Draft Congressional Ethics Rules Would Recognize Gay Marriages

Posted April 15, 2010 at 1:00pm

The House ethics committee has drafted rules that for the first time would define gay married couples as “spouses” for the purposes of filling out their annual Congressional financial disclosure forms.

Activists on both sides of the gay marriage issue said the reporting requirements, if adopted, would mark the first time Congress has recognized a gay partner as a spouse. Opponents of gay rights said the draft appears to contradict the 1996 Defense of Marriage Act, which mandates that for any federal regulations, “the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”

The draft ethics committee rules were posted this week on both the ethics committee Web site and the Web site of the Clerk of the House, who manages the financial disclosure forms.

But they were removed from both sites after Roll Call inquired about them.

The ethics committee — formally known as the Committee on Standards of Official Conduct — has released the annual financial disclosure forms that Members of Congress and Congressional staff must complete by May 15. Along with the new forms, which include small changes from prior years, the committee has drafted new instructions for how to complete the forms.

The new instructions include the following paragraph under a new heading, “Same-Sex Marriages”: “In 2009, there were a total of four states which issued marriage licenses to same-sex couples: Massachusetts, Connecticut, Iowa and Vermont. (New Hampshire and the District of Columbia began issuing such licenses effective in 2010). If you and your spouse were issued a marriage license by any of these states and were subsequently legally married in that state, you must disclose all required spousal information on your Financial Disclosure Statement.”

Members of Congress and senior Congressional staff are required by federal law to complete the disclosure forms each year, detailing their stock holdings, investment properties and other sources of earned and unearned income. The forms require the filer to include assets held by their spouse and dependent children and to disclose any source of income (but not the amount) earned by their spouse in the prior year.

The change in instructions would not affect any of the openly gay Members of Congress because none has been legally married in the lawmaker’s home state.

But it is possible that there are gay married couples among the thousands of senior Congressional staff who are required to complete the form each year.

The ethics committee’s draft instruction manual offended both gay rights activists and their opponents.

For gay rights activists, the disclosure requirement is an attempt to saddle gay couples with some of the obligations of marriage without providing the full benefits of marriage, such as the right to file joint federal tax returns.

Brian Moulton, chief legislative counsel for the gay rights advocacy group Human Rights Campaign, said: “This is yet another example of the unequal treatment created by the discriminatory Defense of Marriage Act. Married same-sex couples should be subject to the same obligations, and entitled to the same rights and benefits, as their heterosexual counterparts.”

On the other side, Tom McClusky, vice president of Family Research Council Action, the legislative arm of the FRC, said the Defense of Marriage Act is explicit in prohibiting federal entities from equating gay partners with opposite-sex married couples.

“This is one committee overruling the entire Congress,” McClusky said. “How can the federal government defend any case under the Defense of Marriage Act if they can point to this and say, ‘The U.S. Congress recognizes these marriages.’ How can the federal government not recognize them?”

Leaving gay couples out of the reporting regimen prevents the disclosure of potential conflicts of interest between a Congressional employee’s official duties and the financial interests of his partner. But McClusky said that is no different than the current system for heterosexual Congressional employees who are in long-term, unmarried relationships.

It is not clear whether the ethics committee intends to edit or amend the instructions that have been removed from the Web sites. For now, both the Clerk of the House and the ethics committee Web sites link to prior-year instruction handbooks that do not include the same-sex language or address updates to the 2009 form.