-care subsidies and, where appropriate, for child-care services and clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as ‘family members.’” Such an approach deftly avoids the need for any Congressional legislation, and avoids the need to directly confront DOMA, while inherently undermining it.
Additionally, on Feb. 23, 2011, the Obama administration expressly stated that it would no longer uphold the constitutionality of Section 3 of DOMA, which describes marriage for federal purposes as being only between a man and a woman. Attorney General Eric Holder justified the administration’s decision by stating, “[a]fter careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.” With that said, the United States is still obligated to continue with the enforcement of DOMA.
As it stands, DOMA remains a barrier in reaching full equality in the workplace, and it will continue unless Congress acts or the courts hand down a decision rendering DOMA unconstitutional. Starting this year, federal employees in same-sex domestic partnerships will receive new and expanded benefits, but the law continues to prohibit the government from offering full domestic-partner benefits.
Thanks to the Obama administration, a door has been opened for what should be a pivotal and historic discussion and, at the very least, there is momentum toward achieving equality for LGBT individuals in the federal workplace and beyond.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com
and she maintains two blogs, www.phillygaylawyer.com
and www.lifeinhouse.com. Send Angela your legal questions at email@example.com.