In a speech at the Human Rights Watch’s Greater New York Gala, Attorney General Eric Holder made a bold declaration, “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.”
This means that for the first time, married same-sex couples have the same protections as all married couples in legal proceedings.
The Obama administration has taken several steps to ensure equal protection for same-sex couples over the last few years. The military’s ‘don’t ask, don’t tell’ policy was reversed and the government refused to defend the Defense of Marriage Act (DOMA), including when the case reached the Supreme Court. It was there that SCOTUS declared DOMA unconstitutional, making legally married same-sex couples eligible for federal benefits. Since then, married same-sex couples can now file joint federal tax returns, have access to military spousal benefits, Medicaid, and Children’s Health Insurance Programs if they quality.
All legally married same-sex couples are eligible for federal benefits even if they reside in a state that doesn’t recognize same-sex marriage.
With the new directive, married same-sex couples gain new protections under federal law. In federal civil and criminal proceedings spouses have the same legal rights, including not being compelled to give testimony against their spouse. The DOJ policy states that the federal government cannot object when someone invokes this right, even if the state does not recognize same-sex marriage. In bankruptcy proceedings, couples can now file jointly and include alimony payments to a former same-sex spouse as a debt. Federal prisoners will now have the same spousal privileges regarding such things as visitation and compassionate release when a spouse is incapacitated.
This isn’t the first time that the DOJ has used its policy power to grant benefits to same-sex couples.
The justice department has already approved policy changes in other agencies. As of last summer, federal employees in same-sex marriages can apply for medical, dental and retirement benefits to include their spouses. Joint placement in retirement homes as allowed by Medicare is also now available. Social Security death benefits will be paid to a surviving spouse and green cards can be issued to foreign national same-sex spouses.
In addition to the legal protections, Holder will make same-sex spouses eligible for benefit funds run by the justice department. This means surviving spouses can now receive death benefits when law enforcement officers are killed in the line of duty, as well as from the September 11th Victims’ Compensation Fund.
As the legalization of same-sex marriage slowly makes its way through the states (Nevada and Virginia are the latest states to no longer defend their states’ marriage bans), the Obama administration is committed to giving protections wherever same-sex couples live. “We are, right now, in the middle of marking a number of 50-year anniversaries of key milestones in the civil rights movement,” Holder said Saturday night. “And yet, as all-important as the fight against racial discrimination was then, and remains today, know this: My commitment to confronting discrimination based on sexual orientation or gender identity runs just as deep.”
The nation marches on, one policy memo at a time.