Same-Sex Spouses Now Covered Under Federal Ethics Regulations

August 22, 2013


On August 19, 2013, the United States Office of Government Ethics (“OGE”) issued a new interpretation of the terms “marriage” and “spouse” in light of the Supreme Court’s recent decision in United States v. Windsor, 133 S. Ct. 2675 (June 26, 2013), which struck down Section 3 of the Defense of Marriage Act as unconstitutional.

Under OGE’s new interpretation, the terms “marriage” and “spouse” as used in federal ethics statutes and regulations will now include same-sex marriages and spouses—regardless of the state of residency of the official or employee—and the term “relative” will likewise include same-sex spouses. This interpretation will impact, inter alia, coverage of the primary criminal conflict of interest statute (18 U.S.C. § 208) and eligibility for a Certificate of Divestiture (5 C.F.R. § 2634.1003).

The terms “marriage,” “spouse,” and “relative” will not include officials and employees in a civil union, domestic partnership, or other legally recognized relationship other than marriage—although such relationships may trigger the impartiality provisions of the Standards of Ethical Conduct for Employees of the Executive Branch. 5 C.F.R. § 2635.

The effective date of this new interpretation is August 19, 2013, and the interpretation is only prospective. As such, disclosure reports filed prior to the effective date would not be amended, and so financial disclosure relating to same-sex spouses need only be included in future reports.

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If you would like to discuss this matter further, please contact Bob Rizzi at (202) 383-5322, Jonathan Singer at (202) 383-5238, or your primary contact at O’Melveny & Myers LLP.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Bob Rizzi, an O'Melveny partner licensed to practice law in California, District of Columbia and New York, and Jonathan Singer, an O'Melveny associate licensed to practice law in the District of Columbia and Oregon, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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