Responding to Emerging Issues: The Windsor Decision
December 5, 2013
by Walter M. Shaub, Jr.
As Director, I recognize that one of the most important ways in which OGE can serve the executive branch ethics community is by providing timely and accurate advice on emerging issues affecting the ethics program. Earlier this year, OGE had an opportunity to do just that when the Supreme Court issued its decision in the landmark case of United States v. Windsor.
The Windsor decision struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Section 3 of DOMA had defined the terms “marriage” and “spouse” as being inapplicable, for purposes of federal laws, to same-sex spouses. Significantly, these terms appeared in more than 1,000 federal laws, including the federal ethics laws, and section 3 of DOMA served to exclude individuals in same-sex marriages from the coverage of those laws. As a result of the Supreme Court’s decision, however, the federal ethics rules began applying to employees in same-sex marriages in the same way that they applied to all other married employees, starting on August 19, 2013.
This change imposed new ethical responsibilities on federal employees in same-sex marriages because they would no longer be excluded from the coverage of ethics rules using the term “marriage” or “spouse” or, by implication, from the coverage of ethics rules using the term “relative.” Among other things, this means that the financial interests of their same-sex spouses are now treated as their own financial interests for purposes of the criminal conflicts of interest laws. For example, a federal procurement official is now prohibited from awarding a contract to a company in which her same-sex spouse holds stock. In addition, this means that employees who are required to file financial disclosure reports must now include their same-sex spouses’ financial information in their financial disclosure reports.
Following the Supreme Court’s issuance of the Windsor decision, OGE worked closely with the Justice Department to develop guidance explaining the effect of that decision. The guidance includes suggested language for federal agencies to use when communicating directly with their employees about the new reach of the federal ethics rules. After clearing both the guidance and the suggested language with the Justice Department, OGE acted quickly to distribute them to ethics offices in every executive branch agency.
As with the Windsor decision, OGE works diligently to keep federal agencies up to date on developments affecting the ethics program. Our goal is to ensure that all federal employees know how to comply with the government’s ethics rules and are able to avoid inadvertent violations. In the days ahead, OGE will continue to monitor emerging issues, and we will be sure to provide timely guidance that will help keep affected employees on the right side of the ethics rules.