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Justice Department includes same-sex couples in host of legal protections

  • McClatchy Washington Bureau
  • Published Monday, Feb. 10, 2014, at 4:33 p.m.
  • Updated Monday, Feb. 10, 2014, at 4:44 p.m.

— Same-sex married couples nationwide now will receive many more of the same legal protections and benefits enjoyed by other couples, under new Justice Department policies formally unveiled Monday.

From prison visitations to joint bankruptcy filings and beyond, the new Justice Department policies extend a host of federal benefits to same-sex couples even in those states that prohibit such marriages.

“It is the department’s policy to recognize lawful same-sex marriages as broadly as possible, to ensure equal treatment for all members of society regardless of sexual orientation,” Attorney General Eric Holder wrote.

The four-page policy memorandum made public Monday fleshed out an earlier announcement Holder offered Saturday at a Human Rights Campaign gala event in New York City. The policies mark the latest Obama administration move on the issue since the Supreme Court last June struck down a part of the Defense of Marriage Act that prohibited same-sex couples from receiving federal benefits.

Previously, the administration had announced same-sex couples could obtain veterans benefits and file joint tax returns, among other measures. With the new policy guidance, Justice Department officials made clear that they will interpret “spouse” and “marriage” in myriad federal laws to apply equally to same-sex couples. The policy memo essentially enumerates many of the specific consequences that flow from the Supreme Court’s 5-4 ruling.

Same-sex couples, for instance, will be covered by the legal privilege against testifying against a spouse. Inmates will be allowed same-sex spousal visits and potentially could secure compassionate release to care for a sick spouse. Death benefits and educational benefits will be available to same-sex spouses of slain public safety officers, and compensation for radiation exposure and other conditions may be paid to same-sex spouses.

“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,” Holder told the Human Rights Campaign audience.

In some cases, moreover, the equal treatment could facilitate prosecutions. The Justice Department, for instance, noted Monday that the federal statute making it a felony to enter into marriage for purposes of evading immigration law can now be applied to sham same-sex marriages as well.

In a similar vein, the Justice Department said the law against threatening a “family member” of a federal official will now apply to same-sex spouses.

“This is just the latest in a series of moves by the Obama administration, and in particular the Department of Justice, to undermine the authority and sovereignty of the states to make their own determinations regulating the institution of marriage,” Brian Brown, president of the National Organization for Marriage, said in a statement.

Thirty-three states currently ban same-sex marriage, either through statute or through a provision in the state’s constitution. The question of whether such provisions violate the U.S. Constitution’s equal-protection guarantee has not yet reached the Supreme Court, but eventually it will.

In April, the 10th U.S. Circuit Court of Appeals in Denver will consider a challenge to Utah’s ban on same-sex marriage; a week later, the appellate court will consider a separate challenge to Oklahoma’s prohibition. Challenges have been levied against other states, including one in Virginia heard by a trial judge last week. The Virginia case stood out because the state’s newly elected Democratic attorney general opted to stop defending the state’s constitutional ban.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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