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Federal Employees News Digest : July 8, 2013
July 8, 2013 Vol. 62, No. 49 3 Visit us on the Internet at www.FederalDaily.com thing---the Federal Employees Health Benefits Program, the Federal Group Life Insurance Program, the Federal Employees Dental Admissions Insurance Program, the Family Medical Leave Act, and the Federal Employees Compensation Act for workers' comp situations." "I think it's a major precedential deci- sion by the Supreme Court, recognizing states' rights to recognize gay marriage," Mahoney said. "I think it's going to have a wide-ranging impact on federal employ- ees who are gay and want to be married." Mahoney added that beyond affirming states' rights on marriage law in general, the ruling also in effect specifically "rec- ognizes a fundamental right to same-sex marriage." State law on marriage key For now, the key for feds seeking same- sex spousal benefits resides in state laws addressing same-sex marriage. State laws still hold sway as to what can be considered a legal marriage---and so the state of a mar- ried same-sex couple's domicile determines whether Winds or will make the difference. New York, Massachusetts, Maine, Oregon---in all, 12 states and the District of Columbia, currently permit same-sex marriage. "What [Winds or] means for same- sex federal employees who live in states that recognize their marriage is that their spouse should be eligible for various federal employment benefits," Mahoney explained. "If [the couple] lives in a state which does not permit gay marriage, or recognize gay marriages which were legally done in another state, then there will still be limita- tions on the benefits available---as many of the benefits refer [or] relate to a person's place of domicile or residence," Jennifer J. Corcoran, a partner at the Tully firm, told FEND. But as a longer-term result of Windsor--- perhaps sooner than later---eligibility based on marriage law in the state of domicile is likely to give way to a more liberal interpre- tation of the law. "Certainly, the biggest issue that remains to be dealt with down the road is this: if a legally-married gay couple moves from a state in which their marriage is legal and recognized to another state where it is not, for state purposes, then the question is all about what recourse they may have," Mahoney told FEND. "But, from a purely administrative per- spective, [regarding federal employees] I don't think the federal government will do anything but simply recognize the marriage," Mahoney continued. "It would become a nightmare to try to do this in any other way ... if a couple has a valid marriage license from a state, then [both members of the couple will] be eligible for federal benefits across the board." The conundrum of same-sex spouses who have moved to states that have not legalized same-sex marriage likely will be wrestled over in the coming months. For now, same-sex spouses of federal employ- ees domiciled in same-sex marriage states should be eligible for the full range of ben- efits that heterosexual spouses receive. Windsor should end 'loopholes' Mahoney said he also expected Winds or would close current gray areas and loop- holes regarding the issue, most of which currently discriminate against but also occasionally favor gay couples. "Protections for same-sex spouses against the prohibited personnel practice of marital status discrimination should also be extended to these employees," Mahoney noted. "And federal employees should also be able to take Family and Medical Leave Act leave to care for their ill same-sex spouse." "Additionally, the ruling should close loopholes allowing federal employees to engage in nepotism and conflicts of inter- est with a same-sex spouse," Mahoney said. Tax treatment yet unclear Still, some observers pointed to a lack of clarity on next steps in some key areas, noting vagueness in the IRS's immediate reaction to the decision, for example. "We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act," the IRS said in a statement issued the next day. "We will be work- ing with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future." Others, including some of Mahoney's colleagues, don't see much lack of clarity in what the IRS's take on the ruling will be. "I'm not sure why it [would be] uncer- tain how the IRS will interpret it," Tully's Corcoran told FEND. "If the couple is lawfully married, then the IRS should be recognizing any and all exemptions, deduc- tions, benefits, etc., available to opposite-sex spouses." "If people are married, they are enti- tled to be treated as such---that is, they can file a joint tax return," fellow Tully attorney Robert J. Rock told FEND, echo- ing Corcoran. "Same-sex married couples should be viewed the same as 'traditional' married couples for all purposes." "Clearly, they can [even] file a joint bankruptcy petition if they chose, a matter reserved for married couples," Rock added. Agencies show signs of action Federal agencies are ramping up to be in compliance with the decision. Defense Secretary Chuck Hagel said the Defense Department welcomed the ruling. "The department will immediately begin the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies." Hagel said in a statement. "The Department of Defense intends to make the same benefits available to all military spouses---regardless of sexual orientation---as soon as possible," he said. Directives likely "I think we're going to see over the coming months the administration will be issuing executive orders and presidential directives equalizing benefits across the board," Mahoney told FEND. Mahoney also predicted the holdout continued from page 1 Don’t miss our discussion of weekly news topics. Discuss these stories and more with your fellow federal workers at www.FederalSoup.com. continued on page 4
July 1, 2013
July 15, 2013