Comparing Policies to Kennedy's, AG Holder Expands Rights for Same Sex Couples

By on February 9, 2014 in Current Events, Human Resources with 149 Comments

Attorney General Eric Holder is publicizing changes being made in the Justice Department to benefit same-sex married couples. The Justice Department is eliminating the distinction between same-sex and opposite-sex married couples in the federal criminal justice system.

Holder compared his actions and the gay-rights movement to the 1960’s civil rights movement and, at least by implication, compared his actions to those of Robert Kennedy who was the attorney general for four years with his statement that “The Justice Department’s role in confronting discrimination must be as aggressive today as it was in Robert Kennedy’s time.”

Most readers are probably aware that seizing upon gay issues is not a new trend within the Obama administration. The administration has highlighted issues of importance to the gay community for some time and gay rights have been one of the biggest points of contention between the U.S. and Russia at the Olympic games.

17 states now permit gay marriage. The attorney general is set to extend the federal government’s recognition of same-sex marriages even in the states that do not consider same sex marriage to be legal in federal legal matters, including bankruptcies, prison visits and survivor benefits.

As an example, a same-sex couple legally married in Vermont can now have a federal bankruptcy proceeding recognized in Mississippi, a state that does not allow same-sex marriages. Previously, the federal government could challenge the couple’s joint bankruptcy on the grounds that Mississippi does not recognize same-sex marriage in that state.

The attorney general is also instructing Justice department employees to give lawful same-sex marriages the same recognition as opposite sex married couples.

The new policies were announced prior to a speech given to a gay rights lobbying organization, the Human Rights Campaign.

Supreme Court decisions issued in 2013 required the federal government to recognize same-sex marriages in states that allow them. The decision did not address the status of same sex couples living in states that do not recognize same sex marriage and it is not known how the aggressive actions of the government will eventually be received in the courts.

The action by the Justice Department is not universally accepted. Tony Perkins, president of the Family Research Council, said in a statement that “The news that the Justice Department will extend sweeping recognition to ‘marriages’ of same-sex couples, even in states that do not recognize such unions, is yet another illustration of the lawlessness of this administration.”

John Berry, the former director of the Office of Personnel Management (OPM), was OPM director from April 2009 – April 2013. The OPM website noted that Berry was “selected by President Obama as the federal government’s chief people person.” More pointedly,  The Washington Blade, which describes itself as “America’s leading gay news source” wrote that “The Obama administration has appointed lesbian attorney Elaine Kaplan as general counsel for the U.S. Office of Personnel Management, where she will serve under the office’s gay director, John Berry.” Being openly gay was obviously considered a political plus for the administration and he was frequently cited as being the highest ranking gay person in the administration.

In 2013, Berry became the Ambassador to Australia where it was duly noted in the Australian press that he was “the first openly gay US ambassador to serve in a Group of 20 nations.” In August, after having been confirmed as ambassador, Berry married his partner of 17 years at a private ceremony in Washington D.C. The Senate also approved several people nominated by the administration to be high ranking and who were highlighted as being openly gay at about the same time.

The administration’s embrace of gay rights has certainly benefitted some federal employees. In 2013, the acting director of OPM, Elaine Kaplan, issued a memorandum to federal agencies outlining the areas in which OPM had expanded gay rights for federal employees. Entitled Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families, the memo highlighted these general areas where benefits to Federal employees and annuitants who have legally married a spouse of the same sex. 

  • health insurance
  • life insurance
  • dental and vision insurance
  • long-term care insurance
  • retirement
  • flexible spending accounts

The memo summarizing these actions is at the end of this article.

While the federal bureaucracy is aggressively expanding the rights of same sex couples, challenges to bans on same-sex marriage are under way in a number of states. And, as noted, the new position taken by the Justice Department is vigorously opposed by some and it is likely the courts will be reviewing these decisions. The Justice Department and other federal agencies are not waiting for a final decision by the Supreme Court but aggressively moving out in what the administration sees as a new frontier for civil rights as comparable to the posture taken on civil rights by the Kennedy administration.

Human Resources Memo on Benefits for Gay Feds

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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