Q. I am a House staffer in a same-sex marriage, and I have a question about the effect of the Supreme Court’s decision regarding the Defense of Marriage Act upon House ethics rules. For example, the law firm my spouse works for hosts an annual retreat where attorneys’ spouses are invited to attend as well. But, as I understand the gift rules, it might violate the rules if I allowed the law firm to pay for my expenses to attend the event. While the rules allow staffers to have their expenses paid for at spouses’ events such as these, I have generally not qualified as a “spouse.” Does the DOMA ruling change things with respect to House ethics rules like this one?
A. Yes! The Supreme Court’s ruling on the Defense of Marriage Act could certainly have implications under House ethics rules. The word “spouse” appears almost 150 times in the House Ethics Manual, and the Supreme Court’s decision could come into play almost every time it is mentioned, particularly for members and staffers in state-recognized same-sex marriages.
As you may know, the status of same-sex couples under House ethics rules has been the subject of debate for years. In 2010, for example, the House Ethics Committee considered changing the financial disclosure rules to require members and staffers in legal same-sex marriages to disclose the same spousal financial information required to be disclosed by members and staffers in opposite-sex marriages. The proposed new instructions regarding financial disclosure would have required members and staffers in same-sex marriages in states that recognize them to “disclose all required spousal information on your Financial Disclosure Statement.”
The proposal met objection from both sides. Opponents of same-sex marriage voiced concern that the proposed revision to the rules would be an implicit federal recognition of same-sex marriage.
Supporters of same-sex marriage objected that the revision imposed burdens on same-sex spouses without the benefits of being recognized as married under federal law. The revision failed. Marital status comes into play for many other ethics rules as well. But it’s not all bad news.
While in some cases federal recognition of state same-sex marriages would tighten restrictions for members and staffers in such marriages, in others it would relax them.
For example, in the circumstance you raise, the House gift rule forbids members and staffers from accepting anything of value from anyone unless an exception applies. So, in general, it is impermissible for a member or staffer to accept a gift such as travel expenses for a company’s business retreat.
There is an exception, however, that allows members and staffers to accept benefits that result from “outside business or employment activities of the spouse of the member or staff person.” A classic example is the one in your question: A business holds an annual retreat and invites spouses to attend.
In the past, this exception has not extended to unmarried couples or to staffers in same-sex marriages without obtaining an exemption from the House Ethics Committee. The Supreme Court’s decision on DOMA may change things. The provision of DOMA at issue in the Supreme Court decision provided that for purpose of federal laws, rules and regulations, “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.” The Supreme Court struck down this provision as unconstitutional, effectively requiring federal law to acknowledge legally valid, state same-sex marriages.
Thus, for the exception allowing members and staffers to accept benefits from “outside business or employment activities of the spouse of the Member or staff person,” DOMA would have limited the term “spouse” to participants in opposite-sex marriages. Now that this aspect of DOMA has been struck down, it would seem “spouse” as used in this exception, would extend to staffers like you who are in state-recognized same-sex marriages. To be sure, seek the guidance of the Ethics Committee.
Moreover, this is just one of many circumstances where federal recognition of state same-sex marriages could change things under House ethics rules. Any member or staffer in such a marriage would be wise to revisit the rules with this in mind.
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to email@example.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.