[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 2517, DOMESTIC PARTNERSHIP BENEFITS AND OBLIGATIONS ACT OF 2009
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL WORKFORCE,
POSTAL SERVICE, AND THE DISTRICT
OF COLUMBIA
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 2517
TO PROVIDE CERTAIN BENEFITS TO DOMESTIC PARTNERS OF FEDERAL EMPLOYEES
__________
JULY 8, 2009
__________
Serial No. 111-15
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
JOHN F. TIERNEY, Massachusetts MARK E. SOUDER, Indiana
WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts LYNN A. WESTMORELAND, Georgia
JIM COOPER, Tennessee PATRICK T. McHENRY, North Carolina
GERALD E. CONNOLLY, Virginia BRIAN P. BILBRAY, California
MIKE QUIGLEY, Illinois JIM JORDAN, Ohio
MARCY KAPTUR, Ohio JEFF FLAKE, Arizona
ELEANOR HOLMES NORTON, District of JEFF FORTENBERRY, Nebraska
Columbia JASON CHAFFETZ, Utah
PATRICK J. KENNEDY, Rhode Island AARON SCHOCK, Illinois
DANNY K. DAVIS, Illinois ------ ------
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
------ ------
Ron Stroman, Staff Director
Michael McCarthy, Deputy Staff Director
Carla Hultberg, Chief Clerk
Larry Brady, Minority Staff Director
Subcommittee on Federal Workforce, Postal Service, and the District of
Columbia
STEPHEN F. LYNCH, Massachusetts, Chairman
ELEANOR HOLMES NORTON, District of JASON CHAFFETZ, Utah
Columbia JOHN M. McHUGH, New York
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
ELIJAH E. CUMMINGS, Maryland BRIAN P. BILBRAY, California
DENNIS J. KUCINICH, Ohio
WM. LACY CLAY, Missouri
GERALD E. CONNOLLY, Virginia
William Miles, Staff Director
C O N T E N T S
----------
Page
Hearing held on July 8, 2009..................................... 1
Text of H.R. 2517................................................ 35
Statement of:
Badgett, M.V. Lee, research director, Williams Institute on
Sexual Orientation Law and Public Policy, UCLA School of
Law; Gregory A. Franklin, assistant executive officer,
Health Benefit Services, California Public Employees'
Retirement System; and Carolyn E. Wright, vice president,
Corporate Human Resources, American Airlines............... 74
Badgett, M.V. Lee........................................ 74
Franklin, Gregory A...................................... 81
Wright, Carolyn E........................................ 88
Baldwin, Hon. Tammy, a Representative in Congress from the
State of Wisconsin......................................... 45
Berry, John, Director, U.S. Office of Personnel Management... 51
Guest, Ambassador (ret.) Michael, former career Foreign
Service Officer; Lorilyn Holmes, current Federal employee,
reverend, Metropolitan Community Churches; and Frank Page,
pastor, First Baptist Church of Taylor, SC, president,
Southern Baptist Convention 2006........................... 105
Guest, Ambassador (ret.) Michael......................... 105
Holmes, Lorilyn.......................................... 112
Page, Frank.............................................. 121
Letters, statements, etc., submitted for the record by:
Badgett, M.V. Lee, research director, Williams Institute on
Sexual Orientation Law and Public Policy, UCLA School of
Law, prepared statement of................................. 76
Baldwin, Hon. Tammy, a Representative in Congress from the
State of Wisconsin, prepared statement of.................. 48
Berry, John, Director, U.S. Office of Personnel Management,
prepared statement of...................................... 53
Connolly, Hon. Gerald E., a Representative in Congress from
the State of Virginia, prepared statement of............... 63
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 127
Franklin, Gregory A., assistant executive officer, Health
Benefit Services, California Public Employees' Retirement
System, prepared statement of.............................. 83
Guest, Ambassador (ret.) Michael, former career Foreign
Service Officer, prepared statement of..................... 108
Holmes, Lorilyn, current Federal employee, reverend,
Metropolitan Community Churches, prepared statement of..... 114
Lynch, Hon. Stephen F., a Representative in Congress from the
State of Massachusetts:
Followup questions and responses......................... 58
Various prepared statements.............................. 4
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia, prepared statement of................ 2
Wright, Carolyn E., vice president, Corporate Human
Resources, American Airlines:
American Airlines article................................ 90
Prepared statement of.................................... 95
H.R. 2517, DOMESTIC PARTNERSHIP BENEFITS AND OBLIGATIONS ACT OF 2009
----------
WEDNESDAY, JULY 8, 2009
House of Representatives,
Subcommittee on Federal Workforce, Postal Service,
and the District of Columbia,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:45 p.m., in
room 2154, Rayburn House Office Building, Hon. Stephen F. Lynch
(chairman of the subcommittee) presiding.
Present: Representatives Lynch, Norton, Cummings, Connolly,
and Chaffetz.
Staff present: William Miles, staff director; Aisha
Elkheshin, clerk; Jill Crissman, professional staff member;
Margaret McDavid and Jill Henderson, detailees; Daniel Zeidman
and Christina Severin, interns; Dan Blankenburg, minority
director of outreach and senior advisor; Adam Fromm, minority
chief clerk and Member liaison; Howard Denis, minority senior
counsel; Chapin Fay, minority counsel; and Alex Cooper,
minority professional staff member.
Mr. Lynch. Good afternoon. The subcommittee hearing will
begin. I apologize to all of those in attendance. As you know,
we've been busy on the floor, but we will get right down to
business now.
I want to first of all thank Ms. Norton for her attendance
here while we were on the floor. Unfortunately, she has to now
chair her own subcommittee chair panel, and she has asked to
place her statement in the record, which we will do.
[The prepared statement of Hon. Eleanor Holmes Norton
follows:]
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Mr. Lynch. The Subcommittee on the Federal Workforce,
Postal Service, and the District of Columbia will now come to
order.
I welcome our ranking member, Mr. Chaffetz, and members of
the subcommittee, the hearing witnesses, and all of those in
attendance.
Today's hearing will examine H.R. 2517, the Domestic
Partnership Benefits and Obligations Act of 2009. H.R. 2517 is
intended to ensure equal treatment to lesbian and gay Federal
civilian employees by providing that same-sex partners be
entitled to the same benefits as a married Federal employee and
his or her spouse. The purpose of the hearing is to examine the
merits of this legislation and to discuss its potential
implementation and costs.
The Chair, the ranking member and the subcommittee members
will each have 5 minutes to make opening statements, and all
Members will have 5 legislative days to submit statements for
the record.
At this time, I would like to ask unanimous consent that
the testimonies from the National Treasury Employees Union, the
American Federation of Government Employees, the International
Federation of Professional and Technical Engineers, Human
Rights Campaign, the Alternative to Marriage Project, and the
Parents, Families and Friends of Lesbians and Gays be submitted
for the record.
Hearing no objection, it is so ordered.
[The information referred to follows:]
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Mr. Lynch. Good afternoon, ladies and gentlemen. Today, the
subcommittee convenes to discuss H.R. 2517, which is a measure
introduced by our own colleague, Representative Tammy Baldwin
of Wisconsin, designed to provide equal treatment to lesbian
and gay Federal and civilian employees by providing that same-
sex domestic partners be entitled to the same benefits
available to a married Federal employee and his or her spouse.
While today's proceeding has been framed as a legislative
hearing with the purpose of discussing the merits, composition
and impact of H.R. 2517, the real issues we are confronting
today deal with the principles of equality, fairness, and
inclusion in the workplace, principles that should be
commonplace for the Federal Government as an employer both in
theory and in fact.
Yet today, neither exists as tens of thousands of Federal
workers and their same-sex partners continue to be denied
access to employee benefits such as health insurance, overtime,
and savings, which are customarily offered to employees with
opposite-sex spouses. In many ways, it's baffling that this
inequality exists on the Federal level despite the significant
expansion in the availability of employment-related benefits
and equal treatment for domestic partners among other public
and private sector employers.
We know that nearly 20 States and over 250 localities
expand benefits to domestic partners of other public employees,
and in the private sector, we have seen that the number of
Fortune 500 companies that extend benefits to employees with
same-sex partners has grown from 46 companies, about 9 percent,
in 1997 to 286 companies, 57 percent, in 2009.
Aside from the basic concepts of fairness and
nondiscrjmination, the need to consider providing domestic
partners' benefits to Federal employees should also be
evaluated in light of the potential positive impacts that such
policies can have on the Federal Government's recruitment and
retention capabilities, its employee productivity and morale
and, in some cases, the bottom line, as uninsured domestic
partners must often rely on other government-sponsored health
care programs and plans.
I would again like to thank the gentlelady from Wisconsin,
Congresswoman Tammy Baldwin, and the 100-plus cosponsors of
H.R. 2517 for their work, their diligence, and their commitment
to correcting a longstanding injustice which has resulted in
some Federal workers not receiving equal pay for equal work.
I would like to point out recent action taken by the Obama
administration in providing same-sex partners of Federal
employees with certain benefits already available to spouses of
heterosexual employees. Although these fall short of the full
range of benefits available to married couples, the President's
actions are nevertheless a step in the right direction, and
they must be complemented by congressional legislative action,
which is what brings us to today's consideration of H.R. 2517,
the Domestic Partnership Benefits Act of 2009.
[The text of H.R. 2517 follows:]
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Mr. Lynch. I look forward to a healthy and robust
discussion on all aspects of the measure before us.
I would like to thank today's witnesses for taking the time
to be with us today as we explore this important issue.
I would now like to call upon our witnesses.
It is the committee's policy that all witnesses are to be
sworn. I'll ask you to please rise.
[Witnesses sworn.]
Mr. Lynch. The record will show that the witnesses have
answered in the affirmative, and I will now ask our ranking
member, Mr. Chaffetz, the gentleman from Utah, for a 5-minute
opening statement.
Mr. Chaffetz. Thank you, Mr. Chairman. I do appreciate it,
and I appreciate the work that you've put into this effort, and
I truly do look forward to listening and learning and
understanding your perspective.
I hope this can also be a candid dialog about some of the
respect and traditions of this country.
With this, I again want to thank the chairman for holding
this hearing today in discussing H.R. 2517, the Domestic
Partnership Benefits and Obligations Act of 2009.
I would also like to thank Reverend Henry Gaston, Patrick
Walker, Donald Sadler and other members of the Ministers'
Conference of D.C. and vicinity for their presence and their
participation in this ongoing discussion. I look forward to
hearing from the various witnesses that we will today.
I, like most people in this country, am in favor of
preserving traditional marriage. To me, marriage carries a
direct religious significance in addition to other
connotations. But perhaps most significant to H.R. 2517 is that
the term ``marriage'' is also a legal matter, and a court of
law is involved in the marriage process. What we cannot do with
this legislation is create laws which are similar for different
people.
While we are told that because opposite-sex couples have
the option to marry, they're provided with similar benefits.
What I'm concerned about is trying to draw that distinction
into having an unintended consequence of actually offering and
creating a separate class or category of people that then would
obtain or be given rights above and beyond other people who
don't choose to participate in those lifestyle choices.
Whether or not a heterosexual couple is dating and living
together can meet all other standards except for the portion of
regarding the couple of same-sex status is of concern to me. If
they can, yet are not afforded the same rights, this bill is
directly discriminatory against heterosexual couples, and that,
to me, is one of the unintended consequences that I have a
serious concern and question, and I'd appreciate if the
witnesses would address.
Marriage by another name is of concern to me and I think
the majority of Americans. At the same time, I want to be
respectful of individuals and their rights to choose. And I
would just like to relay a very brief story that's very
personal to me in my Great Aunt Louise. She has since passed
away.
She was happily married for a long time. And yet when she
passed away, she ended up living with another women. It was not
necessarily an intimate relationship, it was not necessarily a
relationship that was other than based on the fact that she had
an economic need, she had a security need, there was a
friendship need, and yet I worry that maybe given the
definitions of where this legislation is trying to go, that if
she had been a Federal employee, that there would be other
people that get benefits above and beyond where she had been.
And I also worry that heterosexual couples who have made a
decision not to get married would be discriminated against
along the way.
I also have concerns about fraud and abuse, the ability to
enforce these types of things, the costs that will be
associated with them. I think these are all valid points. At
the same time, I think we can approach this with a moral
attitude that says we want to do what's right for people and
for individuals, but also have a respect for the traditions of
this country that marriage, defined as a marriage between one
man and one woman, is something that this country feels
strongly about. And I do as well.
So with that, I look forward to hearing, not so much
speaking. I thank the chairman and look forward to hearing your
testimony, and I yield back the balance of my time.
Mr. Lynch. Now I would like to offer 5 minutes for an
opening statement to the Honorable Tammy Baldwin, the lead
sponsor of this measure.
STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WISCONSIN
Ms. Baldwin. Thank you, Mr. Chairman, and thank you,
Ranking Member Chaffetz and members of the subcommittee for the
opportunity to testify today at what is a very historic
hearing.
I also want to thank OPM Director John Berry for taking the
time to testify in support of this legislation and wish to
thank Ambassador Guest and all of our distinguished panelists
today for their leadership.
As my colleagues on this committee know, the Federal
Government employs more than 1.8 million civilian employees,
making it the Nation's largest employer. Historically, the
Federal Government has been a leader in offering important
benefits to its employees. But today, we are lagging behind,
and this is particularly true regarding the extension of
benefits to employees with same-sex partners.
As it stands, some Federal employees do not receive equal
pay and benefits for equal contributions. And the government is
not keeping pace with leading private sector employers in
recruiting and retaining top talent. Indeed, a large number of
America's major corporations, as well as State and local
governments and educational institutions, have extended
employee benefit programs to cover their employees' domestic
partners.
These employers include top American corporations such as
GE, Chevron, Boeing, Texas Instruments, Lockheed Martin, and
American Airlines, whom you will hear from later this
afternoon.
Under the Domestic Partnership Benefits and Obligation Act,
a Federal employee and his or her same-sex domestic partner
would be eligible to participate in Federal retirement
benefits, life insurance, health benefits, Workers
Compensation, and family and medical leave benefits to the same
extent as married employees and their spouses.
These employees and their domestic partners would likewise
be subject and would assume the same obligations as applied to
married employees and their spouses, such as antinepotism rules
and financial disclosure requirements.
I want to make very clear that this bill contains strong
antifraud provisions, requiring employees to file an affidavit
of eligibility in order to extend benefits to their domestic
partners. And this is significant, especially considering that
we do not require married employees to show documentary
evidence of their marriages when claiming spousal benefits.
The penalties for fraudulently claiming a domestic
partnership would be the same as penalties for fraudulent claim
of marriage. For example, intentional false statements on a
Federal Employees Health Benefits form is punishable by a fine
of up to $10,000 and imprisonment up to 5 years.
Mr. Chairman, I appear before you today both as the lead
author of this legislation, but also as a lesbian Federal
employee who has been in a committed relationship with my
partner, Lauren, for over 13 years. Over the years, Lauren and
I have examined the differences between my benefits and my
ability to provide for her compared to the benefits enjoyed by
my straight, married colleagues in Congress.
Some quick number crunching would demonstrate that the
difference between my health benefits and yours just with
regard to that benefit alone over the course of my 10 years in
Congress is measured in five figures. This is a significant
inequality, and heaven forbid anything would happen to me, but
Lauren would not be eligible to receive the survivor annuity
from my pension nor health insurance survivor benefits.
Unlike the spouses of my colleagues, Lauren is also not
currently subject to any of the obligations related to my
Federal service. I find this also disturbing.
All Members of Congress file annual financial disclosures.
Married Members must file important information about their
spouse's income, investments, debts, gifts received, etc.
Surely, the public interest requires that these obligations
also apply to partners of gay and lesbian office holders.
Last month, as you mentioned in your opening statement, Mr.
Chairman, President Obama signed a Presidential Memorandum on
Federal Benefits and Nondiscrimination which directs the Office
of Personnel Management and the State Department to extend
certain benefits to the same-sex partners of Federal employees
within the confines of existing Federal law. Although the
memorandum is an important step in providing same-sex partners
of Federal employees with benefits already available to spouses
of heterosexual employees, it falls short of providing the full
range of benefits.
President Obama recognized and acknowledged that fact when
he signed the memorandum calling it just a start. He went on to
say that, as Americans, we are all affected when our promises
of equality go unfulfilled. President Obama recognized that
full extension of benefits will require an act of Congress and
proclaimed his strong support for the legislation that you are
reviewing today.
Gentlemen, thank you again for this opportunity to review
the bill and to testify before the committee.
Mr. Lynch. Thank you.
[The prepared statement of Hon. Tammy Baldwin follows:]
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Mr. Lynch. Next, I'd like to introduce Mr. John Berry,
who's the Director of the U.S. Office of Personnel Management,
which manages the Federal Government's Civil Service employees.
Prior to Mr. Berry's appointment, he was the Director of the
National Fish and Wildlife Foundation and the Director of the
Smithsonian Zoological Park.
Mr. Berry, you're recognized for 5 minutes.
STATEMENT OF JOHN BERRY, DIRECTOR, U.S. OFFICE OF PERSONNEL
MANAGEMENT
Mr. Berry. Thank you, Mr. Chairman. It's an honor to be
back with you today. And, Congresswoman Baldwin, thank you for
your leadership on this issue.
It is an honor to be here to represent on behalf of the
President and his administration our strong support for H.R.
2517. This critical legislation will provide health, life and
survivor benefits to same-sex domestic partners of Federal
employees. I applaud Congresswoman Baldwin and the many
cosponsors of H.R. 2517 for introducing this bill and you, Mr.
Chairman, and the Members for hosting this hearing today.
Both the White House and the Office of Personnel Management
wholeheartedly endorse the passage of this legislation. In my
written testimony for the record, Mr. Chairman, I've also
mentioned some technical fixes that we're seeking, and I will
make all of my staff available to you and the committee staff
to work with you to provide any support that may be of
assistance in addressing those corrections.
At my confirmation hearing, Mr. Chairman, I said two of my
primary goals as the Director of OPM would be, first, to make
the Federal Government the country's model employer, and the
second was to attract the best and the brightest Americans to
Federal service. The passage of H.R. 2517 is essential to
accomplishing both of these goals.
Under current law, the Federal Government cannot offer
basic benefits like health insurance, life insurance, dental or
vision insurance to domestic partners of our gay and lesbian
Federal employees. This policy undermines the Federal
Government's ability to recruit and retain the Nation's best
workers.
Historically, the Federal Government has in many ways been
a progressive employer. In this case, however, we have fallen
behind the private sector and 19 States, including Alaska and
Arizona. Almost 60 percent of the Fortune 500 companies and 83
percent of the Fortune 100 companies already offer this benefit
to their same-sex domestic partners.
These companies include, as Congresswoman Baldwin
mentioned, American Airlines, who is here today--and I commend
their leadership in that regard--on the next panel, but also
companies that you might not expect: Chevron, Food Lion, Archer
Daniels Midland, Lockheed Martin, many, many others.
The Federal Government simply does not effectively compete
with these companies for every talented person; we fail to
offer comparable job benefits to our employees. And, in fact,
Mr. Chairman, if I could just add, many of these companies are
in direct competition with us. We spend quite a bit of money
doing security clearances on employees, and after they have
that clearance, that clearance goes with the employee, not with
the position. And so, essentially, if an employee can be
recruited away, these are the kinds of tools where we can
invest a lot of money, and then that employee walks out the
door to a Lockheed Martin and others who need employees with
security clearances. We ought not allow that uncompetitive
edge.
The President, as Congresswoman Baldwin has already
mentioned, took an important first step toward addressing these
shortfalls when he signed the memorandum last month directing
all Federal agencies to extend benefits to same-sex domestic
partners of Federal employees to the extent now permitted by
law. But as the President noted when he issued this, this
legislation is needed to offer gay and lesbian Federal workers
true equality and benefits and ensure fairness in the
workplace.
I'd also note that the cost of extending these benefits to
same-sex partners is negligible. Additional premiums for
providing life, dental and vision insurance to same-sex
domestic partners will be borne entirely by the gay and lesbian
employees who enroll their partners in those benefit plans.
Adding domestic partner health insurance and survivor benefits
for both Federal workers and retirees would cost approximately
$56 million in the year 2010. This marginal increase equates to
about two-tenths of 1 percent of the entire cost to the
government of our Federal employees health insurance program.
Simply put, extending benefits to same-sex partners is a
good, practical, bottom-line business decision, and it allows
the Federal Government to retain our competitive edge in the
21st century. This legislation is a valuable business
opportunity for the Federal Government to enhance our
recruitment and our retention efforts. And just as important,
this bill shows that we recognize the value of every American
and their families and their relationships and are committed to
the ideal of equal treatment under the law, as our Founders
envisioned.
Mr. Chairman, thank you for this opportunity, and I look
forward to answering any questions the committee might have.
[The prepared statement of Mr. Berry follows:]
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Mr. Lynch. Thank you. Great to have you up here again
before our committee. You're a frequent witness here, and again
we appreciate you, especially under today's circumstances.
I'm going to allow myself 5 minutes for a first round of
questioning, and the way Congress works, as you both know very
well, is that we usually have to be in five different places at
the same time. So as Members come in and leave, I'll afford
them an ample and full opportunity to ask questions at this
hearing.
And because we have so much going on, I'm going to give the
other members of the panel an opportunity to submit questions
to you both in writing, and I'll say, in 5 days we'd like to
have the responses to those questions if they're offered.
[The information referred to follows:]
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Mr. Lynch. Ms. Baldwin, currently there are three States
that recognize same sex marriage. That's Massachusetts,
Connecticut, and Iowa. Another three States, Vermont, Maine,
and New Hampshire, will begin to recognize same-sex marriages
in the next 6 months, based on legislation that has recently
passed. And while the process in California is still somewhat
in flux; marriages performed there between June 16, 2008, and
November 4, 2008, are currently recognized by that State.
There are, of course, Federal employees in each of those
States, and some of them may have had same-sex spouses.
However, the Federal Government cannot recognize these
marriages because of DOMA, the Defense of Marriage Act, and
these employees, therefore, are not eligible for the benefits
provided to Federal employees with opposite-sex spouses.
My question is, how are those folks going to be affected by
your legislation? Is H.R. 2517 intended to cover those
employees as well?
Ms. Baldwin. The way this would work, the Federal employee
who is in a same-sex partnership, whether they are married, in
a marriage recognized at their State level or not, would have
to file an affidavit of eligibility relating to their domestic
partnership in order to receive the benefits that are being
proposed in the bill before you. In terms of having complete
Federal recognition of the marriages in those States, that
would require a separate act of Congress, one that I support
strongly, which would be repeal of title 3 of the Defense of
Marriage Act, legislation that I expect to be offered by
colleagues later in this session.
But the way this legislation would work in practice
recognizes the fact we have Federal employees around the world,
in every State of the Union, and that the States will go at
different paces in terms of recognizing marriages. And so it
made much more sense to create this mechanism to provide the
employment fringe benefits, and that's what this bill is
limited to.
I would note in addition to your iteration of States that
have enacted recognition of marriage, two additional
jurisdictions, New York State and the District of Columbia,
have approved, either by executive order or by act of the
Council, to recognize same-sex marriages performed in other
jurisdictions. So they sort of add to the number of
jurisdictions that at the State or local level will recognize
marriage.
Mr. Lynch. Thank you. And you're right; I think the action
here in D.C. will come before the committee in some form. I
know that the City Council has approved that measure as well.
Director Berry, in his June 17th memorandum, President
Obama directed you and the Secretary of State to begin the
process of extending some Federal benefits to qualified same-
sex domestic partners of Federal employees. Can you give us an
update on how that is going, even though the limited portion
has gone forward? Do you see any problems in this? How is it
proceeding?
Mr. Berry. No, Mr. Chairman. I think that's going along
well. We are well on schedule to stay within the 90 days that
the President has established for us to issue and to come out
with any regulations that would be required.
We are going to be issuing guidance to the Federal agencies
to assist them. OPM and State have done a very thorough review
of our processes and code involved, but we did not have the
opportunity or the time to do that.
For example, the General Services Administration is the
agency charged with relocation benefits, so that a Federal
employee's move, how that is handled, is through the General
Services Administration. So, for example, we're asking each
agency to do a thorough review of their law, and that's what
the President has asked. Then we'll be collecting that
information and collating it and getting back to the President
within 90 days.
We just had the Chief Human Capital Officers monthly
meeting yesterday, and that was on our agenda, and so we
discussed that in full. Everybody is going through and going
forward with their process. So I think we're right on schedule,
Mr. Chairman.
Mr. Lynch. Thank you. Let me followup then.
Your testimony earlier mentioned the fact that the bill
would exclude annuitants with same-sex partners from electing
benefit coverage. Is OPM's position that these individuals
should be covered by the bill or not?
Mr. Berry. Yes, sir, that they should be, and in fact, the
dollar estimate that I gave you actually presumes you would
make the corrective change to include annuitants.
Mr. Lynch. Explain that. There is a possible funding offset
here, right?
Mr. Berry. Well, in the short term, there is a savings to
the government because Federal employees who are retiring or
have recently retired would take a lower payment in exchange
for having the survivor benefit for their annuitant, for their
partner, domestic partner, just as it is with the spouse now.
So, short term, there is a savings. In the long term, there
would be a slight increase, but that is factored into the
number that I gave you in my testimony, the $56 million.
And if I could just check--that is correct. OK.
Mr. Lynch. So what you're saying is that they don't have
the option right now to reduce, to seek the lower----
Mr. Berry. No, sir.
Mr. Lynch. Like myself, if you want to include your spouse,
you take a lower benefit, and right now, for gay and lesbian
employees of the Federal Government, they're all maxing out
right now. They're all taking the highest option because
they're forced to do that?
Mr. Berry. Absolutely.
Mr. Lynch. And if they take the lower amount, then it will
cause a savings for the government.
In his memorandum, President Obama reaffirmed the civil
service merit system principle that makes it unlawful to
discriminate against Federal employees on the basis of factors
unrelated to job performance, including sexual orientation or
gender identity, and President Obama directed you to issue
guidance to Federal Agencies requiring compliance with this
principle.
How has that proceeded?
Mr. Berry. Mr. Chairman, we're again right on schedule with
that. Our counsel's office is working on preparing that, and we
will meet the 90-day standard that the President has
established.
My hope is, we actually have it done in less than 90 days,
but we will definitely be within the 90-day period the
President has set up.
Mr. Lynch. Now, I do know that there was a situation over
at the Office of Special Counsel, and I want to ask you about
that.
As you know, the U.S. Office of Special Counsel is
responsible for protecting Federal employees from
discrimination based on sexual orientation and for enforcing
the cornerstone of the merit system.
However, the recently departed Special Counsel, who is
still being investigated by the OPM IG, the Office of Personnel
Management Inspector General, refused to do so because of
personal ideological beliefs. Unfortunately, the President has
been slow to nominate a new Special Counsel, which means
enforcement of this right continues to be somewhat of a gray
area, I imagine.
You have been in touch with the acting leadership of the
OSC, the Office of Special Counsel, about the issue, and I need
to know where that sits right now.
Mr. Berry. Mr. Chairman, I am very honored and extremely
pleased that my General Counsel now at the Office of Personnel
Management was a previous Special Counsel and held that
position during the Clinton administration, and is an
outstanding attorney and one of the brightest legal minds with
Federal employees' and retirees' issues in this town. I know
that she is in close contact with both the Special Counsel's
Office and the Merit Systems Protection Board.
They are independent agencies, sir, so OPM does not
directly affect or control either their budget or their
staffing, but we do closely coordinate in terms of logic,
rationale, and actions.
Right now, the President has made clear in that memorandum
that it is the law of the land that any nonwork-related
irrelevant factor is inappropriate for consideration in the
Federal workplace, and that's going to be the responsibility
for whoever the Special Counsel that he appoints to enforce as
the prosecutor, and the Merit Systems Protection Board, as the
adjudicating agency, to rule on those actions. But the
President has made clear for all of the management of the
Federal Government--senior executives, managers included--that
he expects the law to be enforced.
Mr. Lynch. Very good.
I'm not sure if the distinguished gentleman from northern
Virginia, Mr. Connolly, has any questions at this point. Or do
you need a minute?
Mr. Connolly. Thank you, Mr. Chairman.
I ask unanimous consent that my opening statement be
entered into the record.
Mr. Lynch. Without objection, so ordered.
[The prepared statement of Hon. Gerald E. Connolly
follows:]
[GRAPHIC] [TIFF OMITTED] T2628.041
Mr. Connolly. Mr. Chairman, in my district, I represent
about 56,000 Federal employees and maybe as many retirees and
lots of Federal contractors; and most of those Federal
contractors and most of the large employers in my district, in
fact, already have domestic partner benefits programs because
they understand how important it is for recruitment and
retention.
And I wonder--especially, Mr. Berry, but also you,
Representative Baldwin--my comment on that whole issue of the
challenge of recruitment and retention as we move forward,
we've got a lot of Federal employees ready to retire in the
baby boom generation. How are we going to replace them and
retain those we replace them with if, in fact, we don't include
this as part of the benefits portfolio moving forward?
Ms. Baldwin. You raise a very, very important point about
attracting the top talent for government service. And I don't
have any aggregate data for you, it's hard to pin down, but I
have some very powerful anecdotal information from my home
State of Wisconsin, which just last week, by the way, enacted a
domestic partnership registry and will be shortly extending
those benefits to State employees.
I represent a district with a world-class university, the
University of Wisconsin-Madison, and I have received as a
Member of Congress panicked calls from chairpersons of
departments at the medical school saying, Is there anything you
can do about domestic partnership; we have the chance to land
one of the most world-respected pediatric oncologists. And
they're saying if their domestic partner isn't recognized with
benefits, they're going to accept an offer at another world-
class university.
We've had a researcher from the engineering school leave
the State with an NSF grant that totaled more than it would
have cost to implement the domestic partnership benefits State-
wide in Wisconsin because of the indignity of the unequal
treatment in employment.
So I think there are countless anecdotal accounts of why,
when you can't offer these benefits, you lose top talent.
Mr. Berry. If I could, I'll just add to and concur with the
comments of the Congresswoman.
This is essential in maintaining our competitive edge in
the 21st century, and the Federal Government spends between
$3,000 and $15,000, depending upon the complexity of the
security clearance, on our employees now. As you well pointed
out, Federal contractors who require those clearances, who are
desperate to get them and who have a hard time getting them, by
providing this benefit, essentially the government incurs the
cost of doing the evaluation on the Federal employee, does the
initial training of that employee, and all of the expense
associated with that, and then that employee is sucked away by
either the Lockheed Martin or General Dynamics or whoever
provides that benefit, if this is a concern in that case.
I look at this as a bottom-line business judgment. This is
about recruiting and retaining, and not only do we need to be
effective in recruiting across the Nation, but we've got to
retain the employees, especially those employees with security
clearances that we're at risk of losing because of this
uncompetitive situation.
Mr. Connolly. OK.
Mr. Chairman, I just want to say I completely concur, and I
think that's the correct way to frame the issue for the Federal
Government moving forward: How will we stay competitive in the
employment market when we are competing with lots of large
employers who, in fact, provide these benefits?
So I'm going to be an enthusiastic supporter of H.R. 2517
and encourage my colleagues to do the same.
I thank the Chair.
Mr. Lynch. The Chair now recognizes the gentleman from
Utah, Mr. Chaffetz, for 5 minutes.
Mr. Chaffetz. Thank you, Mr. Chairman. I started to chat
with you on the floor about this, but as I read this bill,
doesn't it discriminate in terms by giving same-sex couples
greater Federal benefits than opposite-sex couples who may not
be married?
Ms. Baldwin. The option exists for opposite-sex couples to
marry in every State of the Union, and so it is easily cured if
they want to seek those benefits for them to enter the
institution of marriage. Aside from the States that the
chairman mentioned, that opportunity does not exist in all
States for same-sex partners, and to the extent that it does
exist in any States, the Defense of Marriage Act, which is
currently embodied in Federal law, would prohibit the Federal
Government from recognizing those marriages in those States
that do recognize it.
So, in other words, we have to come up with another
mechanism in order to offer fringe employment benefits--this is
what we're talking about in this bill--to the same-sex partners
of Federal employees.
Mr. Chaffetz. So a heterosexual couple is not going to get
the same or a man or woman living together is not going to be
able to get the same benefits as somebody who is a same-sex
couple?
Ms. Baldwin. Should they desire those benefits, they would
have the option of marrying, and that is a choice open to them
but not open to the same-sex partners of Federal employees.
Mr. Chaffetz. Mr. Berry, did you care to comment on that?
Mr. Berry. I would reinforce what the Congresswoman has
said. I think it is an effective alternative there, whereas the
same alternative does not exist for same-sex couples.
Mr. Chaffetz. What is the determining factor? Intimate
relationships? I mean, how are we going to define and enforce?
Mr. Berry. Well, as required in the legislation, it is an
affidavit, and it has substantial penalties. You know,
currently our Inspector General at the Office of Personnel
Management is responsible for enforcing fraud----
Mr. Chaffetz. So would you want heterosexual couples to
just fill out an affidavit? Why wouldn't they just do that?
Mr. Berry. Well, under this case it is defined specifically
in the legislation as same-sex, but it does--that affidavit
has--is criminal perjury. It could be--it's enforceable not
only----
Mr. Chaffetz. But why can't you just fill out an affidavit:
We've got a relationship, we plan to live together?
Ms. Baldwin. As we said earlier, the option is available
for a heterosexual couple to marry, and then these employment
benefits would flow automatically on the basis of that marriage
and that spousal relationship.
Because of the Defense of Marriage Act, even those same-sex
couples who are afforded the right to marry in certain States
would not have those marriages recognized currently at the
Federal level. And so this is a mechanism that allows people
like myself who've been in a 13-plus-year relationship to be
able to provide for my family.
Mr. Chaffetz. What percentage of people do we think are
going to participate? The number I've heard is like 1.5
percent. Do we have any sort of cost estimate here?
Ms. Baldwin. You will have a witness later who is very
expert on this topic. Obviously, Director Berry has some data
already. I haven't seen a percentage, but roughly 30,000
Federal employees. Is that close to yours?
Mr. Chaffetz. Do you have any idea what percentage?
Mr. Berry. Now these are 2003 numbers, Congresswoman, but
of the 1.8 million retirees, it's estimated that 29 percent,
5,400, are expected to elect the domestic partnership survivor
benefit. And that's the basis on which----
Mr. Chaffetz. Sorry to cut you off. I've got, like, seconds
to go. I appreciate that you've highlighted the statistic that
I was after.
And Mr. Berry, the Office of Personnel Management stated in
the Senate Homeland Security and Governmental Affairs hearing
on September 24, 2008--and I recognize how new you are to this
position, ``that they do not serve as a central clearinghouse
for all Federal employees and, therefore, would not have the
records nor resources to collect and maintain such
affidavits.''
Do we have any sort of assessment as to how huge the
bureaucracy is going have to become in order to not only
maintain but to service those, to enforce those?
I mean, this creates a Pandora's box of problems it seems
to me.
Mr. Berry. No, Congressman, this is actually going to be
fairly easy to administer. Each of the agencies would just keep
the affidavit on file. That would be available for
investigation against fraud by any inspector general. If fraud
was discovered it would be referable to the U.S. attorney.
We see no additional cost associated with this, and the
numbers we're talking about and the experience of the State and
the private sector in this regard show this out over the past
10 years that there is not a huge increase, there is not a huge
cost, there is not a huge paperwork burden. So we do not
anticipate any of the Federal Government in this, and this
administration is ready to implement it immediately.
Mr. Chaffetz. In wrapping up, Mr. Chairman, I'd just
appreciate if you'd go again to look at that September 24,
2008, because I feel like the OPM was somehow compelled to have
a fairly substantive approach to this in saying they are not--
anyway, go back and look at that quote.
I'd like to better understand why you come to this ``this
is easy'' conclusion. In 2008, they said, ``No, this will be
exceptionally difficult.''
So, with that, I'll yield back the balance of my overtime.
Mr. Lynch. OK. Let me just followup on some of what the
ranking member was asking about.
I have very, very good staff here and I probably know more
about this than I ever needed to know, but they showed me some
studies that have been done of all the companies out there in
the United States--some are international firms--that provide
domestic benefits, same-sex couples. And they surveyed all
those companies, and they tried to figure out, what's the take-
up utilization rate among those same-sex couples that could
have, and it was very, very low.
The ranking member was not far off; it was around 2
percent, very small. And I wonder about that in the Federal
employee context, where you have a situation where someone's
going to have to file an affidavit, and as the Director
mentioned, under the pains and penalty of perjury--some very
serious penalties here, $250,000, 5 years in prison, fairly
dramatic consequences for fraud.
And also, if you put the overlay of what you had mentioned
before about security clearances, you're going to have
employees here who, I think, might be even more reluctant than
in the private sector to take up these benefits. They don't
want to file that affidavit with their employer, with their
Department.
Now, my understanding was that the affidavits would be
filed with OPM. Is that correct, or is it with the individual
Departments?
Mr. Berry. As it is now written, I believe Congresswoman
Baldwin has recommended it be filed with OPM.
One of the technical amendments we were going to urge,
because each of the agencies follow their own payroll and
retirement paperwork, until the person's retired--once they're
retired, that paperwork would come to us. So, for existing
annuitants, we would cover that; but otherwise, for active
employees, it would be with each Bureau and Department.
That's what we would recommend as a technical amendment to
improve the legislation.
Mr. Lynch. OK. I don't believe that's a hostile amendment,
is it?
Ms. Baldwin. No, sir. That would be very welcome.
Mr. Lynch. OK. Let me ask you something else.
Earlier in your testimony, Director Berry, you said
something about retirees utilizing same-sex benefits. However,
my reading of the bill, this will just be for active employees,
and so retirees would not be eligible. Am I misreading that?
Ms. Baldwin. You are not misreading that, but as Director
Berry indicated, in their review of the legislation, OPM has
come up with a number of technical recommendations, and that
would be one. And as you heard earlier, it has some near-term
offsetting effects in terms of the cost of the bill. So it
would be something that we should certainly consider.
Mr. Berry. Mr. Chairman, as a technical amendment, we would
recommend the inclusion of existing annuitants and allowing
that program for them. And so we would be happy to work with
your staff to achieve that.
Mr. Lynch. That's something that's new to me right now, but
that's why we have hearings.
Let me just say this. I know there has been a doctrinal
priority to try to treat active employees and retirees the
same, and that's been something that the Federal Government has
tried to do as an employer generally. I have to chew on that
for a little bit and figure out what that really means. It's
new. It's obviously just come up. But we'll try to work with
you again.
I'm sure I've exhausted my 5 minutes.
Mr. Connolly, you're recognized for 5 minutes.
Mr. Connolly. Well, I wanted to ask Mr. Berry, from his
point of view, given his responsibilities, what kind of
feedback are you getting from Federal agency heads, in terms of
the value of this as a potential tool for recruitment and
retention?
Mr. Berry. There's no question, Mr. Connolly, this is a
very valuable tool. As has been noted in the testimony, 83
percent of the Fortune 100 companies in our country today
provide this. Those companies are not doing this out of social
work or charitable purposes. They are doing it because it is a
valuable recruitment and retention tool in their personnel
portfolio.
So they are not motivated here on some social agenda. They
are not restricted by some of the discussion that the Federal
Government is encumbered by. They're making this as a bottom-
line business assessment and judgment, and that is specifically
the position.
As I talk with Cabinet Secretaries, the President, and the
White House staff, it is clear, this will be a helpful tool. It
is not going to answer all the problems of the Federal
Government; we have many other issues to deal with. As you
know, hiring reform is going to be one. I was talking with
Congressman Chaffetz about our efforts to increase our hiring
of veterans. We have many efforts we're going to be
undertaking.
But this, again, is an important tool that is going to help
us maintain our cutting edge with the private sector here in
the 21st century.
Mr. Connolly. And I would just observe in closing--because
we have to vote, I know, Mr. Chairman--I find it odd that
somebody would even suggest inferentially that this benefit
provision, could itself constitute discrimination against folks
in opposite-sex relationships when, of course, the screaming
contradiction of that question is that marriage is available to
people in that situation, and it is not in all but a handful of
States to those in same-sex partnerships.
And so that's why you have to, as Representative Baldwin
indicated, look at other ways of trying to address the issue of
fairness in the provision of benefits. And I certainly look
forward to expanding that conversation with Mr. Chaffetz and
his colleagues in the weeks and months coming.
I thank the Chair.
Mr. Lynch. I thank the gentleman.
All right. As you know, we have votes, and I'm going to
have to allow the witnesses to go up and vote.
Here's what I'd like to do. We'll go and do votes. I don't
want to dismiss this panel. When we come back, I'm going to
maybe have a couple more questions, and then I'll give you
each, say, 3 minutes because we have not exhausted all the
questions that could arise on this issue; and I'll ask you to
just try to fill in those gaps that we may have missed in our
questioning.
And then I'll pull the next panel, OK?
Thank you. So we're in recess. They tell me it's just one
vote, so we might be back in 20 minutes. OK.
[Recess.]
Mr. Lynch. Good afternoon and welcome back. As I had said
before the break, I did want to offer one more question.
Just in terms of eligibility, I understand in reading the
bill, that Ms. Baldwin has presented, it defines same-sex
beneficiaries as being, ``unmarried,'' and of course, now with
the situation in Massachusetts and Connecticut and a bunch of
places where, at least according to those States and between
some States and the District of Columbia, those folks are now
married. So it would appear that it might be the unintended
consequence of this legislation that same-sex couples that are
married, now would not be helped, but would be hurt by this
bill.
Now, I've gone over it with our own counsel. They have
instructed me that since the Federal Government does not at
this point recognize marriages other than traditional
marriages--one man, one woman--that from the Federal
Government's standpoint everybody outside that group is
unmarried, period.
So it's really not a conflict is what it's saying. But to
get it on the record, I just wanted to ask the Director and the
lead sponsor of this bill whether it is your understanding that
is the case as well.
Mr. Berry. Mr. Chairman, thank you.
It is my understanding that what you have just described is
the situation. But to be extra sure, because obviously in light
of this, our counsel would like to work with yours and the
counsels from the Department of Justice to make sure that we
resolve this issue so that we do not have any unfavorable
treatment for either Federal employees or retirees in those
States that do use that term as an unintended consequence.
So we would be happy to work with the author and the
committee to make sure that we draft this correctly to ensure
equal treatment in those cases.
Mr. Lynch. OK.
Ms. Baldwin.
Ms. Baldwin. I would associate myself with the comments of
Director Berry with regard to this point.
There's certainly a strong reason why that language
originated in the bill in earlier iterations before any State
had recognized same-sex marriages. I think your legal counsel's
analysis is accurate, but I think additional clarity, because
of the progress being made in a number of States, is warranted.
Mr. Lynch. OK. That satisfies me.
In that respect, I now yield 5 minutes to the gentleman
from Utah, Mr. Chaffetz.
Mr. Chaffetz. Thank you, Mr. Chairman.
I have a growing concern about how we can possibly define
the terms and enforce the terms that constitute who would be
eligible and who wouldn't be eligible. I don't know how in the
world it can be enforced. I don't have any idea or clue how it
can possibly be defined. It certainly hasn't been defined in
the legislation from my perspective.
Would you care to address that.
Ms. Baldwin. Well, I would hope that the fact that
literally thousands of private sector corporations and State
and local units of government have seen fit to enact domestic
partnership registries and offer employment benefits would give
some comfort to the gentleman in terms that it can be managed,
and it is being managed across this country very well.
We lag behind in the fact that the Federal Government does
not offer these employment benefits, but I think that the
legislation very carefully sets forth the eligibility
requirements.
The affidavit is an additional protection against fraud.
No, we don't want people defrauding the Federal Government
either to purport they're in a marriage that they're not in or
to purport they're in a domestic partnership that they're not
in. And so these provisions have been specifically added as
strong fraud prevention language.
But I would say you should take comfort in the fact that
this is done across the country in other jurisdictions of
government as well as the private sector, and it's working very
well.
Mr. Chaffetz. Mr. Berry, one of the key or prime things
that you cite as a reason to do this is the need to attract and
retain employees. Where in the Federal Government do we have a
lack of applicants? Because I guarantee I can get some
applicants to probably show up tomorrow. Where are we lacking
in terms of being able to recruit people?
Mr. Berry. Congressman, this is a case you would have to
look at each specific case.
Mr. Chaffetz. Can you name one where we don't have----
Mr. Berry. Oh, absolutely. Right now, we give direct hiring
authority for veterinarians, doctors, nurses, engineers. The
list goes on and on because we cannot effectively recruit in
those professions, and so right now we don't even require
competition. If a Federal agency finds a nurse that walked in
the door and proved she is qualified, they can hire her in the
morning because we can't find them. We can't fill those jobs,
and these positions are significant. They're one of our
greatest challenges, and so in each of these areas we are
attempting to go out there with sharp elbows and compete with
private sector, university settings, State governments, and
local governments, so that we can provide critical services.
You know, veterinarians at the Food and Drug Administration
right now, we do not have enough to do the food safety
management that we need to supply for the country. These are
tough challenges we face as the employer for the country, and
going to allow us--I'm not saying it's going to solve that
problem entirely, but for the same-sex partner, the person who
has a partner who is now working for Archer Daniels Midland and
has domestic partner benefits, and who is a veterinarian, I in
no way am going to have that person be able to say, they're
going to move, relocate, and lose the health insurance for
their partner if that's their condition of Federal employment.
This is going to allow me now to attract that person, or at
least, be competitive.
So I think it's going to be a very powerful tool for us.
It's not going to solve all the problems. I'm not portraying
this is a panacea, but it's going to be one important tool in
the tool belt.
Mr. Chaffetz. I guess I would be very curious to see a list
of where you have some gaping holes. I think the American
people--I find the overall sweeping generalization--and,
granted, we have limited time here. To say that we have these
big, gaping holes when our unemployment is north of 9.5
percent, I think if we're not sharing that with the American
people, we ought to be. I don't see it. I'd love to see that
list.
Mr. Chairman, as we wrap up this panel here, I know we have
others waiting, I appreciate your passion and commitment to
this.
I believe that in the traditional definition of marriage,
as between one man and one woman, there are benefits and there
are things that we do as a people to encourage that
relationship. And I stand proud on that, and I don't think we
should try to create something that is under a different name.
That's my own personal opinion. I know your opinion would
differ, and that's what makes this body so great.
I hope, Mr. Chairman, as this moves forward, that we have
proper time to have this debate in greater numbers and that
there isn't some procedural thing that would get in the way of
us being able to vote in a broad sense as this moves forward.
So, again, I thank you both.
I've gone over my time, and thank you, Mr. Chairman.
Mr. Lynch. I welcome the gentleman's remarks. I know we
have not, as I said before, exhausted the full range of
questions that might be offered, and with our continual
interruptions on the floor, it's made it even more difficult.
What I'd like to do, though, is offer each of you 3 minutes
if there are areas in this bill that you would like to amplify
or issues that you feel have not been appropriately addressed,
I give you an opportunity to do that now in closing.
Ms. Baldwin, you're recognized for 3 minutes.
Ms. Baldwin. Thank you, Mr. Chairman, for this very
generous allocation of time to review this bill with the
committee and exchange back and forth with questions. I just
want to summarize with a couple of points.
In many ways, I regard this as an issue of equal
compensation both in pay and benefits, but predominantly, we're
looking at benefits for equal work where you have gay or
lesbian employees of the Federal Government who are in
committed, lifelong relationships. They have families they wish
to protect, and they are not receiving the tools to be able to
provide those protections, be it health care, survivor benefits
that we've talked about, family and medical leave.
You'll hear later from Ambassador Guest about the
employment benefits related to those we ask to serve our
country overseas that are very important if you want to be able
to protect your family. And so, I regard this very much as an
issue of equal compensation for equal work where we have
identified a glaring discrepancy based merely on sexual
orientation.
I want to respond briefly to the ranking member's comments
relating to marriage versus the very limited scope of this bill
relating to fringe benefits.
Marriage, which we have long looked to the States to define
and regulate, is an aggregation of literally hundreds--in many
States, thousands--of benefits and obligations that inure to
those who are able to enter the institution of marriage. And so
I, in no way, view this measure, as limited as it is, as a way
to replicate marriage by another name.
And if you look even to the Federal level, I think it was
in either the late 1980's or early 1990's that a request for an
analysis of how many times the Federal code references spouse,
husband, wife, marriage--again, thousands of references, lots
of benefits and lots of obligations. This in no way replicates
that.
While I am a supporter of equal marriage rights, that is
not what we are here today to speak with you about. This is
much more a matter of equal pay and equal compensation and
benefits for those who arrive at the workplace and work at
their jobs diligently and deserve to have equal respect of
their employers.
Mr. Lynch. Thank you.
Mr. Berry for 3 minutes.
Mr. Berry. Mr. Chairman, thank you so much for the hearing
today, for your opportunity; and Congressman Chaffetz, for your
engagement and involvement. We appreciate your attention and
the courtesies that you have extended throughout the day.
I would just make a couple of quick points, just
underscoring the President's support for fairness across the
Federal Government for treating all employees equally. Also, as
the Director of OPM, for supporting it as an opportunity to
maintain our competitive edge.
Congressman, you're right, with the economy now, for many
Federal positions, we have an overabundance of applicants, but
we do face shortages in some critical areas that are very
important, and this will be one tool that will allow us to
maintain that.
And the economy isn't going to remain down forever, and as
we move forward in the 21st century. We have very complicated
jobs in the Federal Government, and they're essential to
protect the life, health and safety of our citizens. And it is
essential that we be able to both recruit and retain once we've
gotten and made a substantial investment in the best and the
brightest, and this will be one of those tools, just like the
rest of our health benefits packages are.
I'd also just like to mention, there is nothing in this
legislation that requires the repeal or even the amendment of
the Defense of Marriage Act. This is not an attempt to seek
that. Though the President has made clear he supports the
repeal of that legislation, it is not required for this
legislation. And I think it's important to remember that as
we're having this debate.
This is a debate about health benefits, life insurance,
vision, and dental. It's about a benefit package that we're
just trying to provide our employees fairly across the board.
It is not an attempt to redefine marriage. It is not an attempt
to overwhelm the Defense of Marriage Act. That is not required.
I would have to check this out, but one of the things in
terms of your questioning, Mr. Chaffetz, about whether we
extend this benefit to heterosexual couples actually might
entangle us in DOMA, whereas this legislation does not. And so
I think we would have to be careful of that because, as we
define or redefine those terms in that way, it might more
directly engage DOMA. This legislation now doesn't.
And so I think we're best in keeping it that way and
keeping it as a straightforward health benefit, employee
vision, and dental, and move forward with this as a competitive
tool for the 21st century.
So, with that, Mr. Chairman, I thank you very much and look
forward to working with you on the many technical amendments
we've discussed today. And thank you again for the courtesy
today.
Mr. Lynch. Thank you both, Director Berry, Representative
Baldwin. We appreciate your willingness to come before the
committee and help us with our work. We bid you have a good
day, and we want to welcome the second panel. Thank you.
Welcome. We will continue with this hearing. It is the
custom of this subcommittee to swear witnesses who will offer
testimony. Could I please ask you to rise and raise your right
hands.
[Witnesses sworn.]
Mr. Lynch. Let the record show that all of the witnesses
have answered in the affirmative.
I will offer a brief introduction of each of our witnesses.
Ms. M.V. Lee Badgett is currently the research director of
the Williams Institute for Sexual Orientation Law and Public
Policy at UCLA. Her research focuses on family policy issues
and on labor market discrimination based on sexual orientation,
race and gender. Ms. Badgett is also the director of the Center
of Public Policy and Administration at the University of
Massachusetts-Amherst, where she also serves as a professor of
economics.
Mr. Greg Franklin is the current assistant executive
officer of Health Benefit Services for the California Public
Employees' Retirement System [CalPERS]. In this capacity, Mr.
Franklin is responsible for purchasing health care for nearly
1.3 million CalPERS members at an annual cost of more than $5.5
billion.
Mr. Franklin is also responsible for the day-to-day
operations of the health benefits branch where he oversees such
offices as the Office of Health Plan Administration, the Office
of Employer and Member Health Services, the Office of Health
Policy and Program Support and the Division of Operation and
Infrastructure Support.
Ms. Carolyn E. Wright has served as the vice president of
Corporate Human Resources for American Airlines since May 2001.
Ms. Wright's responsibilities include strategy development and
program design in the areas of compensation, benefits,
retirement, leadership development, Workers Comp and
recruiting. Previously, Ms. Wright held the position of senior
vice president of Customer Services at American Eagle Airlines.
As the procedure within this committee, each of the
witnesses will have 5 minutes. I didn't explain it to the last
two witnesses because they're here so often. The box in front
of you will show a green light during the time which you're
invited to offer your 5 minutes of opening statement. When it
turns yellow, you've got 1 minute to sum up, and if it turns
red, your time for statement has expired.
So, Ms. Badgett, I'd like to welcome you to offer your
opening statements for 5 minutes.
STATEMENTS OF M.V. LEE BADGETT, RESEARCH DIRECTOR, WILLIAMS
INSTITUTE ON SEXUAL ORIENTATION LAW AND PUBLIC POLICY, UCLA
SCHOOL OF LAW; GREGORY A. FRANKLIN, ASSISTANT EXECUTIVE
OFFICER, HEALTH BENEFIT SERVICES, CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM; AND CAROLYN E. WRIGHT, VICE PRESIDENT,
CORPORATE HUMAN RESOURCES, AMERICAN AIRLINES
STATEMENT OF M.V. LEE BADGETT
Ms. Badgett. Thank you. Good afternoon, Chairman Lynch. As
an economist who has studied these issues for many years, I'm
grateful for the opportunity to speak today about H.R. 2517.
Today, I'd like to make four points about the need for the
bill and the budgetary implications of the bill.
First, you've already heard from the other witnesses, and
I'll just confirm from an economics perspective, that by
equalizing the treatment of same-sex partners of Federal
employees, this bill would put the Federal Government in the
mainstream of modern compensation practices. The shift has been
dramatic, it's been rapid and it will only continue. There will
be more and more employers who will offer these benefits,
putting the Federal Government farther and farther behind if
this bill is not enacted. I've studied the experiences in many
of these employers, and they have reported that the
implementation of domestic partner benefits has been quite easy
and the cost quite manageable.
The second point that I want to make is that the employees
who receive these benefits gain a great deal in terms of
security. They sign up for them to protect their family's
health and well-being. At least some of those family members
right now are quite likely to lack health insurance. A recent
study that I did found that 20 percent of people who are in
same-sex couples are uninsured, a rate that is almost double
that of married employees, and it's significantly higher than
the average in the United States; and this greater
vulnerability is, quite clearly, at least partly a result of
the employer's failure to offer domestic partner benefits. So
many Federal employees now may have family members who are not
covered by insurance at all.
Third, the cost of providing benefits to domestic partners
is small and manageable. Last year, I coauthored an independent
study that estimated the cost of extending benefits to the more
than 34,000 same-sex partners of Federal employees. We
identified that number from the American CommunitySurvey. We
estimated that providing benefits for nonpostal employees would
cost the Federal budget approximately $41 million in the first
year and $675 million over 10 years. These are cost estimates
that are quite similar to those of Director Berry.
The majority of these costs are concentrated in the area of
employee health benefits and retiree health benefits. We
predicted enrollment in health care plans would increase, but
by a very small percentage, approximately 0.55 percent, which
works out to being in our estimate roughly 14,000 employees.
As a result of this increase in enrollment, additional
health care benefits for the same-sex partners of Federal
employees--and here I'll just go ahead and include postal
service employees as well--and their kids would cost about $60
million in the first year. That's a very small percentage
increase, about 0.4 percent increase in health care spending
for Federal employees last year; and that increase is very much
in line with the experience of employers in the private sector
and the States and cities that have offered these benefits.
As you discussed in the last panel, there's some question
about retirees. We estimated--we assumed that Federal
employees, as they retire in the future, would be able to cover
their partners in the future as retirees. So we estimate that
the cost of health care benefits for those partners could
increase by $127 million over 10 years.
The retirement benefits themselves would have a very small
change in cost to the government. In fact, as was also
mentioned in the last panel, there would be a reduction in
annuity payments over the short term as Federal employees offer
survivor benefits for their same-sex partners, and that would
save approximately $108 million over 10 years. And I'll just
note that the findings of our study are not only in line with
the OPM figures, but also they're very similar to the
Congressional Budget Office's 2003 analysis of a similar bill.
The cost for all the other benefits are minimal, and
although they're not expensive, the ability to take family
medical leave or to enroll a partner in life insurance or long
term care insurance or to receive death and disability benefits
are quite important to those Federal employees who will take
advantage of those and can make a big difference in the lives
of their families.
My last point is that several factors will help offset some
of these costs, although some of them are hard to measure
precisely. One factor that I don't think has been mentioned yet
is that employees of same-sex partners will need to pay
additional Federal taxes on the imputed value of the benefits
they receive as employees if this bill were to pass. That would
offset some of the costs of the bill. Approximately $118
million in revenue over 10 years would be added back in.
And then the second factor, which you've heard a little bit
about is that the Federal Government is likely to see lower
turnover amongst its employees since the Federal employees who
have partners are less likely to seek employment elsewhere.
Lower turnover means lower cost of recruiting, hiring and
training new employees, and there are several studies that show
that domestic partner benefits do significantly reduce the
likelihood that employees will look for jobs in other places.
So I think this is an effect that is very real. It's hard to
measure; it's hard to actually calculate the cost impact, but
it's real.
So putting these pieces together suggests that some of
these gains will offset the very small cost of offering equal
benefits to same-sex partners. The experience of thousands of
employers offering these benefits in the United States today,
as well as existing research, support my conclusion that the
Federal Government can adopt and implement this new policy
easily and affordably.
Thank you.
Mr. Lynch. Thank you.
[The prepared statement of Ms. Badgett follows:]
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Mr. Lynch. Mr. Franklin, you're now recognized for 5
minutes.
STATEMENT OF GREGORY A. FRANKLIN
Mr. Franklin. Good afternoon, Chairman Lynch and Ranking
Member Chaffetz. I'm Gregory Franklin. I'm the assistant
executive officer for the Health Benefits Services branch of
the California Public Employees' Retirement System [CalPERS].
CalPERS is the largest public employee pension fund in the
United States, with assets of approximately $182 billion. We
administer retirement and health benefits for more than 1.6
million active and retired California public employees and
their families on behalf of the 2,600 California public
employers. As of June 30, 2008, we were paying more than $10
billion annually in benefits to 476,000 retirees and
beneficiaries.
CalPERS also administers a health benefits program that
covers nearly 1.3 million members, the employees and retirees
of the State of California, contracting local public agencies,
and special districts. We're the second largest purchaser of
employee health benefits in the Nation after the Federal
Government. We're the largest purchaser of employee health
benefits in California.
In 2000, a new State law, Assembly Bill 26, went into
effect that established a domestic partner registry at the
California Secretary of State Office. Under the law, partners
of opposite sex, if one of whom was over the age of 62, and
partners of same sex may register for domestic partnership.
Registration as domestic partners, however, does not confer any
rights upon the partners unless specifically provided by law.
Assembly Bill 26 also amended California's Public Employee
Medical and Hospital Care Act, which is administered by
CalPERS. To allow--to allow covered employers to offer health
benefits to domestic partners of its employees retirees as an
option, the State of California began health benefits to
domestic partners in January 2000. Some public agencies also
began offering health benefits to domestic partners as well.
In 2005, Assembly Bill 105, the California Domestic
Partners Rights and Responsibilities Act, became law. The law,
which was supported by the CalPERS board administration,
confers spousal rights on domestic partners, giving them
statutory rights to certain employee benefits, as well as
entitlement to continued health insurance coverage after the
death of a CalPERS member. The essence of Assembly Bill 205 put
domestic partners on equal footing with spouses relative to
employee benefits under California law.
Assembly Bill 205 mandated the provision of health
insurance coverage for domestic partners in the same manner as
provided to spouses, removing the issue from collective
bargaining process at the State level and eliminating local
agency discretion.
Of note is that the CalPERS long-term care insurance
program was exempt from this Assembly Bill 205 because the
program is governed by the U.S. Internal Revenue Code as a tax
exempt governmental plan.
And the Federal Government does not recognize domestic
partnerships. Allowing domestic partners to enroll in the long-
term care plan would, in effect, be enrolling persons who are
not eligible under Federal tax law and therefore threaten the
tax-exempt status of the plan.
In a related issue, the premiums for eligible domestic
partners who are enrolled in a regular CalPERS health benefits
program must be treated as taxable income for Federal tax
purposes--again, due to the Federal Government not recognizing
domestic partnerships for government programs.
Premiums of spouses are tax deductible. Under Assembly bill
205, CalPERS treats partners just like--it treats domestic
partners just like spouses with respect to eligibility for
CalPERS retirement benefits.
The most significant change relative to retirement benefits
is that surviving registered domestic partners of deceased
CalPERS members and retirees are now entitled to the same death
benefit allowances that were previously only available to
surviving spouses.
Assembly bill 205 also gives a domestic partner an
entitlement to community property interest of a CalPERS
member's benefits upon dissolution of a domestic partnership.
The most significant implementation issue related to what
types of domestic partners are eligible for benefits under
Assembly bill 205.
In California, a legal domestic partnership is one that is
formally registered in the Domestic Partner Registry
administered by the California Secretary of State's Office. But
the issue of domestic partnership formed outside of California
was less clear.
As of July 1, 2009, CalPERS covered 3,449 members who have
3,620 domestic partners and dependents enrolled in the health
benefits program. For 2009, the total premiums for covered
domestic partners is estimated at $19.5 million, which
represents 0.33 percent of our total $5.8 billion in premiums
projected to be paid in 2009. Unfortunately, we cannot provide
similar statistics for our retirement benefits program.
Overall, we do not believe that providing retirement and
health benefits to domestic partners of CalPERS members produce
significant burdens on staff workload or administrative
budgets. I hope this information provides you with a better
understanding of our experience incorporating domestic
partners' benefits into our retirement and health benefits
program.
I'm happy to answer any questions you may have.
[The prepared statement of Mr. Franklin follows:]
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Mr. Lynch. Mrs. Wright.
STATEMENT OF CAROLYN E. WRIGHT
Ms. Wright. Chairman Lynch, members of the subcommittee, my
name is Carol Wright, and I'm the vice president of Corporate
Human Resources for American Airlines based in Fort Worth, TX.
Speaking for the more than 80,000 employees for American
Airlines and our partners at American Eagle, we are honored to
be here today to address relevant issues in your consideration
of H.R. 2517, the Domestic Partnership Benefits and Obligations
Act of 2009.
As you can appreciate, we are by no means experts on the
Federal work force or the specific human resource benefit
questions you are raising with this legislation. We have not
had the opportunity to study it in detail. Nor do I believe we
can competently offer recommendations on all aspects of the
bill. Instead, you have encouraged us to share with you our
experience as a corporate leader in the private sector and to
share our views on best employment practices and inclusion,
which speaks to the overall goals of this legislation.
As you may be aware, American, American Eagle and the
AmericanConnections airlines serve 250 cities and 40 countries
with, on average, more than 3,400 daily flights. As a global
airline, American recognizes the importance of the
relationships among its customers, employees, business partners
and suppliers and the communities that we serve.
We must embrace the diversity that exists within each of
our key constituencies and operate in an inclusive manner for
all of these groups to thrive. As a company that bears the name
``American,'' we also know that much is expected of us and we
hold ourselves to a high standard. We know that promoting
diversity is a journey, and America is committed to making
further progress as we weave it into the very fabric of our
company.
Beginning in 1993, we were the first major airline to
include sexual orientation in our equal employment opportunity
policy, and we added gender identity in 1999. In 1994, we also
recognized our lesbian, gay, bisexual, and transgender
employees as our first official employee resource group. Last
month, we celebrated its 15th anniversary.
Building on these first steps in the late 1990's, we
decided to examine benefits parity for all of our employees,
and to identify any gaps in our soft and hard benefits,
including health and other insurance coverage, travel companion
privileges, and other options that customarily were available
to legally married heterosexual spouses.
Philosophically, we have always tried to recognize
employees as individuals with their own family needs, talents,
and ambitions. All deserve equal respect and acceptance for the
true worth and unique experiences and skills that they bring to
their jobs.
We determined that treating the employees in committed
relationships with same-sex partners as a family rather than as
single people was consistent with that philosophy. So in 2000,
we became the first major airline to offer benefits to the
same-sex partners of our employees, as we had long done for
married spouses.
I'm not able to disclose the proprietary financial details
about the costs or fiscal implications of our policies, but I
can readily report that the actual impact on overall human
resource budget is proportionately modest and manageable.
So what are the upsides? We see a stronger work force in
every sense. We are instilling a more enduring sense of loyalty
and commitment and helping to motivate our LGBT employees to be
all they can be and to bring their whole identity to work. We
never saw this as a special case or privilege, but simply doing
the right thing in a business setting that underscores
fairness, equity, and inclusion.
What are the implications for the Federal Government and
your extraordinarily diverse work force? We cannot predict with
any certainty the future market conditions for employment and
worker retention, but we can report that America's top
corporations are showing the way on best practices.
According to research from the Human Rights Campaign,
roughly 80 percent of the Fortune 100 now offer equal same-sex
partner benefits, and the same can be said of the 57 percent of
the Fortune 500. Last year in a national survey commissioned by
Out and Equal Workplace Advocates, and conducted by Harris
Interactive with Witeck-Combs Communications, 64 percent of all
American adults agreed that job benefits should be extended
equally to committed same-sex partners that are available to
legally married spouses.
Mr. Chairman, in closing, I also have a recently updated
document entitled, ``Diversity and Inclusion: A Way of Life at
American Airlines'' that I would like to submit for the
official record.
Mr. Lynch. Without objection.
[The information referred to follows:]
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Ms. Wright. Thank you for inviting American Airlines to be
here today to report on our past decade experience on this
topic. We continue to work hard and sustain and build our
commitment to diversity leadership and hope our testimony
reflects some of the lessons we have learned and are proud to
share with you.
Thank you. I will be happy to answer any questions.
Mr. Lynch. Thank you.
[The prepared statement of Ms. Wright follows:]
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Mr. Lynch. I'm going to yield myself 5 minutes for some
questions.
You are each experts in your own right, but, Ms. Badgett,
you have the unique, I think, perspective of having conducted
fairly extensive studies in the area of Federal employee
employment practices and Federal benefits. And so, having had
an opportunity to look at this from a unique angle, I think
that could be beneficial to the committee.
Have you thought about what the discretionary spending and
nondiscretionary spending ramifications would be on the Federal
Government if we were to extend these benefits? I know you are
an economist and an accomplished one, but have you thought
about it from that perspective and could you just offer your
thoughts on that?
Ms. Badgett. Do you mean distinguishing between spending in
those different categories or taken as a whole?
Mr. Lynch. Either way. I think that would be helpful. That
is a tall order. I'm not so sure you've broken it down into
that level. But that's what I'm thinking about.
Ms. Badgett. We have broken it down to that level, and the
direct spending, which comes largely from health benefits and
the annuity payments, is the smaller of the two by our
estimates.
In a given year, it varies. It will add up over time
because we've made the assumption, for purposes of estimation,
that retirees of current employees would be eligible.
So if I said that right, current employees, when they
retire, their partners would receive these benefits. So those
will accumulate over time in terms of the health care benefits,
but because of the lower annuity payments, much of that will be
offset. So that's actually a fairly small annual amount. It
starts off being zero on Day One, but over time would rise over
10 years to about $31 million a year.
On the other side, in terms of discretionary spending--so
we've taken out the Postal Service cost, we've taken out the
tax revenue offsets. In those cases it starts out at roughly
$52 million. This is our study--we did it last year so it's the
last fiscal year--and would increase overtime to about $84
million by the end of 10 years. So the total for 10 years would
be $660-some million.
Mr. Lynch. I tried to read through all of the information.
You came up with an assumption, I think it was 34,000 employees
same-sex partners within the Federal Government. How did you
arrive at it? How did you extrapolate that number? I was just
curious.
Ms. Badgett. We actually measured it. Since 1990, both the
Census and now the American Community Survey have allowed us to
identify people who say they have same-sex unmarried partners
in their household. We counted them up in the American
Community Survey and found there were 34,000 same-sex couples
in which at least one person was a Federal employee. And in
about 4,000 of those cases, both partners were Federal
employees.
Mr. Lynch. That would have been my next question.
Ms. Badgett. So that leaves about 30,000 people that we
would be concerned about.
Not everyone who has a domestic partner would sign that
partner up for benefits. We know this from many other
employees' experience. We estimated the number who would sign
up by looking at the employment status of the partner. Many of
those people will have employers who offer them health care
benefits already, so they may not be interested in signing up
for their partner's benefits in the Federal Government.
And after we made those adjustments, looking at the figure
in the BLS about how many employers offer health care benefits,
we cut that number roughly in half. So that's how we ended up
with the 14,000 figure that we use in the report.
Mr. Lynch. OK. Thank you.
My time has just about expired.
I will now recognize the gentleman from Utah, Mr. Chaffetz,
for 5 minutes.
Mr. Chaffetz. Thank you all for being here and taking the
time and being patient with us in terms of the timing. So thank
you.
Let me start with you, Ms. Wright. My understanding is that
your policy was implemented in the year 2000. Do you have any
quantifiable data that proves or demonstrates that this policy
retains employees? Do you have any quantifiable data to share
with us?
Ms. Wright. What I can say is part of a larger package of
benefits, we know we have a very low turnover rate at our
airline, we know through anecdotal----
Mr. Chaffetz. You don't have anything quantifiable that
would distinguish----
Ms. Wright. Nothing that would attribute it to any single
individual item like this. But we do know anecdotally that we
have people who choose to----
Mr. Chaffetz. I would note anecdotal information is
important, but I would also note it's anecdotal. There's
nothing that distinguishes, identifies, or can quantify
something that we are trying to quantify.
Let me followup on the chairman's question here, going back
to Ms. Badgett here.
In your testimony, you state that 20 percent of people in
same-sex couples are uninsured. Have you done any research?
Because my understanding is that opposite-sex couples that are
engaged in relationships actually represent a much higher
uninsurance rate than same-sex couples. Is that your
understanding?
Ms. Badgett. Yes, that is correct. We found that in the
same-sex study.
Mr. Chaffetz. Do you believe that this bill in any way
discriminates against anybody else? I'm not trying to give you
a trick question. But my concern is you have heterosexual
couples who maybe aren't married--because becoming married, it
takes a commitment, there is a lot of paperwork, there are
legal ramifications, it's very difficult to untangle that
relationship from a legal standpoint.
Do you believe that this legislation--because I do--
discriminates against heterosexual couples?
Ms. Badgett. I wouldn't call it discrimination. As the last
panel had a discussion about this same topic, they pointed
out--and I think this is correct--that when you compare the
situation of someone in a same-sex, unmarried couple, to that
of someone in a different-sex unmarried couple, there is no
option. There is no legal way for the same-sex couple to
establish a legal relationship that would allow them to get
these benefits. For different-sex couples, they do have that
option.
So from that perspective, no, I don't think that's
discrimination.
Mr. Chaffetz. We'll go ahead and disagree on that one, but
I appreciate it.
I would just note here the majority memorandum states that,
``Although costs will increase for the Federal Government under
this bill, it will also generate an increase in income and
payroll taxes.''
I could see where there is taxing on benefits and the
ramifications that this would have, not only on individuals bus
also to the Federal Treasury, but I also find a huge, huge
disparity between, oh, this is only going to affect 0.2-
something percent--as I heard on the first panel--and then to
others who want to say, oh, no, the same-sex couple population
is like 10 percent. It's huge. It's huge.
How do we deal with the huge disparity in those numbers,
because they seem to be used at convenience probably on both
sides? But I can't find anything that's quantifiable nor do I
believe that the Census data, which is now nearly 10 years old,
provides adequate information or background to try to assess
the true cost of what it would cost to implement this.
Ms. Badgett. Well, addressing that particular question
you've raised two separate issues of measurement, and that's
how I look at this. One has to do with how do you count the
number of people who think of themselves as being lesbian, gay,
or bixsexual, which I think is a very different question.
That's where the 10 percent is often raised. And I think that
is a completely different issue.
In thinking about how many couples will actually sign up
for benefits, you are looking at, first of all, a much smaller
group. Those are people who are in relationships in which they
live together.
So the unmarried partners are counted in the Census and the
American Community Survey, which is actually done every year.
So we've used much more up-to-date figures than the Census
figures. So that's a much smaller pool of people.
And then in thinking further about the people who need
those benefits because they don't have access to them either
because they're Federal employees themselves or because they
have an employer who offers those benefits, at that point you
are starting to whittle away at that much larger number. And
our goal as analysts is to get down to the point of trying to
figure out how many people will actually want to sign up for
those benefits.
And that will be reflective of at least a couple of other
things. One, that tax payment is going to be a disincentive for
many people to sign up for them. So that will, perhaps, reduce
some of the folks who sign up.
And then, finally, there is perhaps some concern about
stigma if people believe that they will be thought of as
lesbian, gay, or bisexual, which is probably how they will be
thought of if folks know that they are in a same-sex
relationship. Then they may also be reluctant to sign a piece
of paper saying that.
That's why that's important. We haven't talked too much
about it, but that is why I believe it's important to have both
a very strong nondiscrimination policy alongside of a domestic
partner benefits policy to ensure the people who sign up for
benefits won't be hurt in some other way.
Mr. Chaffetz. Thank you. I see I'm out of time.
Mr. Lynch. Mr. Cummings for 5 minutes.
Mr. Cummings. I want to thank you all for your testimony.
Ms. Wright, I find it very interesting what American
Airlines has been able to achieve. In your testimony, you talk
about what actually began happening back in 1993. And as I
listened to just the last set of questions here, I'm wondering
how did you all break through to be able to accomplish what you
accomplished? What kind of hurdles did you overcome and how did
you get to where you are today? It seems like you had to go
against some pretty heavy artillery. I'm just guessing.
Ms. Wright. I think that is a fair statement.
As I'm sure you can well imagine, you get there through a
conviction of knowing what you are doing is right. And at
American, we have employees from all walks of life, all
cultures, nations, genders, races, religions, and sexual
orientation. And for us, the diversity is becoming woven into
the fabric of our company, and it's about what we've come to
create as an understanding that diversity and inclusion is not
about all having the same background, the same beliefs, but in
acknowledging and accepting the diversity of beliefs and
valuing what each individual brings.
And so it's that sort of core understanding on the part of
our company and our employees of what diversity means, and the
acceptance of that helps us get through when there are
disagreements and different perspectives. It's a matter of
bringing them all forward and letting them all be heard.
Mr. Cummings. You talk about morale. How do you determine
that you have stronger morale when you have these kinds of
problems? How do you come to these kinds of conclusions?
Ms. Wright. I think there are several things. One, we have
a very low turnover rate. We do periodic surveys of our
employees. We try to understand what, through those surveys,
retains people, and when they leave, when they exit, why they
exit, to understand where we are doing well and where we can be
stronger. And we continue to take all of that information, plus
the anecdotal evidence, talking to the employees and not just
the lesbian, gay, bixsexual and transgender employees, but
other employees who understand and value the inclusiveness and
the respect for the individual that's demonstrated by our
policies.
So we look through all of that and say, are we on the right
track? It's a journey. It's not a destination. And we continue
to evolve in trying to be more inclusive and doing a better job
of making it a part of our culture.
Mr. Cummings. As you moved to bring about those types of
policies, was there any kind of education accompanying that? In
other words, to create the kind of sensitivity or hope to
create the kind of sensitivity, because I think what happens so
often is that when you come up with new policies like this,
there are people who have some hidden, sometimes on the
surface, sometimes in-your-face type of feelings, and those
feelings can come out. And I think, just as Ms. Badgett said, a
lot of times people are reluctant to talk about their personal
lives, and to have to make a declaration perhaps opens them up
to some suffering.
Ms. Wright. Yes.
Mr. Cummings. I'm just wondering, as you went through this,
did you anticipate those kinds of problems, and, if anything,
what did you do in anticipation?
Ms. Wright. We did anticipate and we do learn as we go as
well. It's a combination of the two. We do training on a broad
basis about diversity in general. And one of the things we talk
about is knowing who's in the room. Sometimes diversity is
obvious, sometimes it's not obvious. So understanding that and
providing training for all of our employees on diversity and
inclusion.
We also have a Diversity Advisory Council [DAC], which is
made up of representatives from each of our resource groups
which represent a wide range of demographic groups. Through
that council, we get a lot of advice. We include all of the
leaders of the different demographic groups and our different
employee research groups to come together and help us figure
out how we can do more to support.
And then where we have unique situations, such as a
transgender pilot, we will provide specific training and
counseling to people immediately around that area or in the
areas where problems exist. We'll go in and provide additional
training and counseling for the employees in those areas to try
to help them come to terms and better understand and embrace
the inclusive approach that we are taking.
Mr. Cummings. Thank you very much.
Thank you, Mr. Chairman.
Mr. Lynch. Mr. Franklin, we've been guessing and trying to
extrapolate through studies what the impact might be on the
Federal budget by extending these benefits. You've had very
real experience with CalPERS. You've had to grapple with the
costs, you have had to grapple with administering this, just as
we are sort of thinking about this, with the affidavits and
verification.
Tell us about your experience. What did it mean to the
bottom line at CalPERS and what difficulties did you have in
doing the whole administrative piece, getting people to come
forward? Was it in an affidavit-type situation, registration-
type system? How did you handle that?
Mr. Franklin. Thank you, Mr. Chairman, for the question.
Fortunately for CalPERS, our experience was not onerous.
The Secretary of State, after the legislation was passed, set
up an online registration system. Additionally, made hard-copy
registration available at various Secretary of State offices.
In regards to cost in general, as I stated earlier, $19.5
million was our total cost. However, we spent close to $6
million annually for health care benefits. The total number of
individuals or members who are enrolled in our Domestic Partner
Health Benefits Program is less than a half a percentage point.
So therefore, our membership in that regards was not large.
In terms of other administrative challenges, the biggest
administrative challenge was managing the tax implications and
looking at how our State Controller Office would manage those
folks who were not exempt, did not have tax exemptions. That
was a large part of the work. However, that was done in fairly
short order, given that there were other IT changes afoot at
our State Controller's Office.
But all in all, I think our approach initially was one that
we wanted to create an environment where California recognized
the diversity of our State. We wanted to ensure that as an
employer, our benefits were in alignment for all of our
employees. So the actual enactment of the legislation was not
problematic.
Mr. Cummings [presiding]. Let me ask you something, Ms.
Wright. You know, a lot of times you hear people say they worry
there might be fraudulent activities in regards to these
things. You hear those arguments all the time. It's quite a bit
of experience you have. It's been quite a few years now. I'm
wondering what you've found. Have you had any kinds of
fraudulent activities that you know of?
Ms. Wright. No significant fraudulent activity in terms of
the domestic partner benefits. We do go through and we did an
audit a few years back on all of our dependents, whether they
be spouses, dependent children of domestic partners. I suppose
with any large corporation, we found some cases but they really
weren't a domestic partner. They were in heterosexual couples
and married couples or dependent children. So fraud has really
not been, in terms of domestic partners, a big issue for us.
And we do go through an affirmative proof of eligibility
process at the time of enrollment to verify the people are
indeed eligible.
Mr. Cummings. Had you all anticipated that there might be
problems with that?
Ms. Wright. I don't think we anticipated the problems would
be any greater or less with the domestic partner benefits than
with any other benefit, whether it be married couples,
dependent children, or common-law spouses. So I don't think we
anticipated it would be a bigger issue, just proportionate to
any other issue.
Mr. Cummings. Now, Mr. Franklin, I think I asked Ms. Wright
the question about this whole idea of morale, but we've also
heard today that providing this benefit is good for the
employer because it helps recruit and retain top talents. You
found that to be the case?
Mr. Franklin. CalPERS is not exactly the employer. We are a
broker for the State of California. However, we do ask
questions regarding recruitment, retention, absenteeism, in
order to be better performed. We really haven't seen data
either one way or the other in terms of the retention or
recruitment. However, satisfaction surveys have shown in the
past that when you ask questions around diversity and equity in
the workplace, that this notion or this premise that everyone
is being treated fairly is one we get very high marks on.
Mr. Cummings. That's interesting. As I was listening to
you, Ms. Wright, the whole idea that something can come about,
and then it's new and a lot of people have questions about it,
and then what's new becomes old. And then it becomes the norm.
The problem is getting through the process. And I think that's
the difficulty quite often.
My mother used to say, ``Integrity is about doing what you
believe is right, and then withstanding the criticism and
waiting for everybody to catch up.''
And so I think that the things that we are talking about
today, may be new for some. For some it hasn't even come into
existence yet. But at some point, I think it will be the norm
and maybe we'll move to another level.
Ms. Badgett, let me ask you one last question.
Your testimony states that you've worked with numerous
employers on implementing domestic partner benefits. Can you
tell us what the main reason employers cite for providing these
benefits, other than costs, and what do they tell you is the
main challenge in implementing the benefits?
Ms. Badgett. I would say that employers usually refer to
two reasons to offer these benefits. The first is the one that
you hear a lot about. It's about competing with other companies
for the best employees.
The second one has to do with equity issues, with treating
all employees fairly. So they--in my experience--frequently
cite those roughly equally. Those are the two issues.
In terms of the implementation piece of it, I think the
concern that most employers seem to have is with regard to the
taxable imputed income that they have to adjust their payroll
systems to reflect. And that can sometimes be a little bit
unwieldy for employers, but they only have to do it once. So
it's something that's a one-time cost.
Mr. Cummings. Did you want to say something?
We are going to take a slight break. Mr. Lynch is coming
right back, and then we'll go to our third panel. Thank you all
for your patience and thank you all for your testimony.
[Recess.]
Mr. Lynch. I want to thank you all for your patience and
your willingness to come before this subcommittee and help us
with our work.
I apologize for the interminable delays that have gone on
today. Some of them intentionally, unfortunately. But this is
an important enough issue that we have a full and fair hearing
here, and we intend to do just that. I know there were some
witnesses who have offered testimony in writing, and we'll
accept that without objection.
But in continuance of our hearing, I want to introduce our
next panel.
Ambassador Michael Guest served as America's first openly
gay Senate-confirmed U.S. Ambassador during his tenure to
Romania from 2001 to 2004. Mr. Guest currently serves as senior
adviser to the Council for Global Equality, which was formed in
September 2008 by a coalition of human rights organizations
that advocate for a stronger and more consistent U.S.
Government and corporate voice on behalf of lesbian, gay, and
transgendered human rights protections at home and abroad.
Ms. Lorilyn ``Candy'' Holmes has been an employee with the
U.S. Government Accountability Office for 33 years in spite,
believe it or not, of her youthful appearance. She is
responsible for the oversight of various agency-wide
information technology programs. A native Washingtonian, Ms.
Holmes is an ordained clergy with the Metropolitan Community
Churches, which is the world's largest and oldest Christian
denomination, with primary affirming ministry to the lesbian
and gay and transgendered community along with family, friends,
and allies.
Dr. Frank Page currently serves as the pastor of the First
Baptist Church of Taylor, SC, and has previously held the
position of president of the Southern Baptist Convention. A
native of Robbins, NC, Dr. Page is the author of several books
and scholarly articles as well as a member of President Obama's
Council on Faith-Based and Neighborhood Partnerships.
I realize that we have far exceeded the estimated limits of
time thus far. It is the custom of this subcommittee to ask all
witnesses who are here to offer testimony be sworn. Could I ask
all of you to raise, stand and raise your right hands.
[Witnesses sworn.]
Mr. Lynch. Let the record indicate that all of the
witnesses have answered in the affirmative.
I will begin by offering 5 minutes for an opening statement
to Ambassador Guest.
STATEMENTS OF AMBASSADOR (RET.) MICHAEL GUEST, FORMER CAREER
FOREIGN SERVICE OFFICER; LORILYN HOLMES, CURRENT FEDERAL
EMPLOYEE, REVEREND, METROPOLITAN COMMUNITY CHURCHES; AND FRANK
PAGE, PASTOR, FIRST BAPTIST CHURCH OF TAYLOR, SC, PRESIDENT,
SOUTHERN BAPTIST CONVENTION 2006
STATEMENT OF MICHAEL GUEST
Mr. Guest. Mr. Chairman, thank you for inviting me to share
my perspective on this bill.
For more than half of my life, I served our country as a
career Foreign Service Officer. I was honored to represent our
country, and I am proud of my accomplishments, but in December
2007, I ended my career after having sought, without success,
to amend policies that discriminate against gay and lesbian
Foreign Service personnel.
While sharing the same service obligation as my colleagues,
my family had no benefits. My partner had sacrificed his career
to support me in serving the country that we both love and in
return was treated as a second-class citizen in our overseas
postings. And I couldn't reconcile how an administration so
consumed with the fight against terrorism would knowingly put
my partner's life at risk and indeed put the security and
effectiveness of our embassy communities at risk to policies
that base protections needlessly on marriage, an option that,
of course, is unavailable to us.
Mr. Chairman, the State Department's specific inequalities
that I challenged have framed my perspective, and those are
offered in detail in my written testimony.
As examples, the Department would not train my partner in
how to recognize a terrorist threat or a counterintelligence
trap, thus putting his life and indeed U.S. interests at risk.
He had no guarantee of being evacuated whether for life-
threatening medical reasons or to escape political violence
that might close an embassy.
The Department would not train him in the informal
community leadership roles that he, as my partner, was, in
fact, expected to fill. Unlike spouses, he had no diplomatic
protections nor could he compete for jobs that the embassy
needed to fill, regardless of his qualifications; and while the
Department paid to transport pets to and from posts, it
wouldn't pay my partner's airfare as if the government for
which he sacrificed so much considered him to be less important
than a dog.
Now, I trust you can see the ironies. As a diplomat, I
advanced American principles of equality, fair play, and
respect for diversity in the countries to which I was posted;
and yet the very agency that charged me to represent those
policies showed no respect for those principles and how it
treated those of us who are gay or lesbian. Nor did that agency
that drills crisis management, diversity awareness, and
leadership skills into all employees show any concern at all on
the issues of health, safety, morale, and effectiveness that
stem from these discriminatory policies.
Now, Mr. Chairman, I still believe that America is still
the greatest country on Earth, and I'm proud of the time that I
spent in the State Department, but my experience in seeking
redress of these inequalities made me realize that this is not
the America I believed in when I came to Washington some 30
years ago to work, in fact, as an intern here on Capitol Hill.
You see, the issue we are here to address is not about
personal belief, and it is not the definition of marriage.
Those are red herrings. It's workplace fairness, and it's civil
rights. Somehow we, as a country, have allowed the term
``equality,'' which is an absolute term, to be redefined to
mean more rights for some individuals and fewer for others.
LGBT Americans are not demanding so-called special rights,
as some claim, through this or any other bill. How is it that
we are debating even today whether citizens who are gay should
enjoy the same fundamental protections as others that we work
with, who live in our communities, work in offices and
factories, and, yes, share a fellowship in our place of
worship.
And, in that regard, I want to mention, when I was a
student at Furman University many years ago, I attended First
Baptist Church in Taylor, SC, which is represented here by my
fellow panelist.
Mr. Chairman, I was reluctant to relive before this
committee the most painful chapter of my life, the decision to
leave a career that I love. But, for me, this is a matter of
closure. When President Obama took his action on the 17th of
last month to redress the issues at the State Department, I
took my partner's hand and quietly apologized to him that this
action couldn't have come sooner for his sake.
And now the spotlight is on Congress. The bill before you
addressees a range of benefit that remains out of reach for
Federal employees for same-sex partners. These have been
detailed by other panelists. They're as critical to our
families as they are to us, and I respectfully ask that you
close this gap.
You've heard many solid arguments for this bill based on
things like worker retention and budgetary impact and
comparisons to corporate policies, but I ask you to support
this legislation for different reasons.
First, principle is at stake. Equality, fair mindedness,
and respect for diversity are at the heart of America's
identity. This bill would honor those principles and bring us
closer to fulfilling those ideals.
But, second, this bill is about people. Those of us who are
gay have the same aspirations, the same hopes, and the same
needs as any of you. We have families that we love, that we
need to take care of, just as you do. We are humans like you.
We love and support our country like you do. And we ask only to
be treated fairly and equally and that our families be provided
with the same protections and benefits that are provided to
yours.
I have been in Washington almost three decades, and I've
heard over and over that policy issues related to gay and
lesbian Americans are just too hard to tackle and that other
agendas must come first and that the time is not now. This
issue is hard only because we make it so. And surely we can
come together as a country and as a people to do the right
thing for families who have yet to recognize and realize the
equality to which we, as citizens, are entitled.
I thank you, Mr. Chairman.
[The prepared statement of Mr. Guest follows:]
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Mr. Lynch. Ms. Holmes, you are now recognized for 5
minutes.
STATEMENT OF LORILYN HOLMES
Ms. Holmes. Good evening, Chairman Lynch. I appreciate this
opportunity to testify before you in favor of domestic partner
benefits for Federal employees. I appreciate that my partner
and a portion of my family are also present.
It's been a long time since I have visited the Rayburn
Building where my father worked years ago as a laborer serving
in these same hearing rooms. He would take me by the hand and
walk me through these very halls of Congress explaining this is
where decisions are made, Candy, that impact us all. I would
have never imagined I would return to be speaking before you
today before you now on a topic of such importance to me and to
countless others. I believe my father is looking upon us from
celestial heights, proud that I am here. Thank you for
convening this hearing.
My name is Candy Holmes, and I am a Federal employee, a
manager with the Government Accountability Office in
Washington, DC. I have worked at the GAO for 33 years--
absolutely 33 years. I am here to speak not only about my story
but to express my views on the merits and the need for this
legislation, that it ensures that lesbian and gay Federal
employees and our same-gender partners receive the same
benefits that are granted to our opposite-gender married
Federal employees.
I am not here speaking as a representative of the GAO. I am
testifying on my own behalf.
It is also important for me to share with you that I am
lesbian, and I am Christian, and for the last 20 years I have
been a part of the Metropolitan Community Churches, and I am an
ordained clergywoman. I'm in a same-gender relationship with
the Reverend Darlene Garner. We are in a loving, committed
relationship in which we worry about our children, take pride
in our grand and great grandchildren, make a home together, and
plan our retirement together.
Darlene is also ordained clergy with the MCC and serves as
part of the denomination spiritual leadership. Because she is
an employee of MCC, she relies on limited employee benefits and
a retirement plan that will provide less than $120 a month when
she retires.
There are many families like ours. The difference is this.
The government to which I have devoted 33 years of my working
life will not honor my partnership because I love another
women, not a man. There are many voices and stories you will
not have a chance to hear, so I share from our collective
experiences of unfair treatment and unjust Federal policies.
I entered the Federal Government in 1977. And in that day,
it was enough that I was also dealing with the dynamics of
being African American and a woman in the Federal workplace. So
I was a closeted lesbian. I worked in utter fear that I would
be found out and suffer the consequences. Like many others, I
chose to be silent; and that rendered my life invisible.
Recently, I came to a tipping point in my life. The
decision in California to uphold Proposition 8, the ban on gay
marriage, sent me a stark, clear, yet unbelievable message that
discrimination can be legalized again. I was outraged. So I am
here to bear witness openly as a lesbian Federal employee who
seeks fair and equal treatment.
Federal employees who are married to someone of the
opposite gender are automatic beneficiaries of Federal
benefits. My family and others like us are automatically
denied. It is disturbing and demoralizing to be treated as a
second-class citizen and worker and told that I cannot enjoy
the benefits of my labor on an equal footing with my opposite-
gender counterparts.
Being treated as a second-class citizen is eerily familiar
to me. Same church, just a different pew. There was a time in
this country when being treated differently because of the
color of my skin was simply the way it was. Being treated so
unfairly now because of who I love is more than a matter of
fairness; it is an issue of civil rights.
My partner and I are preparing for our retirement years
now. Unless this act is adopted now, the economic impact of my
retirement on my family will be dire, as though I had never
dedicated 35 years of my life to my career as a Federal
employee.
No opposite-gender married couple will ever have to think
about this, ever have to even think about such a thing because
they had been privileged by right of legislation. Government
should work for us, not against us.
In summary, Chairman Lynch, the family benefits in question
are a significant portion of employee compensation because gay
and lesbian Federal employees do not receive equal pay for our
equal contributions. It is clear that this act would be a first
step in the right direction toward eliminating discrimination
and compensation.
As I conclude, I would like to thank the cosponsors from
both the House and the Senate for their ongoing efforts to move
this act to this point and for linking their hands with mine
and others on the arc of history to bend it once more toward
justice.
During these days of uncertainty, I remind us all of the
words of President Obama from his inaugural address: The time
has come to reaffirm our enduring spirit to choose our better
history, to carry forth that precious gift, that mobile idea
passed on from generation to generation, the God-given promise
that all are equal, all are free, and all deserve a chance to
pursue their full measure of happiness, including Federal
employees like me. There is no wrong time to do the right
thing.
Thank you and God bless. I will be happy to take any
questions you may have.
[The prepared statement of Ms. Holmes follows:]
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Mr. Lynch. Dr. Page, we are thankful that you stayed. You
are now recognized for 5 minutes.
STATEMENT OF FRANK PAGE
Mr. Page. Thank you, Mr. Chairman. I do appreciate the
opportunity to address this committee, though singular you are
at this particular moment.
I've heard much talk today in the 6 hours plus that I have
sat here about diversity, equality, fairness, but I have to
note for the record in the interest of fairness, I'm the only
person asked to speak as a witness today who speaks in
opposition to this proposed bill, H.R. 2517.
I have heard a great deal of verbiage today about how this
would make the government on equal footing regarding
recruitment and retention. I've heard many things about
fairness; I understand that and I hear that in my heart. But I
do believe this is a part of a social agenda, and I do speak in
opposition to H.R. 2517, primarily because of two reasons. One
is moral; one is financial.
I do believe that it has been the perennial role of the
government to support the institutions of society such as
marriage; and, in this instance, I think this is taking a
direct role in opposition to a traditional definition in
support of that which marriage has traditionally been.
I believe that the government has always stood to support,
not to discourage. I do believe in moral absolutes. Those are
words we've not heard today. Those are words that are not
popular in our culture today. But I do say that I do believe
there are moral absolutes.
I was excited to hear Ambassador Guest say that he had
attended our church. I would love for him to attend again, and
he would find a place of love and welcome. But he will also
hear again biblical truth that marriage is one man, one woman,
freely and timely committed to each other as companions for
life. We believe that the government ought to support the role
of marriage in our society.
We also, as unpopular as it is today, believe that this is
a part of a social agenda that continues to seek normalization
of the homosexual lifestyle that I, and I believe many other
evangelicals, not all, certainly oppose. We care for people, we
do love people, but we are painted as if we are hateful,
caricatured as mean spirited. We are not, but we do believe
there are absolutes, and we stand by them.
This bill promises equal treatment, but I believe that it
has created an elitism. For example, it's been pointed out
today that heterosexual couples, opposite-gender couples would
not be allowed to have the same benefits. It's been pointed
out, well, they can get married. Well, there are same-sex
couples that do not wish to get married. There are opposite-sex
couples that do not wish to get married for many reasons. This
sets aside same-sex couples as an elite class, and those same
benefits would be denied to opposite-sexed couples who choose
not to marry.
So I do believe that this is creating a discriminating
bill. It is a discriminating bill; and, again, I think that is
improper.
Do I personally oppose same-sex couples who live together
without marriage? Yes. Do I oppose opposite-sex couples who
live together? Yes. We do believe that is improper. For moral
reasons but also financial reasons.
I do believe that this creates an opportunity for abuse.
I've heard the promises today of supposed safeguards. But I've
got to tell you, Mr. Chairman, that I, like many Americans,
don't trust the government's ability to guard itself in its
policy real well, and I hope that doesn't come as a great
surprise to you. But I have deep concerns about the moral
implications about this bill, also about the financial
possibilities. I do encourage that this bill will be defeated
and that we will see the government continue in some small form
to lead corporations and society in the protection of
traditional marriage.
Thank you for listening to my comments.
Mr. Lynch. Let me begin with Ambassador Guest.
First of all, thank you for your service to our country. I
appreciate that greatly. I regret that the situation existed
that treated you in a way that you felt that you could not
continue in our service, because I think we have, lost out. We
have suffered not only because of your own decision, but I'm
sure that there are thousands of employees that have probably
made the same decision over time as a result of this policy.
Let me ask you. You also, in your last few years of
service, began to advocate on behalf of changing the laws and
changing the regulations as they apply to Federal employees. We
are looking at a proposal today offered by Ms. Baldwin subject
to some technical amendments being suggested by the Office of
Personnel Management. But, basically, what they're suggesting
is that, in order to extend these benefits, they will require
gay and lesbian employees to file a sworn affidavit under the
penalties of perjury that they have a long-term commitment,
solid commitment, in some cases, marriages recognized in other
States, and that they want the benefits that they receive as
employees to be extended to their spouse, to their domestic
partners.
The idea of requiring employees to come forward requiring
to sign an affidavit, especially in the Federal Government
context, can be somewhat intimidating. And I just want--I
wonder how you see that, the administration of that practice,
affecting the utilization rate among gay and lesbian employees
in the Federal workplace.
Mr. Guest. Thank you for the question, Mr. Chairman.
I don't think that this is an onerous requirement, to be
honest. Had we been speaking 20 years ago, things might have
been different. But I think our society has evolved in a way
where people are much more open about who they are and more
honest. Honesty is a value that I think is very, very important
in life; and I think many people now are much more honest.
I, frankly, don't know that it is entirely necessary. I
certainly believe that Federal employees who have security
clearances would never risk their security clearance on the
promise of a false affidavit. I don't think that people would
be willing to jeopardize their employment, also. But I do
believe that, in the interest of making sure that this process
works as smoothly and effectively as possible and that there is
no fraud, that having this sort of an affidavit would not be
objected to by any member of the Federal Government that I
know.
Mr. Lynch. Ms. Holmes, you had a perspective as a parent as
well as a partner in this. With over 33 years going through--
you've got a compelling story, and it gives great power to your
testimony today. How has that affected your extended family
life in dealing with this policy over the years? How have your
children been affected by being, I think, unfairly treated by a
policy that obviously distinguishes between heterosexual
families and homosexual families?
Ms. Holmes. Well, Chairman Lynch, in our case, my partner
and I, when we came together, the children were already grown.
They were young adults, so we were not impacted by this--not
being included or not being able to use the health benefits.
But that being said, such an exclusion still has a heavy
impact on my colleagues. And I can share from their experiences
in blending families and with our children, our partners, we
share parenting responsibilities and love all of the children
without distinction. However, the Federal Government does not
consider the children of our same-sex partners as being our
children.
I know of many same-sex couples who live in such a blended
family situation and coverage under the Federal employees
health benefit program would not cover them. It is not
available to the children of our partners. When the children
are ill, the birth or adopted children of Federal employees can
be treated by a private physician. If the partner is a stay-at-
home parent, or for whatever reason is uninsured, the partner's
ill child sometimes must go without health care or it must, at
most, turn to public services for health care.
Mr. Lynch. Dr. Page, a number of the members of previous
panels, in response to questions by the ranking member, Mr.
Chaffetz of Utah, there was an exchange here on several
occasions about the idea that, as you stated in your testimony,
single heterosexual couples living together were being
discriminated against under this bill because they would not be
afforded the same rights that gay couples would be afforded as
it's currently drafted. And the response from some of the
witnesses, several of them, was that the heterosexual couples
have the opportunity to marry and upon that marriage,
unquestionably, they would be afforded the benefits. Nothing
further needs to be done.
And you have made the same argument that heterosexual
couples are being discriminated against. How do you reconcile
that fact that one couple can go ahead and get married and they
get the benefits just like that and the other one, the gay
couple or lesbian couple, can achieve that same result?
Mr. Page. Well, I mean that is a separate issue. The issue
of marriage is very clear, that under Federal law right now
they are not married and they cannot get married. That's a moot
point to me. Because that is not an even a possibility at this
point, as far as Federal law.
But what I was simply saying is this: there are many same-
sex couples that simply do not choose to get married for
whatever reason. There are many opposite-sex couples that
choose not to get married. But there are many people, for
example, who are in relationships or friendship, may even live
together, elderly persons, young persons, whatever the age
might be. Why should they be discriminated against, that
they're not going to be allowed to get the same benefits that a
same-sex couple would get?
I'm simply saying it's discriminatory purposely because the
only protected clause in this particular piece of legislation
are same-sex couples, automatically discriminating against
those who are opposite sex. They choose not to get married.
That's not my business. That's not your business. That's their
business. But the government is automatically discriminating
against them.
Mr. Lynch. But it is the operation of law that a gay couple
cannot get married, even though they have a long-term,
committed relationship.
Mr. Page. And that is true.
Mr. Lynch. And it's the operation of law that, you know,
heterosexual couples can.
Mr. Page. But I'm not arguing what's legal and what's not
legal. I'm arguing what is discriminatory and what is not
discriminatory.
Mr. Lynch. Is that connected?
Mr. Page. Yes, sir.
Mr. Lynch. I understand, but this is a legislative body.
Mr. Page. Yes, sir.
Mr. Lynch. I am a lawmaker, so we've got to talk about the
law.
Mr. Page. All right. Well, then let's respect the law that
is currently on the books that says these persons are not
married.
Mr. Lynch. The law is not a static entity. We're here
because a very respected member of the legislature has come
forward with a proposal to change the law, to extend the
benefits. And I respect your position. I don't----
Mr. Page. No, sir, I don't think you do, but thank you for
saying that.
Mr. Lynch. No, no, I do respect you. However, we are trying
to grapple with the issue of, in this case, as presented by
some, equal work for equal pay or equal pay for equal work. And
I think that there is a valid case being made when you do a
comparative assessment of how each person is treated, and I
think there is a fair statement that it's drastically different
for Ambassador Guest in his situation versus some of my other
heterosexual employees and the benefits that have been afforded
to them. You know, at least from an equal protection standpoint
I think there's fair argument that's been put forward here.
Let me just say this. There's no way I'm going to cover the
whole landscape of questions that need to be asked this
evening, but what I would like to do is to give each of you
several minutes. If there are aspects of this debate today in
the three panels that have not been covered, if there are parts
of this debate that you'd like to emphasize or amplify or just
summarize, that you think that a message that has not been
heard here today, then I want to give you full opportunity to
do that.
Dr. Page, I'd like to afford you the first 3 minutes, if
you'd like to. As I said, just put some messages on the record
about your feelings on this and your positions on this. You're
recognized for 3 minutes.
Mr. Page. Thank you, Mr. Chairman.
I do recognize that I rise in favor of a minority opinion.
It's not very popular. It's not politically correct. But I do
stand and say that the government should be in the process of
encouraging the traditional marriage that has stood for many,
many hundreds of years as that way that culture is best
protected, and I think the government ought to be encouraging,
not discouraging, and I think this act discourages.
Thank you, sir.
Mr. Lynch. Thank you, sir.
Ms. Holmes, you're recognized for 3 minutes.
Ms. Holmes. Thank you, Chairman.
I want to start with saying the government is not a
religious institution. For the Federal Government to afford all
employees equal treatment does not require anyone to change
their values or beliefs. It requires only that the Federal
Government honor the legal doctrine of separation of church and
State.
And on a real personal note, it has been demoralizing to go
to work each day knowing that I must endure the indignity of
not receiving equal pay for my equal work. The spirit of the
Declaration of Independence is that all people have the
inalienable right to life, liberty, and the pursuit of
happiness. Yet, being a lesbian and employed by the Federal
Government has meant that I can't or haven't been allowed to
exercise that basic American right for myself and my family.
Thank you.
Mr. Lynch. Thank you.
Ambassador Guest, you're recognized for 3 minutes.
Mr. Guest. Mr. Chairman, the three of us who are sitting
before you now are all Christians. We all are men and women of
faith and belief, but we are also all Americans. America is
not, as my colleague has said, a theocratic society. This
country was founded on certain principles, and among them were
equality, among them were fair play, fairness, and justice. And
these are principles that we represent in political discourse
in this body and principles that we represent abroad when we
are speaking about what America stands for, and those
principles are denied by the law the way it now exists.
You've pointed out that law is not static, that law changes
both to deal with changing times, and from this perspective I
would say it's not from changing times. It's to right wrongs.
It's to right injustices.
I find the argument that somehow this bill is
discriminatory sheer sophistry. We would not be sitting here
today having this discussion about this bill if one of two
situations existed, one being that we, gay and lesbian
Americans, were allowed access to marriage because all of these
benefits that are attached to employment for the Federal
Government are attached through the institution of marriage.
The second circumstance would be if the government recognized
that workplace benefits and protections and fairness should not
be attached through marriage, that marriage should not be the
fulcrum on which these benefits are offered, that there needs
to be a principle established of equal rights for equal
representation and equal service.
And that's what this really is about. That's what this bill
is about, and I would urge that the committee consider it in
that light.
Thank you.
Mr. Lynch. Thank you.
As you know, we had several hearings going on at the same
time today. It's the way it works around here. It's not the
best way, but it's the way it works. So what I'm going to do is
I'm going to leave the record open for 5 days. That will also,
you know, based on your testimony today will also give the
other members of this committee an opportunity to submit
questions to you in writing; and you will have 5 days to return
those answers to the committee if necessary.
But I want to thank you each. I really do appreciate all
the testimony that's been offered to this committee. I thank
you for your willingness, and it took courage for each of you
to step forward and offer testimony to this committee under
oath, and we appreciate that, and we thank you, and we bid you
good evening.
This hearing is now adjourned.
[Whereupon, at 8:08 p.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Elijah E. Cummings
follows:]
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