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,
The term “marriage,” however, will not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state (or foreign country) law that are not denominated as a marriage under that state’s (or foreign country’s) law.
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.
This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.