Attorney General Confirms More Federal Protections for Married Same-Sex Couples

Susan Sommer, National Director of Constitutional Litigation
Attorney General Confirms More Federal Protections for Married Same-Sex Couples
February 11, 2014
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In broad and unequivocal language, U.S. Attorney General Eric Holder emphasized in a memo released Monday that “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.”

We are pleased that the Attorney General has confirmed, just as other federal agencies have done, that the Department of Justice (DOJ) is complying fully with the Supreme Court’s Windsor decision. Recognizing valid marriages of same-sex couples wherever entered accords with the expectations of same-sex couples and protects the rights and dignity of their families, as the Windsor decision demands.

While the DOJ’s announcement did not speak to how other federal agencies are implementing Windsor, it is certainly a welcome confirmation that the DOJ is fully honoring the marriages of same-sex couples wherever entered.

We also appreciate the DOJ’s ongoing work assisting other federal agencies to implement Windsor.  Now, more than seven months after the Supreme Court ruled in Windsor, we hope and expect that federal recognition of the marriages of same-sex couples is just business as usual.

Since the Supreme Court ruling in June striking down Section 3 of the so-called Defense of Marriage Act (DOMA), the federal government has moved forward in recognizing the marriages of same-sex couples in important areas such as federal taxes, immigration and eligibility for housing and social welfare programs. In Monday’s memo to employees of the Department of Justice, Attorney General Holder reaffirmed that the DOJ is “committed to ensuring equal treatment regardless of sexual orientation, and to using every tool and legal authority available to combat discrimination and safeguard the rights of all Americans.”

In particular, the memo confirms that marriages of same-sex couples will be recognized in

  • programs administered by the DOJ, such as the September 11 Victim Compensation Fund and Public Safety Officers’ Benefits Programs;
  • the rules that govern bankruptcy proceedings;
  • federal prisons with respect to such areas as visitation and next-of-kin notifications;
  • rules administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives with respect to licensed firearms or explosives businesses.

In addition, the memo confirms that same-sex spouses will be treated in the same manner as other spouses in criminal proceedings where marital privileges or protections are provided, such as the laws governing confidential communications and testimonial privilege.

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