Five Things You Should Know About the Department of Justice’s New Stance On Same-Sex Marriages

It’s been a busy weekend for gay rights around the world. With so much well-deserved attention on the good, the bad, and the ugly of the Sochi Olympics (more on this later in the week), you may have missed the landmark news this weekend on the home front.

On Saturday, Attorney General Eric Holder announced at the Human Rights Campaign’s New York City Gala that the Department of Justice (DOJ) will “strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law.” In other words, legally married same-sex couples will now receive the same rights and benefits given to opposite-sex couples in any proceeding or program that the DOJ participates in or oversees. 

Here are five things you should know about how this stance changes the legal landscape for married same-sex couples:

  1. Right to Assert Marital Privilege: Same-Sex spouses can now exercise their marital privilege and decline to give testimony in a civil or criminal case against their spouse. The privilege itself stems from a policy to encourage spousal harmony and to protect confidential communications in a marriage. And while most couples share intimate details, now gay and lesbian couples can take solace that those communications can stay private.
  2. Filing Joint Bankruptcy: Many people assumed this protection once Section 3 of DOMA was struck down, since the Bankruptcy Code itself never defines the word “spouse.” (Back in my days as a bankruptcy attorney, I always thought this issue was ripe for litigation.).  Now the DOJ has made clear that same-sex married couples can file joint cases. This change greatly helps those couples that have joint debts, in which they are jointly and severally liable (i.e., the creditor can go after either person for the entire debt). It also prevents debt obligation of former-spouses, like child support and alimony, from being discharged in a bankruptcy.
  3. Allowance of Spousal Rights for Inmates: Married gay and lesbian inmates are now allowed spousal visitation, inmate furloughs for a crisis involving a spouse, escorted trips to attend a spouse’s funeral, correspondence with a spouse, and compassionate release or reduction in sentence if an inmate’s spouse is incapacitated. A great expansion for those couples that already had limited rights.
  4. Equal Treatment for Programs Administered by the DOJ: Same-sex spouses can now receive compensation from programs like the Radiation Exposure Compensation Program, the September 11th Victim Compensation Fund, and the Public Safety Officers’ Benefits Program. This stance provides a much needed benefit to spouses of law enforcement officers and firefighters that may be injured or die in the line of duty.
  5. Civil Rights Issue of Our Time: Holder expressly recognized marriage equality as the civil rights movement of our time, and that “important, life-changing work remains before us.” Just like the struggle for African Americans in the 1960s, this moment in history will help shape the lives of same-sex couples and families for decades to come. Our ability to witness and influence great change isn’t lost on me. And I hope it isn’t on you.

One last thing to keep in mind is that these new rights only apply to legally married couples. Therefore, you still have to marry in a jurisdiction that recognizes same-sex marriages, even though you don’t have to live there.

These types of declarations play an extremely important role in the ever-changing landscape of federal agencies recognizing same-sex legal rights. For more on how different federal agencies view your rights, see my previous Guide to Government Agencies and Your Federal Rights.  You can also see Holder’s full speech here or read it here.