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Developments at OGE: Same-Sex Marriage and Ethics Rules

Developments at OGE: On August 19, 2013, the Office of Government Ethics (OGE) issued a new legal advisory discussing the effects of the Supreme Court's recent decision in United States v. Windsor on federal ethics rules. In Windsor, which was previously analyzed in this blog, the Court struck down the provision of the federal Defense of Marriage Act which had set the default definition of "marriage" as excluding same-sex marriages.

OGE is the central federal office responsible for overseeing the ethics rules (such as conflict of interest rules) for executive branch employees.  Although many agencies have their own internal ethics rules, OGE sets the government-wide policy to implement the relevant ethics statutes for federal employees.  OGE's legal advisory announced that all references to "marriage", "spouse" and "relative" in federal ethics regulations include same-sex marriages and same-sex spouses, irrespective of whether the state of residence specifically recognizes the validity of that marriage. OGE noted that these expanded definitions only apply to same-sex marriages. Civil unions, domestic partnerships or other non-marriage legal relationships do not fall into these expanded definitions, although they may qualify for the larger category of "covered relationship" which appears in some ethics rules.

As a result of Windsor and OGE's legal advisory, federal employees in same-sex marriages will need to now ensure their compliance with all of the requisite rules for avoiding conflicts of interest and recusals, making any required financial disclosures, and other ethics rules which had previously only applied to heterosexual marriages.

If you are a federal employee and wish to discuss your rights under Windsor or other federal ethics issues, please contact Passman & Kaplan, P.C. to request an initial consultation.

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