Ethics group: Defense of Marriage Act renders bribery, nepotism laws unenforceable

Alexis Levinson Political Reporter

The Defense of Marriage Act has traditionally been criticized as discriminatory toward same-sex couples. But a prominent ethics watchdog said Thursday that the law is, in fact, unconstitutional because it unreasonably exempts same-sex couples from complying with various ethics laws.

DOMA is a federal law that officially defines marriage, in the eyes of the federal government, as a legal union between a man and a woman. Massachusetts, the first state to legalize same-sex marriage, sued the Department of Health and Human Services in 2009, saying that DOMA was unconstitutional, and won. The case is currently being appealed and Citizens for Responsibility and Ethics in Washington filed an amicus brief on the side of the Massachusetts Thursday.

The brief claims that ethics statutes are negatively affected because the law requires that the federal government only apply the words “marriage” and “spouse” to married heterosexual couples.

If DOMA’s definition of the words is upheld in court, “public officials, employees, and candidates for public office in same-sex marriages will be subject to differing disclosure requirements than those to which officials, employees, and candidates in opposite-sex marriages are subject, with a resulting decrease in transparency and accountability,” CREW argues.

In its brief, the group says Congress failed to research the consequences of DOMA, calling it “irrational and over-broad legislation, which interferes with and undermines other important federal policies completely unrelated to same-sex marriage.”

Enforcement of the Ethics in Government Act is hindered by the law, the brief says. That law requires the reporting of “income in excess of $1,000, honoraria, and specified gifts to the reporting individual’s ‘spouse.'” Because of DOMA, the law does not apply to married same-sex couples.

“A same-sex spouse of an agency head could receive significant income from an entity regulated directly by the agency with no duty to report such income,” the brief warns, “even though this situation presents a clear potential for a serious conflict of interest.”

CREW also notes that the law enables government officials in same-sex marriages to skirt anti-nepotism laws and “gift bans imposed on senators and their spouses.” DOMA could also be undermining rules that regulate participation on commissions, according to the brief.

The document additionally suggests that DOMA creates loopholes in criminal statutes, such as those covering bribery. Bribery is defined as “acts affecting a personal financial interest of an employee of the federal or District of Columbia government, including those of his or her spouse.” The same-sex spouse of an official wouldn’t be included in that definition, so bribing that person wouldn’t be illegal, CREW notes.

“Same-sex married couples are not inherently more ethical than their opposite-sex counterparts,” the brief argues, suggesting that ethics laws should pertain to all.

CREW also addressed the financial impact of DOMA on the federal government, claiming that the law doesn’t actually save the government money.

“To Congress, the fiscal consequences of DOMA were so irrelevant that it did not even inquire as to what they were,” the brief says. “If that is not the sign of an irrational law, it is hard to know what would be.”

The argument is further undermined, CREW writes, by a report from the Congressional Budget Office which found that enacting and defending the law has actually cost taxpayers a significant amount of money.

“In its zeal to discriminate against same sex couples, Congress passed a blatantly unconstitutional law without stopping to consider DOMA’s impact on other important laws, such as those governing ethics,” said CREW Executive Director Melanie Sloan in a statement.

“DOMA should be struck down for its discriminatory impact alone, but by pointing out its far-reaching, unintended consequences, CREW hopes to demonstrate how irrational it really is,” said Sloan.

Follow Alexis on Twitter