[Congressional Record Volume 150, Number 72 (Thursday, May 20, 2004)]
[House]
[Pages H3476-H3492]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        THE FINANCIAL PENALTY RESULTING FROM SAME-SEX MARRIAGES

  (Mr. BACHUS asked and was given permission to address the House for 1 
minute, revise and extend his remarks and include extraneous material.)
  Mr. BACHUS. Mr. Speaker, an enormous unrevealed financial penalty 
will result from same-sex marriage recognition, but there has been 
little discussion. Why is the media looking the other way? Do seniors 
not have the right to know it will affect their Social Security 
benefits? Do taxpayers not have the right to know that it will affect 
their taxes, both State and Federal? Does the public not have the right 
to know that it means less money for roads, schools, medical research, 
veterans benefits? In fact, it was the Social Security issue that side-
lined a similar proposal in the Canadian Parliament.
  What is the cost? I include in the Record a GAO report outlining 
1,138 Federal programs impacted if same-sex marriages are recognized in 
this country, an enormous price tag, hundreds of billions of dollars.
  The American people have the right to know. We need to discuss this 
issue. We are going to give benefits to same-sex couples we do not give 
to Americans caring for disabled and elderly relatives. We are going to 
give it to same-sex couples who have no children and give them the same 
benefits we give married couple with several children.
  We need to discuss this issue. It is going to cost billions of 
dollars.


                               U.S. General Accounting Office,

                                 Washington, DC, January 23, 2004.
     Subject: Defense of Marriage Act: Update to Prior Report
     Hon. Bill Frist,
     Majority Leader,
     U.S. Senate.
       Dear Senator Frist: The Defense of Marriage Act (DOMA) 
     provides definitions of ``marriage'' and ``spouse'' that are 
     to be used in construing the meaning of a federal law and, 
     thus, affect the interpretation of a wide variety of federal 
     laws in which marital status is a factor. In 1997, we issued 
     a report

[[Page H3477]]

     identifying 1,049 federal statutory provisions classified to 
     the United States Code in which benefits, rights, and 
     privileges are contingent on marital status or in which 
     marital status is a factor. In preparing the 1997 report, we 
     limited our search to laws enacted prior to September 21, 
     1996, the date DOMA was signed into law. Recently, you asked 
     us to update our 1997 compilation.
       We have identified 120 statutory provisions involving 
     marital status that were enacted between September 21, 1996, 
     and December 31, 2003. During the same period, 31 statutory 
     provisions involving marital status were repealed or amended 
     in such a way as to eliminate marital status as a factor. 
     Consequently, as of December 31, 2003, our research 
     identified a total of 1,138 federal statutory provisions 
     classified to the United States Code in which marital status 
     is a factor in determining or receiving benefits, rights, and 
     privileges.
       To prepare the updated list, we used the same research 
     methods and legal databases that we employed in 1997. 
     Accordingly, the same caveats concerning the completeness of 
     our collection of laws apply to this updated compilation, as 
     explained more fully in our prior report. For example, 
     because of the inherent limitations of any global electronic 
     search and the many ways in which the laws of the United 
     States Code may deal with marital status, we cannot guarantee 
     that we have captured every individual law in the United 
     States Code in which marital status figures. However, we 
     believe that the probability is high that the updated list 
     identified federal programs in the United States Code in 
     which marital status is a factor.
       We have organized our research using the same 13 subject 
     categories as the 1997 report. As agreed with your staff, in 
     addition to providing you with a primary table of new 
     statutory provisions involving marital status, we have 
     prepared a second table identifying those provisions in our 
     prior report that subsequently have been repealed or amended 
     in a manner that eliminates marital status as a factor. 
     Finally, in a third table, we have listed those provisions 
     identified in our 1997 report that have since been relocated 
     to a different section of the United States Code. We have 
     also attached a brief summary of the 13 research categories; 
     a full description of each category is set forth in the 1997 
     report.
       We plan no further distribution of this report until 30 
     days after the date of this letter. At that time, we will 
     send copies of this letter to interested congressional 
     committees. The letter will also be available on GAO's home 
     page at http://www.gao.gov.
 If you have any questions, please contact me at (202) 512-
     8208 or by E-mail at [email protected]. Behn Miller Kelly and 
     Richard Burkard made key contributions to this project.
           Sincerely yours,
                                                    Dayna K. Shah,
                                        Associate General Counsel.

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             Appendix 4--Categories of Statutory Provisions


  category 1--social security and related programs, housing, and food 
                                 stamps

       This category includes the major federal health and welfare 
     programs, particularly those considered entitlements, such as 
     Social Security retirement and disability benefits, food 
     stamps, welfare, and Medicare and Medicaid. Most of these 
     provisions are found in Title 42 of the United States Code, 
     Public Health and Welfare; food stamp legislation is in Title 
     7, Agriculture.


                     category 2--veterans' benefits

       Veterans' benefits, which are codified in Title 38 of the 
     United States Code, include pensions, indemnity compensation 
     for service-connected deaths, medical care, nursing home 
     care, right to burial in veterans' cemeteries, educational 
     assistance, and housing. Husbands or wives of veterans have 
     many rights and privileges by virtue of the marital 
     relationship.


                          category 3--taxation

       While the distinction between married and unmarried status 
     is pervasive in federal tax law, terms such as ``husband,'' 
     ``wife,'' or ``married'' are not defined. However, marital 
     status figures in federal tax law in provisions as basic as 
     those giving married taxpayers the option to file joint or 
     separate income tax returns. It is also seen in the related 
     provisions prescribing different tax consequences, depending 
     on whether a taxpayer is married filing jointly, married 
     filing separately, unmarried but the head of a household, or 
     unmarried and not the head of a household.


       category 4--federal civilian and military service benefits

       This category includes statutory provisions dealing with 
     current and retired federal officers and employees, members 
     of the Armed Forces, elected officials, and judges, in which 
     marital status is a factor. Typically these provisions 
     address the various health, leave, retirement, survivor, and 
     insurance benefits provided by the United States to those in 
     federal service and their families.


         category 5--employment benefits and related provisions

       Marital status comes into play in many different ways in 
     federal laws relating to employment in the private sector. 
     Most provisions appear in Title 29 of the United States Code, 
     Labor. However, others are in Title 30, Mineral Lands and 
     Mining; Title 33, Navigation and Navigable Waters; and 
     Title 45, Railroads. This category includes laws that 
     address the rights of employees under employer-sponsored 
     employee benefit plans; that provide for continuation of 
     employer-sponsored health benefits after events like the 
     death or divorce of the employee; and that give employees 
     the right to unpaid leave in order to care for a seriously 
     ill spouse. In addition, Congress has extended special 
     benefits in connection with certain occupations, like 
     mining and public safety.


          category 6--immigration, naturalization, and aliens

       This category includes federal statutory provisions 
     governing the conditions under which noncitizens may enter 
     and remain in the United States, be deported, or become 
     citizens. Most are found in Title 8, Aliens and Nationality. 
     The law gives special consideration to spouses of immigrant 
     and nonimmigrant aliens in a wide variety of circumstances. 
     Under immigration law, aliens may receive special status by 
     virtue of their employment, and that treatment may extend to 
     their spouses. Also, spouses of aliens granted asylum can be 
     given the same status if they accompany or join their 
     spouses.


                          category 7--indians

       The indigenous peoples of the United States have long had a 
     special legal relationship with the federal government 
     through treaties and laws that are classified to Title 25, 
     Indians. Various laws set out the rights to tribal property 
     of ``white'' men marrying ``Indian'' women, or of ``Indian'' 
     women marrying ``white'' men. The law also outlines the 
     descent and distribution rights for Indians' property. In 
     addition, there are laws pertaining to health care 
     eligibility for Indians and spouses and reimbursement of 
     travel expenses of spouses and candidates seeking positions 
     in the Indian Health Service.


         category 8--trade, commerce, and intellectual property

       This category includes provisions concerning foreign or 
     domestic business and commerce, in the following titles of 
     the United States Code: Bankruptcy, Title 11; Banks and 
     Banking Title 12; Commerce and Trade, Title 15; Copyrights, 
     Title 17; and Customs Duties, Title 19. This category also 
     includes the National Housing Act (rights of mortgage 
     borrowers); the Consumer Credit Protection Act (governs wage 
     garnishment); and the Copyright Act (spousal copyright 
     renewal and termination rights).


       category 9--financial disclosure and conflict of interest

       Federal law imposes obligations on members of Congress, 
     employees or officers of the federal government, and members 
     of the boards of directors of some government-related or 
     government chartered entities, to prevent actual or apparent 
     conflicts of interest. These individuals are required to 
     disclose publicly certain gifts, interests, and transactions. 
     Many of these requirements, which are found in 16 different 
     titles of the United States Code, apply also to the 
     individual's spouse.


                category 10--crimes and family violence

       This category includes laws that implicate marriage in 
     connection with criminal justice or family violence. The 
     nature of these provisions varies greatly. Some deal with 
     spouses as victims of crimes, others with spouses as 
     perpetrators. These laws are found primarily in Title 18, 
     Crimes and Criminal Procedure, but some statutory provisions, 
     dealing with crime prevention and family violence, are in 
     Title 42, Public Health and Welfare.


      category 11--loans, guarantees, and payments in agriculture

       Under many federal loan programs, a spouse's income, 
     business interests, or assets are taken into account for 
     purposes of determining a person's eligibility to participate 
     in the program. In other instances, marital status is a 
     factor in determining the amount of federal assistance to 
     which a person is entitled or the repayment schedule. This 
     category includes education loan programs, housing loan 
     programs for veterans, and provisions governing agricultural 
     price supports and loan programs that are affected by the 
     spousal relationship.


     category 12--federal natural resources and related provisions

       Federal law gives special rights to spouses in connection 
     with a variety of transactions involving federal lands and 
     other federal property. These transactions include purchase 
     and sale of land by the federal government and lease by the 
     government of water and mineral rights.


                 category 13--miscellaneous provisions

       This category comprises federal statutory provisions that 
     do not fit readily in any of the other 12 categories. Federal 
     provisions that prohibit discrimination on the basis of 
     marital status are included in this category. This category 
     also includes various patriotic societies chartered in 
     federal law, such as the Veterans of Foreign Wars or the Gold 
     Star Wives of America.
                                  ____

     H.R. 2426--Domestic Partnership Benefits and Obligations Act 
         of 2003
       Summary: H.R. 2426 would provide fringe benefits to 
     domestic partners of federal employees. Same-sex and 
     opposite-sex domestic partners of federal employees would be 
     entitled to the same benefits available to spouses of federal 
     employees. Those benefits would include survivor annuities, 
     health insurance, life insurance, and compensation for work-
     related injuries. Additionally, H.R. 2426 would amend the 
     Internal Revenue Code by exempting domestic partner benefits 
     from federal income taxes.
       CBO estimates that enacting the bill would increase direct 
     spending by $137 million over the 2004-2008 period and by 
     $242 million over the next 10 years. Discretionary spending 
     under the bill would increase by $525 million over the 2004-
     2008 period and by about $1.3 billion over the next 10 years, 
     assuming appropriation of the necessary funds. The bill would 
     also affect federal revenues; those effects would have to be 
     estimated by the Joint Committee on Taxation (JCT).
       H.R. 2426, as introduced, would extend benefits to domestic 
     partners of active federal employees and of current and 
     prospective retirees. At the request of the sponsor, this 
     estimate excludes the cost of extending such benefits to 
     domestic partners of currently retired federal employees. 
     (Including benefits for the domestic partners of currently 
     retired federal employees would increase direct spending by 
     an additional $448 million over the 2004-2008 period and $1.4 
     billion over the 2004-2013 period; it would not result in 
     additional discretionary costs.)
       Estimated cost to the Federal Government: The estimated 
     budgetary impact of H.R. 2426 is shown in the following 
     table. The costs of this legislation fall within budget 
     functions 550 (health) and 600 (income security).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Outlays in millions of dollars, by fiscal year--
                                           -------------------------------------------------------------------------------------------------------------
                                               2004       2005       2006       2007       2008       2009       2010       2011       2012       2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               CHANGES IN DIRECT SPENDING
 
Increase in FEHBP Benefits (future                  4          9         14         19         25         32         40         49         58         69
 retirees)................................
Net Increase in FECA Outlays \1\..........          2          2          *          *          *          *          *          *          *          *
Postal Service FEHBP and FECA Costs (off-          54         59          0          0          0          0          0          0          0          0
 budget)..................................
Reduction in Survivor Annuity Payments....         -3         -7        -10        -13        -17        -21        -25        -29        -32        -36
                                           -------------------------------------------------------------------------------------------------------------
    Total, Direct Spending................         57         63          3          5          8         11         16         20         26         32
 
                                                            CHANGES IN DISCRETIONARY SPENDING
 
Agency Costs for FEHBP Benefits (active            91         96        102        109        117        125        134        143        152        162
 employees)...............................

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Agency Costs for FECA.....................          1          1          3          3          3          3          3          3          3          3
                                           -------------------------------------------------------------------------------------------------------------
    Total, Discretionary Spending.........         92         97        105        112        120        128        137        146        155        165
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The outlays shown are net of receipts from federal agencies.
* = Less than $500,000.
Notes: FEHBP = Federal Employees Health Benefits Program. FECA = Federal Employees Compensation Act. Components may not sum to totals because of
  rounding. This estimate assumes that the bill will be enacted by October 2003. The estimate does not reflect changes to the Internal Revenue Code;
  those effects would have to be estimated by JCT.

       Basis of estimate: For this estimate, CBO assumes that H.R. 
     2426 will be enacted by the end of fiscal year 2003 and that 
     domestic partners would be eligible to begin receiving 
     benefits in November 2003. CBO estimates that about 2 percent 
     of federal employees would elect to provide health care 
     and retirement benefits for a domestic partner if given 
     the opportunity. Approximately 83 percent of the costs 
     would come from partners in opposite-sex partnerships and 
     approximately 17 percent of costs derive from partners in 
     same-sex partnerships. These figures are based on 
     information from state and local governments as well as 
     corporations that have adopted similar policies. In 
     addition, domestic partners of workers who retire after 
     the bill goes into effect would be eligible to opt for 
     survivor annuity coverage, as well as retiree health care 
     benefits.
     Direct spending
       Federal Employees Health Benefits Program (FEHBP) for 
     Future Retirees. H.R. 2426 would extend eligibility for 
     health benefits to the domestic partners of retiring federal 
     employees. An employee who retires after enactment of the 
     bill would be allowed to maintain family coverage for his or 
     her domestic partner. Unlike premiums for current workers, 
     the government's share of health care premiums for retirees 
     is classified as direct spending. For each year of the 2004-
     2013 period, CBO projects that approximately 1,000 additional 
     family coverage policies would be added to the FEHBP by 
     retiring non-Postal Service workers choosing to cover 
     domestic partners. As a result, direct spending would 
     increase by $71 million over the next five years and by $319 
     million over the next 10 years. The costs associated with 
     providing benefits to the domestic partners of both active 
     and retiring Postal Service workers are discussed below.
       Federal Employees' Compensation Act (FECA) Benefits. FECA 
     provides compensation to federal civilian employees for 
     disability due to personal injury sustained while in the 
     performance of duty. Married workers currently receive 
     slightly higher FECA benefits for wage replacement than do 
     single workers. Additionally, if an employee dies of an 
     employment-related injury or disease, his or her spouse 
     receives monthly compensation equal to 50 percent of the 
     deceased employee's salary. CBO projects that H.R. 2426, if 
     enacted, would provide FECA benefits to approximately 1,200 
     domestic partners of non-postal federal employees each year. 
     Additional costs would total $35 million; agencies would have 
     to cover those costs over time from appropriated funds (see 
     below). Because increases in agency contributions would lag 
     behind the increased costs, there would be a net increase in 
     direct spending of $4 million over the 2004-2013 period.
       Postal Service Employees. Postal Service employees would 
     also be eligible for domestic partner coverage under H.R. 
     2426. CBO estimates that providing health benefits to the 
     domestic partners of active postal workers would result in 
     about 11,000 postal employees moving from individual to 
     family coverage plans. Additionally, CBO anticipates 
     that approximately 500 of the postal workers who would 
     retire each year would maintain FEHB coverage for their 
     partners. Together, these benefits would cost $311 million 
     over the 2004-2008 period and $814 million over the 2004-
     2013 period. Additionally, extending FECA benefits to 
     Postal Service employees would cost $15 million over the 
     next five years and $30 million over the next 10 years.
       The operations of the Postal Service are classified as off-
     budget (like Social Security), although the total federal 
     budget records the agency's net spending (outlays less 
     offsetting collections). The Postal Service's mandate 
     requires it to set postage rates to cover its operating 
     expenses, and thus it would be expected to cover 100 percent 
     of the increased costs associated with H.R. 2426 from postage 
     receipts. However, the Postal Service Retirement System 
     Funding Reform Act of 2003 (Public Law 108-18) effectively 
     froze postage rate increases until 2006. Therefore, for the 
     2004-2005 period, the increased costs resulting from H.R. 
     2426 would not be offset by higher postal receipts. Beginning 
     in 2006, the Postal Service would be able to raise postage 
     rates to account for its increased costs. As a result, CBO 
     estimates that extending FEHBP and FECA benefits to the 
     domestic partners of Postal Service workers would increase 
     off-budget direct spending by $113 million over the 2004-2005 
     period and would have no net effect after that.
       Survivor Annuities. Under current law, a federal employee 
     who is eligible to receive retirement benefits may elect to 
     provide his or her spouse with a survivor annuity by reducing 
     the value of the employee's annuity. Participants in the 
     Civil Service Retirement System (CSRS) face different 
     reductions and survivor annuity benefit levels than 
     participants in the Federal Employees' Retirement System 
     (FERS). Under both plans, those who elect survivor benefits 
     face a reduction in their current annuity of between 5 
     percent and 10 percent.
       Under H.R. 2426, federal employees who retire would be able 
     to choose to reduce the value of their own annuities in order 
     to provide survivor annuities for their domestic partners. 
     CBO estimates that 85 percent of federal employees with 
     domestic partners would elect survivor benefits if given the 
     opportunity. On that basis, CBO projects that approximately 
     2,000 newly retired federal employees each year would add 
     survivor annuities for their domestic partners and thus 
     collect smaller annuities. However, some of these individuals 
     would die and their partners would begin collecting survivor 
     benefits. Over the next 10 years, the savings from the 
     reduction in retirees' annuities would outweigh the 
     additional costs for survivors' annuities. CBO estimates that 
     direct spending would decrease by $51 million over the 2004-
     2008 period and by $194 million over the 2004-2013 period.
       Coverage of Current Retirees. H.R. 2426, as introduced, 
     would extend domestic partner benefits to all current federal 
     retirees, as well as active workers. However, the 
     sponsor indicated to CBO that this was not the intent of 
     H.R. 2426 and requested that CBO estimate the costs of the 
     bill under the assumption that it would be changed to 
     include only active workers and those who retire after the 
     bill's enactment. The above estimate reflects that assumed 
     change. If all current retirees were to receive the same 
     benefits that new retirees would receive under H.R. 2426, 
     the cost of the bill would increase by an additional $448 
     million over the 2004-2008 period and $1.4 billion over 
     the 2004-2013 period.
     Discretionary spending
       Health Benefits for Active Employees. H.R. 2426 would allow 
     federal employees to add domestic partners to their health 
     insurance policies. CBO estimates that about 80 percent of 
     employees who add a domestic partner would switch from 
     individual coverage to family coverage. Federal agencies pay 
     about 72 percent of health-care premiums for active 
     employees; thus, as premiums rise, so do agency 
     contributions. In 2004 family coverage policies for active 
     employees are projected to cost the federal government 
     approximately $3,800 more than individual coverage policies. 
     CBO estimates that providing additional family coverage 
     policies to about 24,000 non-postal employees who would elect 
     domestic partner coverage would increase spending subject to 
     appropriation by $515 million over the 2004-2008 period and 
     by $1.2 billion over the 2004-2013 period.
       Federal Employees' Compensation Act Benefits. As discussed 
     under the direct spending section, this bill would result in 
     increased spending for federal workers' compensation. The 
     reimbursement of FECA expenses paid by the Department of 
     Labor comes from discretionary salary and expense accounts of 
     federal agencies. Because these expenses are ultimately borne 
     by the employing agency, CBO estimates discretionary spending 
     would increase by $11 million over the 2004-2008 period and 
     by $26 million over the 2004-2013 period to pay for these 
     benefits.
       Federal Employees' Group Life Insurance (FEGLI) Benefits. 
     Under current law, the federal government pays one-third of 
     basic life insurance premiums and employees pay two-thirds. 
     Optional coverage that provides benefits above the basic 
     level is paid for entirely by the employee. H.R. 2426 would 
     allow federal employees to purchase Option C coverage, which 
     would insure a domestic partner for up to $25,000. The 
     premium for this option is actuarially sound; over time, 
     premiums paid in to the account equal the payouts from the 
     account. While the cash flow in any given year could be 
     positive or negative, the overall impact on the federal 
     budget would be negligible.
     Tax changes
       H.R. 2426 contains provisions that would amend the Internal 
     Revenue Code of 1986. Those changes would likely have tax 
     implications that CBO does not estimate. The Joint Committee 
     on Taxation normally supplies the estimate of the tax effects 
     of legislation.
       Estimate prepared by: Van Swearingen and Geoff Gerhardt.
       Estimate approved by: Peter H. Fontaine, Deputy Assistant 
     Director for Budget Analysis.

                          ____________________