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Attorney General Eric Holder announces new post-DOMA changes at DOJ

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Attorney General Eric Holder. Attribution: Wikipedia
Attorney General Eric Holder. Attribution: Wikipedia
Over the weekend, Attorney General Eric Holder announced changes in the Justice Department’s policies regarding gay rights. The Washington Blade broke the news before the announcement:

Holder is scheduled to deliver the remarks at 7 p.m. during his speech at the Human Rights Campaign’s annual gala in New York City held at the Waldorf Astoria.

According to excerpts from his prepared remarks, Holder is set to announce the Justice Department will issue a memorandum on Monday to outline the changes, which will bring the department into compliance with the Supreme Court’s decision against the Defense of Marriage Act.

Holder is prepared to make the announcement in the same speech in which he’s set to reflect on the 50th anniversary of Martin Luther King, Jr.’s “I Have a Dream” speech and passage of the Civil Rights Act of 1964.

The changes are a consequence of the Supreme Court’s decision in United States v. Windsor last June, in which the Court invalidated Section 3 of the federal Defense of Marriage Act (DOMA), which had prevented the federal government from recognizing same-sex marriages. Many of the changes involve rights for incarcerated people and those accused of crimes.

The memo outlining the new policy is expected to be issued today, but in the excerpts, Holder gave at least some details. According to SCOTUSBlog:

** Each spouse in a same-sex marriage will gain the right in civil and criminal cases in court to decline to give testimony against the other spouse — the so-called “marital privilege” that is an exception to compelled testimony. That will apply even in states that would not extend the same right to same-sex couples under state law.

** In bankruptcy cases, same-sex couples will be allowed to file jointly for relief from their debts, some debts owed by one spouse or former spouse to another will not be nullified (“discharged,” in legal terms), and domestic support obligations — such as alimony owed to a former spouse — will have to be paid.

** Inmates in federal prisons who are married to a same-sex spouse will have equal rights and privileges, including visitation rights, inmate furloughs to be with a spouse during “a crisis,” a right of a spouse to be escorted to the funeral of an inmate spouse who dies, protection for letters and other communications between spouses, and early release of an inmate from a sentence or a reduction in sentence to allow the inmate to be with a spouse who has become incapacitated.

** If a benefits program is run by the Justice Department — for example, compensation for a spouse’s exposure to radiation and for the loss of a spouse during the terrorist attacks of September 11, 2001 — same-sex couples will become entitled to those benefits.

** If spouse is or was as a police officer, firefighter, or other public safety officer and is killed or gravely injured in the line of duty, the surviving spouse will receive death benefits if the spouse dies and will receive educational benefits.

SCOTUSBlog notes that none of the changes go beyond what’s allowed after the Windsor decision, and they also suggest that Holder said the new changes “are not the final ones the government will be taking to implement the Windsor ruling.” The new changes can also be implemented administratively, without the need to go to Congress.


  • 1. James  |  February 10, 2014 at 10:20 am

    How dare the attorney general issue a memorandum bringing federal agencies in line with a Supreme Court ruling. The audacity!

  • 2. Rose  |  February 10, 2014 at 10:44 am

    Why is it NECESSARY to refer to the legal marriages of Same-Sex couples as "SAME-SEX MARRIAGES"……it simply doesn't exist!!!

  • 3. StraightDave  |  February 10, 2014 at 10:45 am

    This is an interesting one. Is it based on federal law or the US Constitution? Does this only apply in federal courts…doesn't say, but probably.

    "Each spouse in a same-sex marriage will gain the right in civil and criminal cases in court to decline to give testimony against the other spouse — the so-called “marital privilege” that is an exception to compelled testimony. That will apply even in states that would not extend the same right to same-sex couples under state law."

    Isn't there a murder case going on now in KY or TN, where the state is refusing a lesbian wife (legally married) the spousal immunity? Awful situation!

  • 4. Mike in Baltimore  |  February 10, 2014 at 12:04 pm

    I agree that the situation is awful. BTW, the case is in state court in Louisville, Kentucky – the town Senate Minority Leader Mitch McConnell calls home (even though he was born in Alabama, then moved to Georgia before he 'arrived' in Louisville).

    Because the Federal government is not involved in the court case, though, Kentucky state law applies, and the state of Kentucky currently does not recognize Marriage Equality. Thus there is no spousal privilege in the case in Kentucky.

    Just another reason (of many) why Marriage Equality needs to be observed in all states, districts, territories, Commonwealths, and every other jurisdiction of the United States.

  • 5. JayJonson  |  February 11, 2014 at 8:22 am

    The Attorney General's memo applies only to federal cases. However, if a state case hinges on the question of the marital privilege (as the KY case may), that may offer good rationale for a federal court appeal, much as Ohio's refusal to issue a death certificate that recognized a same-sex marriage led to a federal court challenge.

  • 6. Lawyerly Bard  |  February 11, 2014 at 10:13 am

    Yes, there is a case in Kentucky. The judge asked for the AG's input on how she should handle the situation, and he, because he's the named defendant, along with the governor, in a separate marriage equality case, reiterated that Kentucky doesn't recognize same-sex marriages. The issue here, I think, is that this couple had a domestic partnership in VT. When VT legalized same sex marriage, they retroactively made all domestic partnerships the equivalent of marriages. I would agree with someone else's comment that it seems like the logical next step would be to appeal at the Federal level, especially with this announcement. Of course, if the Federal judge in Louisville rules that Kentucky's constitutional amendment is unconstitutional, well, then, that adds even more credence to an appeal. Plaintiffs in the case have told me they expect the judge to rule this month on the marriage case. The murder case, however, is now moving forward. I haven't heard whether or not the wife has already testified or is continuing to refuse to testify.

  • 7. Zack12  |  February 11, 2014 at 10:19 am

    She plead guilty so yes she has been convicted.

  • 8. Michelle Evans  |  February 10, 2014 at 11:00 am

    Maybe I'm missing something, but I thought that same gender marriages have been recognized as equal to hetero marriages at the federal level since last summer's Windsor ruling. Why are these new guideline even necessary? Marriage is marriage, at least for the Feds. I thought this was settled law already.

  • 9. davep  |  February 10, 2014 at 11:36 am

    I thought so to, but as usual there are some complications (which this new set of decisions are intending to clear up).

    Some Federal statutes relating to marital rights are based on simply whether the marriage was legally enacted (which would include people who live in a non-SSM state and go to another state that has SSM to get legally married and then return to their non-SSM state).

    Others have been based on whether the marriage is currently recognized in the state in which the couple resides, which would mean the example above would not be included for federal recognition – until now.

    The changes Holder is putting forward will simplify things and make them more fair by mandating that the federal government will recognize ALL marriages that were legally enacted, regardless of where the couple lives after that, and regardless if the state they live in currently recognizes the marriage. It helps prevent the otherwise crazy result of federal benefits being turned off, and back on, and back off again every time a couple crosses a state line.

  • 10. Mike in Baltimore  |  February 10, 2014 at 12:53 pm

    This memo helps clarify that the Federal rules administered through DoJ apply everywhere, even in places where ME is not allowed.

    For instance, if someone is legally married to a same gender spouse in Iowa, commits a crime in Missouri, and is convicted in Federal court, they might be sentenced to Leavenworth Federal Prison in Leavenworth, Kansas (less than 75 miles from Iowa, and basically across the river from Missouri). Since Kansas doesn't recognize Marriage Equality, there was a rather large question about whether someone in that prison in Kansas could get any of the spousal rights and privileges accorded to other married convicts at Leavenworth, such as spousal visits (generally allowed much more often than 'other' visits [even parental and sibling visits]; etc.).

    Although not stated in the article, the question was whether the Federal government could recognize ME only in the states that allowed it, or whether the recognition applies to ALL the US, no matter if the local jurisdiction recognizes ME or not. The new policy makes it clear that recognition applies to ALL the US for programs administered through the DoJ.

    Also remember, this policy is for DoJ, and may or may not affect the policies of other departments and agencies in the Federal government. Each department has different laws and different policies affecting how they deal with Marriage Equality. For instance, the Social Security program, administered through HHS, is prohibited by law from recognizing a survivor if the state of residence when the death occurred doesn't recognize Marriage Equality (the survivor of a couple legally married in Massachusetts who then moves to Florida may or may not be recognized for survivor's benefits in Florida, for example).

  • 11. Sean from NJ  |  February 10, 2014 at 11:09 am

    I see this weekend's action as a heavy-handed hint to federal judges that they should continue to rule in favor of marriage equality in upcoming cases in the states. Even our opponents saw Holder's action the same way.

  • 12. Eric  |  February 10, 2014 at 11:19 am

    What is heavy-handed about restating the obvious? This is how the law already works when it comes to marriage.

  • 13. TerrP  |  February 12, 2014 at 6:56 pm

    There can be little doubt that the changes being spelled out in the manner in which they are are being done in order to restate the obvious to eyes oblivious to the changes that have taken place concerning SSM and the Supreme Court ruling in the Windsor case. Sometimes things like this has to be restated in order for dumber straight minds to understand.

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