Federal Partners Legislation and ‘Special’ Rights

Rep. Baldwin (D-WI)

Today, the House of Representatives held the first hearing on the Domestic Partner Benefits and Obligations Act (H.R. 2517), the lead sponsor of which in the House is openly lesbian Rep. Tammy Baldwin.  Kerry Eleveld covered the hearing live on Twitter, so I’d suspect she’ll have a more complete report forthcoming.  I’d like to take this post to focus in on one part of the hearing — the opposition to the bill — to raise a larger question about the bill.

GOP Rep. Jason Chaffetz (UT) repeatedly expressed repeated concerns about discrimination . . . against heterosexuals.  Among his comments, per Eleveld, is one that “heterosexual couples who are not married would not have the same benefits as same-sex couples under this bill.”  Baldwin, per Eleveld, responded: “Should heterosexuals desire those benefits, they would have the opportunity to marry.”

Rep. Chaffetz (R-UT)

As much as Baldwin might be able to dismiss that concern as to Utah and Wisconsin citizens, and as poorly as Chaffetz appeared to ask the question, there is a related question there that is very real and that the language of the bill does not resolve.  The bill speaks only in terms of “domestic partners” with that almost quaint in some areas of the country “affidavit” requirement where same-sex couples, basically, attest that they are married in all but name.

The reality today, though, is that there are an ever-growing number of states in which there are same-sex couples married in name as well as in theory.  That means that, for example, a married federal employee in Massachusetts married to a partner of the same sex, following the hypothetical passage of this bill, would be married under Massachusetts law, in a domestic partnership under federal employment regulations and single under federal tax and other laws.

If that doesn’t illustrate the long-term unsustainability of this mismatch of laws, I don’t know what does.

[If you wish to dig into the weeds of my initial and revised proposed amendment, please read on beyond the jump -- and also jump in the conversation with your thoughts.]

In order to keep this bill centered on equal rights and not “special” rights — clearly the angle sought out by Rep. Chaffetz — and in order to simplify the statutory language over time as changes in marriage laws continue, it seems to me that this legislation needs to be amended, hopefully in committee, in such a way that a state’s recognition of same-sex relationships supersedes and substitutes for the affidavit requirement.

[UPDATE: After some discussion off-line, in e-mail and in comments, a slightly different amendment might make my purpose more clear.  Rather than amending Section 2 (a) and referencing Section 2 (b), as I had proposed initially, it might be wiser to just amend Section 2 (b) itself.  Though a technically more complex amendment, it is rather simple.  Please bear with me.

The current bill reads:

(b) Certification of Eligibility- In order to obtain benefits and assume obligations under this Act, an employee shall file an affidavit of eligibility for benefits and obligations with the Office of Personnel Management identifying the domestic partner of the employee and certifying that the employee and the domestic partner of the employee--

(1) are each other's sole domestic partner and intend to remain so indefinitely;
(2) have a common residence, and intend to continue the arrangement;
(3) are at least 18 years of age and mentally competent to consent to contract;
(4) share responsibility for a significant measure of each other's common welfare and financial obligations;
(5) are not married to or domestic partners with anyone else;
(6) are same sex domestic partners, and not related in a way that, if the two were of opposite sex, would prohibit legal marriage in the State in which they reside; and
(7) understand that willful falsification of information within the affidavit may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification and may constitute a criminal violation.

I would amend that as follows:

(b) Certification of Eligibility- In order to obtain benefits and assume obligations under this Act, an employee shall file an affidavit of eligibility for benefits and obligations or other certification of eligibility, as prescribed below, with the Office of Personnel Management.

(1) Requirements- The affidavit of eligibility for benefits and obligations shall identify the domestic partner of the employee and certify that the employee and the domestic partner of the employee--

(A) are each other's sole domestic partner and intend to remain so indefinitely;
(B) have a common residence, and intend to continue the arrangement;
(C) are at least 18 years of age and mentally competent to consent to contract;
(D) share responsibility for a significant measure of each other's common welfare and financial obligations;
(E) are not married to or domestic partners with anyone else;
(F) are same sex domestic partners, and not related in a way that, if the two were of opposite sex, would prohibit legal marriage in the State in which they reside; and
(G) understand that willful falsification of information within the affidavit may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification and may constitute a criminal violation.

(2) Other Certification of Eligibility- If a state otherwise formally recognizes same-sex relationships, whether through marriage, civil unions, domestic partnership registry or otherwise, proof of this recognition shall supersede and substitute for the certification otherwise required in subsection (b)(1).

The "substitute" language will prevent the three different categories of relationship problem that I discussed above.  The "supersede" language will prevent opponents from saying that same-sex couples are allowed to get married in state "X" but even if they choose not to do so could still receive the benefits contained in this bill without getting married.

This narrows the scope of the bill but also provides a more clear statement that all we are seeking here is equality and simplifies federal law to reflect the factual reality the marriage does not have a uniform definition regarding same-sex couples in the United States.

This makes clear that it is only providing another means of providing the certification for the domestic partner benefits, and is no more less an abrogation of the principles of Defense of Marriage Act than is the initial bill itself.]

Thoughts?

[My initial proposed amendment was as follows.

Section 2 (a) of the bill reads:

(a) In General- An employee who has a domestic partner and the domestic partner of the employee shall be entitled to benefits available to, and shall be subject to obligations imposed upon, a married employee and the spouse of the employee.

I would amend it as such:

(a) In General- An employee who has a domestic partner and the domestic partner of the employee shall be entitled to benefits available to, and shall be subject to obligations imposed upon, a married employee and the spouse of the employee.  If a state otherwise formally recognizes same-sex relationships, whether through marriage, civil unions, domestic partnership registry or otherwise, proof of this recognition will supersede and substitute for the affidavit requirement otherwise imposed in subsection (b).

For the reasons, stated above, I think the above amendment to subsection (b) makes more sense for a number of reasons.]

* * * * *

Also of note in the hearing:

• The Obama White House, through Office of Personnel Management Director John Berry who testified at today’s hearing, strongly supports the bill.
• Rep. Baldwin stated, in answering another question, per Eleveld, “she expects a partial DOMA repeal bill will be introduced later this congressional session.“  Based on the current climate in Congress and around the nation, I’d imagine that would be a repeal of Section 3 of DOMA, the portion that defines marriage as being only between a man and a woman under federal law.

Popularity: 2% [?]