Brody's Scribbles... State Department Employees Threaten Federal Lawsuit Demanding Equal Treatment

By Brody Levesque (Washington DC) Dec 29 | As the Anti-Gay Marriage opponents in the District commence a campaign to overturn the recently enacted D.C. Marriage Equality Law, across town at Foggy Bottom, some Foreign Service personnel are threatening to take what they claim is discrimination and unequal treatment of the benefits afforded Department of State Employees who are married and partners of LGBT personnel. 

In an article published last Saturday by the Los Angeles Times' columnist Paul Richter, he reports that unmarried opposite-sex partners in the Foreign Service say they should be treated the same and that at least one State Department couple has threatened to challenge the rules in court as discriminatory.

Benefits for gays? Us too, say the unwed

Opposite-sex partners in the Foreign Service say they should be treated the same.

Secretary of State Hillary Rodham Clinton won praise in June after pushing to extend many federal benefits traditionally provided to diplomats' spouses to gay and lesbian partners.Since then, unmarried heterosexual couples have been lining up to ask for benefits too. They have approached the State Department's personnel office and the diplomats' union, arguing that they are entitled to equal treatment. At least one couple has threatened to challenge the rules in court as discriminatory. 

The U.S. Office of Personnel Management, which is responsible for policy on federal workers, is weighing such an extension of benefits, U.S. officials say -- to the consternation of conservatives. 

"They should have seen this coming," said Rep. Steve King (R-Iowa), who had opposed extending benefits to gays. "It's a Pandora's box." 

The family benefits, although a small part of diplomats' overall benefit package, are important to Foreign Service officers. Benefits include paid travel for the partner to and from overseas posts; visas and diplomatic passports; emergency medical treatment; shipment of household possessions; emergency evacuation in times of danger; and education benefits for minor children. Health insurance is not included for gay partners, although spouses are covered.

The problem is that this particular issue actually underscores the difficulties that face LGBT partners in all branches of Federal Service despite an Executive Memorandum issued by the President on June 17th, 2009 which reads:

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Federal Benefits and Non-Discrimination

Section 1. Extension of Identified Benefits. The Secretary of State and the Director of the Office of Personnel Management shall, in consultation with the Department of Justice, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.

Sec. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the Office of Personnel Management, who, in consultation with the Department of Justice, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.

Sec. 3. Promoting Compliance with Existing Law Requiring Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The Office of Personnel Management shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) Authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) Functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 5. Publication. The Director of the Office of Personnel Management is hereby authorized and directed to publish this memorandum in the Federal Register.

Sounds pretty set in stone right? Nope, not hardly. Opponents have already attacked this memorandum as flawed and in violation of the Defence of Marriage Act, Richter continues:

Conservatives who oppose easing the rules cite the federal Defense of Marriage Act. Passed in 1996 and signed by President Clinton, it defines marriage as between a man and a woman, and says that no state shall be required to recognize a gay marriage performed in another state. 

"A good argument can be made that even these relatively limited steps violate at least the spirit of the Defense of Marriage Act," said Peter Sprigg, a fellow at the Family Research Council, which advocates for socially conservative causes.   He said the pressure from unmarried heterosexual couples "illustrates one of our concerns -- that once you open the door to anyone other than married couples, you're beginning a process of the deconstruction of marriage." 

Also, according to Richter, there was warnings to LGBT advocates that pushing too hard might create further headaches.

Michelle Schohn, spokeswoman for the advocacy group Gays and Lesbians in Foreign Affairs Agencies, said her group was cautioned during the closing days of the George W. Bush administration about the consequences of demanding family benefits for same-sex partners.

"If you included opposite-sex domestic partners, you could potentially be running afoul of [the Defense of Marriage Act] by creating this 'marriage light' category," she said.

Schohn said her group supported extending benefits to unmarried heterosexual couples. "They're our natural allies," she said.

However, according to data by the U. S. Department of Commerce Census Bureau, unwed heterosexual couples in the United States comprise about 10% of opposite-sex couples living together. I just love that 10% number, wasn't it Kinsey in his late 1940's groundbreaking study on human male sexuality that said that 10% of all males in the United States population were Gay?

How does the officialdom look on this tempest brewing? A senior official over at Foggy Bottom deferred, as he put it, to the White House as that's where the final say so actually rests. But he did note that the general feeling was that benefits should also be offered to hetero-couples in committed relationships. Richter had this from Tom Switzer of the American Foreign Service Association, the diplomats' union, which has not yet taken a position:  The Union "has heard from a number of members who believe that the same benefits should be extended to opposite-sex, unmarried partners as well."
The President's memorandum did omit health insurance as well as pension benefits for same-sex partners. The reasoning was that OPM [ Office of Personnel Management ] officials had estimated that including those broader benefits would have cost $56 million in the  Federal Budget for 2010, more than the cost of the lesser included benefits.

Legal experts and Congressional opponents have also stated that including broader benefits would violate the Defense of Marriage Act.

This issue is about to become a lightening rod issue in Washington once a broader coalition of Anti-Gay Marriage opponents latch on to it and commence a campaign to stop implementation of the Presidential memorandum by lawsuits and negative campaigning/lobbying to lawmakers and the public at large.

This will, as Representative King noted, open up the proverbial Pandora's box which also, given a recent announcement in his home state of Iowa that the Anti-Gay marriage lobby was preparing another campaign to repeal Iowa's law that gave LGBT persons full marriage equality, is rather ironic.

The only way to effectively change all this is to have the Defence of Marriage Law repealed and taken off the books. Something that the President himself has advocated.