On Saturday, February 8, 2014, United States Attorney General Eric Holder announced that in an effort to implement the Supreme Court’s historic decision in United States v. Windsor, the Department of Justice (which includes all of its agencies and programs) would follow a new policy of recognizing “valid same-sex marriages” – same-sex marriages that are entered into or celebrated in a jurisdiction (state, district or foreign country) which authorizes same-sex marriage.
A Little Background on the Department of Justice
The Office of the Attorney General heads the Department of Justice (“DOJ”) and is considered the chief law enforcement officer of the Federal Government (click here for a chart that will give you a better idea of how the DOJ is organized and what agencies and programs will be impacted by this new policy). Under the guidance of the Attorney General, the DOJ enforces federal criminal and civil laws on behalf of the United States.
On Monday, February 10, 2014, Attorney General Holder issued a formal memo outlining the DOJ’s new policy and some of the benefits now available to legally married same-sex couples.
Married is Married: the DOJ Will Follow the “Place of Celebration” Rule
The official memo makes clear that the DOJ will recognize valid same-sex marriages to the full extent possible under federal law, regardless of where a same-sex married couple currently resides.
As long as the marriage was celebrated in a state or foreign country that recognizes same-sex marriages (“place of celebration” rule), the DOJ will also recognize the marriage as valid, even if the couple (or one of the spouses) resides in a state that bans same-sex marriage. In short, it’s the place of celebration, not the place of residence, that matters to the DOJ.
Access to Department Benefits and Compensation Programs
DOJ agencies distributing benefits and compensation which depend on marital status will recognize valid same-sex marriages regardless of where the married spouses reside. Legally married same-sex spouses can now receive benefits and compensation (if otherwise eligible) through a number of programs, including the following:
- the Public Safety Officer’s Benefits Program
- the September 11th Victim Compensation Fund, and
- the Radiation Exposure Compensation Program.
Bureau of Prison Policies Will Apply Equally to Same-Sex Spouses
All of the Bureau of Prisons’ policies that are affected by marital status will be interpreted to include valid same-sex marriages, again regardless of the laws of the state where an inmate is placed or where an inmate’s spouse lives. Same-sex spouses of inmates will now have the same rights as any other spouse, including the right to visitation at federal prisons and next-of-kin notification regarding inmate spouses.
Same-Sex Spouses May Invoke Marital Privileges in Federal Cases
The DOJ also revised how it will handle the invocation of marital privileges in both federal criminal and civil cases. This impacts both the confidential communications privilege (which protects the contents of confidential communications between spouses made during marriage) and the testimonial privilege (which, under certain circumstances, may protect a party or witness-spouse from being called to testify against his or her spouse). Under the new policy, legally married same-sex spouses can assert (or attempt to assert) these privileges in the same way that opposite-married couples do.
The memo provides the following:
- the DOJ will consider a marriage valid for purposes of the marital privilege if an individual attempting to assert the privilege was or is validly married in a jurisdiction that recognizes same-sex marriages, and
- if the DOJ is a party to a civil case where state law governs the use of marital privileges and a same-sex spouse asserts it, as a matter of policy, the DOJ (and its attorneys) won’t challenge the invocation based on the state’s laws regarding same-sex marriage. This policy will apply as long as the same-sex marriage is valid in the place it was entered into, even if the marriage is not considered valid in the state where the married spouses reside or formerly resided.
These benefits do not apply to same-sex couples that are registered in domestic partnerships or civil unions.
This is not a complete list of the benefits available to same-sex spouses under the DOJ’s new policy. You can contact the Chief of State, Civil Division for more information at 202-514-3301.