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New Federal Rule Underscores Importance of DOMA Repeal

Because of DOMA, some federal employees who have a spouse serving on active duty in a foreign country will not receive new protections, as it allows for discrimination against them based on their sexual orientation.
Ian S. Thompson,
Senior Legislative Advocate,
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October 5, 2011

On Friday, the Office of Personnel Management (OPM) published a final rule in the Federal Register to provide eligible federal employees up to 12 workweeks of unpaid leave for “qualifying exigency purposes.” Just what are qualifying exigencies, you ask yourself? Well, under the rule, qualifying exigencies arise when the spouse, son, daughter or parent of an employee is on active duty in the Armed Forces, or has been notified of an impending call or order to active duty status.

Sounds simple enough, right? Providing the protections of the Family and Medical Leave Act (FMLA) to federal employees whose spouse, son, daughter or parent is serving in the Armed Forces on active duty in a foreign country (or is about to) just makes sense as the right, common sense thing to do. As OPM states in its summary of the rule, it is intended to help eligible federal employees manage family affairs when their family members are serving on active duty.

Particularly considering the current post-“Don’t Ask, Don’t Tell” (DADT) world we live in, extending these protections to lesbian, gay and bisexual service members whose spouses are federal employees likewise seems like the fair, common sense thing to do. However, DADT’s demise left one remaining federal law that mandates federal discrimination against people based on their sexual orientation — the misnamed Defense of Marriage Act (DOMA). And it is because of DOMA that those federal employees who have a spouse serving on active duty in a foreign country will not be included in the protections of this new federal rule.

If this strikes you as both senseless and heartless, I can simply say that it is yet another perfect illustration of the real-world harms DOMA has done to tens of thousands of married same-sex couples and their children and families, while doing absolutely nothing to defend anyone’s marriage.

When you dig deeper into the rule, the needless cruelty done to same-sex couples, where one member is serving in the U.S. Armed Forces on active duty no less, becomes even more striking. One of the qualifying exigencies I mentioned earlier is to, “attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of a covered military member.” Do same-sex couples in these situations deserve less family support? According to DOMA, the answer is yes. In fact, DOMA considers these married couples legal strangers under federal law.

It is a strange and sad irony that DADT’s demise has allowed lesbian, gay and bisexual service members to serve their country openly and honestly; and yet the married same-sex spouses of these service members who are federal employees can be denied something as basic as the ability to use FMLA time to take part in family support services.

Enough is enough. DOMA needs to join DADT in history’s trash bin. DOMA’s continued existence does daily harm to tens of thousands of American families. Congress should act to repeal DOMA — the last remaining federal law that expressly discriminates against a group of Americans based purely on their sexual orientation. Tell Congress to pass the Respect for Marriage Act — legislation that would completely repeal DOMA — today.

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