November 10, 2011
By Jacob Combs
If you watched Matt Baume’s marriage news watch this week, you might have noticed this story already, but I thought it was worth examining in a little more detail.
The nonprofit watchdog group CREW (Citizens for Responsibility and Ethics in Washington) filed an amicus brief last week in the U.S. Court of Appeals for the First Circuit as part of the Massachusetts v. Human Health Services case challenging DOMA in which the organization argued that the law inadvertently undermines a broad range of ethics and transparency laws by reserving the terms ‘marriage’ and ‘spouse’ for opposite-sex couples only.
Current anti-nepotism laws impose bans on hiring or appointing spouses for government positions, but thanks to DOMA, do not apply to same-sex married couples. As a result, an agency head could hire his or her same-sex spouse despite the obvious conflict of interest. Similarly, financial disclosure obligations imposed by the Ethics in Government Act and other statutes do not apply to same-sex spouses. These consequences highlight the fundamental problems with this irrational and over-broad legislation.
While CREW’s argument may not seem hugely significant on the surface, it can only help us in court down the line. If DOMA is subjected to heightened scrutiny going forward (which it should be), it will clearly not withstand the scrutiny of the Constitution. But even if the DOMA cases are decided on rational basis review, arguments like these further our cause. You can’t argue that DOMA is a rational use of Congress’ power when it inadvertently subverts the very laws we’ve put in place to make our government fairer and more transparent.