Secretary of State Hillary Clinton may soon issue a departmental policy to treat the domestic partners of foreign service officers posted overseas the same as spouses for purposes of training, travel, and protection against violence. Is this legal under the federal Defense of Marriage Act?
The Advocate has obtained a draft of a letter from Secretary of State Hillary Clinton to employees of the State Department that details her intentions to extend certain benefits to same-sex partners of foreign service officers posted abroad.
The Secretary of State claims an inherent authority to change the regulations of the Foreign Service Manual and departmental policies. Institutional LGBT organizations, including GLIFAA (Gays and Lesbians in Foreign Affairs Agencies), are excited about this move. In fact, GLIFAA supports Congressman Howard Berman’s decision to remove similar language from the Foreign Service Authorization bill:
Congressman Howard Berman also intended to include authorizing text that would have provided full benefits to same-sex partners working in the foreign service. Berman pulled this language out of the bill only after repeated assurances from the Obama Administration that equality would be extended in the "very near future."
"I am deeply committed to ending the long-standing practice of treating the committed partners of gay and lesbian Foreign Service officers like second-class citizens," Berman said. "I would not agree to strike a provision in my own bill if I did not feel confident that this would be taken care of by the Administration."
Here’s the core of Secretary Clinton’s message to State Department employees, as reported in the Huffington Post on Saturday:
Providing training, medical care and other benefits to domestic partners promote the cohesiveness, safety and effectiveness of our posts abroad," she says in the message, a copy of which was obtained by The Associated Press.
"It will also help the department attract and retain personnel in a competitive environment where domestic partner benefits and allowances are increasingly the norm for world-class employers," she says.
"At bottom, the department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do," Clinton says.
The Washington Post has obtained a copy of Secretary Clinton’s memo as well, and provides these details:
Clinton’s draft includes the following list of additional benefits and allowances:
— Diplomatic passports;
— Inclusion on employee travel orders to and from posts abroad;
— Shipment of household effects;
— Inclusion in family size calculations for the purpose of making housing allocations;
— Family member preference for employment at posts abroad;
— Use of medical facilities at posts abroad;
— Medical evacuation from posts abroad;
— Emergency travel for the partners to visit gravely ill or injured employees;
— Inclusion as family members for emergency evacuation from posts abroad;
— Subsistence payments related to emergency evacuation from posts abroad;
— Inclusion in calculations of payments of overseas differentials and allowances (e.g., payment for quarters, cost of living, and other allowances);
— Representation expenses;
— Training at the Foreign Service Institute.
Of course, I support equal treatment of partners of American diplomatic service members as a matter of fairness. Of course it is the right thing to do. Of course it’s only sensible to treat same-sex domestic partners — or even same-sex married couples, since we actually have those in America now! — the same as married couples in the Foreign Service. But does the Secretary of State really have such an inherent power? Will Clinton’s move violate the federal Defense of Marriage Act, which states:
In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage’ means
only a legal union between one man and one woman as husband and wife,
and the word `spouse’ refers only to a person of the opposite sex who is
a husband or a wife.
Since the current Foreign Service Manual and existing department policies specify the treatment of spouses, can Secretary Clinton expand that definition to include same-sex partners without provoking a swift — and possible successful — legal challenge under the federal Defense of Marriage Act?