The
General
Services Administration (“GSA”) proposes
a new rule which would amend the Federal Travel Regulation
(“FTR”). GSA’s rule proposes to amend
the definition of “Domestic Partnership,”
and to add terms and definitions for “Marriage” and “Spouse.” “Domestic
partnership” is to be updated to read that same-sex domestic partners: that have a documented domestic
partnership, and reside in a state (or foreign country) whose laws do not
recognize the validity of same-sex marriage; will still be recognized as an
immediate family member under the FTR; but only if they certify that they would marry but for the failure of their state
of residence to permit same-sex marriage. Those, however, who reside in states (or foreign countries)
that now permit same-sex marriage, will
no longer be considered domestic partners or immediate family members
because of the proposed rule’s certification
requirement.
Previously, the Defense of Marriage Act (“DOMA”) prevented the Federal Government
from recognizing same-sex marriages for the
purposes of travel and relocation entitlements. According to Section 3 of DOMA, when the
term “marriage” was used in Federal law it meant only a legal union between one man and one woman as husband and wife,
and the term “spouse” referred only to a
person of the opposite sex who is a husband or a wife. In an effort to determine what authority
executive agencies had to extend such
benefits to same-sex domestic partners of Federal employees, President
Obama signed a Presidential Memorandum on June 17, 2009 asking the heads of all other executive departments and agencies
. . .to conduct a review of department and agency benefits. On June 2, 2010, agencies were directed by
President Obama to immediately take
actions . . . to extend certain benefits, including travel and relocation
benefits, to same-sex domestic partners of Federal employees. GSA complied by amending the definition of “immediate family” in the FTR to include same-sex domestic partners and
their dependents.
On June 26, 2013, however, things changed when
the Supreme Court of the United States (“Supreme Court”) held Section 3 of DOMA
unconstitutional (United States v. Windsor,
570 U.S. 12 (2013)). GSA is now permitted to provide travel and relocation benefits to
Federal employees who are legally married
to spouses of the same sex. Thus, GSA’s proposed new rule adds a definition for the terms “Marriage” and “Spouse,” and proposes to
revise the definition of the term “Domestic Partnership.” The term “marriage” is proposed to include any marriage:
- including a marriage between individuals of the same sex,
- that was entered into in a state (or foreign country) whose laws authorize the marriage,
- even if the married couple is domiciled in a state (or foreign country) that does not recognize the validity of the marriage; and
- includes common law marriage in states where
such marriages are recognized,
GSA’s proposal tailors FTR benefit coverage for same-sex couples who would marry, but live
in states where same-sex marriage is prohibited. GSA reasons that same-sex couples living in
states that permit them to marry have access
to many . . . of the protections that married opposite-sex couples enjoy. Federal employees living in states where they are able to marry, have less need for a separate path by which same-sex domestic partners are eligible for FTR
benefits. Thus, for Federal
employees not allowed to marry under the
laws of the states in which they live, the GSA believes it is appropriate to extend FTR coverage to same-sex domestic partners
in the form described in this regulation.
Interested parties are invited to submit
written comments by August 25, 2014, (referencing FTR case 2014-301) to the
Regulatory Secretariat by any of the following methods:
- Electronically: Federal eRulemaking Portals: http://www.regulations.gov;
- Fax: 202-208-1398; OR
- Mail: General Services
Administration, Regulatory Secretariat (MVCB), 1800 F Street NW., Attn: Hada
Flowers, Washington, DC 20405-0001.
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