Holder orders Justice Dept. to recognize same-sex couples: what that means

The Justice policy shift applies to legally married same-sex couples across the federal criminal justice system and in federal civil courts, even in states that do not recognize gay marriage.

The Justice Department issued a policy memorandum Monday instructing all department employees to afford same-sex married couples the same recognition as heterosexual spouses, including in states that do not recognize same-sex marriages.

The policy shift will apply across the federal criminal justice system and in federal civil courts to all areas of Justice Department purview. One clear example of the change is that same-sex married partners can now claim full protection of the marital privilege barring compelled testimony against one’s spouse.

Same-sex married couples will be able to file for bankruptcy jointly, and enjoy full benefits of a spouse for federal prison visits and next-of-kin notification, according to the four-page policy memorandum.

“It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize all marriages valid in the jurisdiction where the marriage was celebrated,” Attorney General Eric Holder wrote in the memo.

He noted that the policy was intended to “ensure equal treatment for all members of society regardless of sexual orientation.”

The policy change was initially announced by Mr. Holder in a speech over the weekend to a major gay rights group in New York.

“This means that, in every courthouse, in every proceeding, and in every place where a member of the Department of Justice stands on behalf of the United States – they will strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law,” Holder told a gathering of the Human Rights Campaign.

“Under this policy, even in states where same-sex marriages are not recognized, the federal government will not use state views as a basis to object to someone in a same-sex marriage invoking this right,” he added.

The action is significant on two levels. It will make an immediate difference to same-sex married couples who otherwise would have been treated differently in federal courts or in terms of federal benefits.

In addition, the policy change seems designed to place the federal government’s thumb on the scale of a monumental legal question that has yet to be decided by the US Supreme Court.

That question is whether five justices on the high court are prepared to recognize a fundamental right under the US Constitution to same-sex marriage, or whether the court will rule that it should be left to each individual state to decide for itself whether to recognize same-sex marriages or not.

Holder’s policy shift makes clear that he believes there is a fundamental right to marry regardless of sexual orientation, and that he believes any role of the states in the debate over marriage should be subservient to the national government’s policy preference.

Currently 17 states, the District of Columbia, and the federal government recognize same-sex marriages. More than 30 states have passed statutes or constitutional amendments defining marriage exclusively as a union between one man and one woman.

Holder’s new policy won praise among gay rights advocates.

“The federal government has taken another step to putting its moral and legal weight on the side of freedom to marry,” Evan Wolfson, president of Freedom to Marry, said in a statement.

“Today’s announcement by the Department of Justice will have an immediate, tangible impact on tens of thousands of married couples and their families all across the country,” he said.

“By increasing the federal programs and protections afforded to married gay couples, including those living in states that still discriminate, the attorney general continues to show his commitment to the constitutional imperative of equal treatment under the law,” Mr. Wolfson said.

“This is very good news for the advancement of equality,” said Rea Carey of the National Gay and Lesbian Task Force Action Fund.

“Lesbian, gay, bisexual, and transgender people and their families experience discrimination in every part and at every step of the judicial process – from law enforcement, to court, to prisons,” she said in a statement.

Supporters of the traditional definition of marriage denounced Holder’s policy shift.

Brian Brown of the National Organization for Marriage said the switch was only the latest effort by the Obama administration to “undermine the authority and sovereignty of the states to make their own determination regulating the institution of marriage.”

“The American public needs to realize how egregious and how dangerous these usurpations are and how far-reaching the implications can be,” Mr. Brown said in a statement.

The changes involve more than just benefits for same-sex married couples. In some cases, a same-sex spouse may now be prosecuted for violating a statute barring a federal employee’s spouse from maintaining a financial conflict of interest.

They will be subject to federal prosecution if their same-sex marriage was entered into to evade US immigration law. And same-sex spouses will be covered by a statute that makes it a federal crime to injure or threaten the spouse of a government official.