Department of Justice Broadly Recognizes Same-Sex Marriages

In the summer of 2013, the U.S. Supreme Court struck down a central component of the Defense of Marriage Act (DOMA), holding in U.S. v. Windsor  that the federal government must recognize same-sex marriages that have been legally performed in individual states. Until the June 26, 2015 decision of Obergefell v. Hodges, not all states recognized or would perform same-sex marriages; that decision required all states to do so. The Obergefell decision in many ways trumped the policy announcement discussed below.

Almost a year and a half before the Obergefell decision, in February of 2014, U.S. Attorney General Eric Holder announced new Department of Justice (DOJ) policies on same-sex marriage. Holder’s memo stated in part, “It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize all marriages valid in the jurisdiction where the marriage was celebrated.”

Several Areas Affected

Though by its own terms not exhaustive, Holder’s memo:

  • reiterated the DOJ position that juror challenges based on sexual orientation are unconstitutional
  • established that the DOJ would acknowledge same-sex marriages in areas like victim compensation
  • mentioned the Bureau of Prisons’s declaration that its policies implicating married people—such as those regarding prison visitation and next-of-kin notification—will apply to people in legal same-sex marriages, and
  • stated that, from the date of the DOMA decision (June 26, 2013) onward, the DOJ, wherever feasible, has interpreted and will interpret statutory references to marriage to include lawful same-sex marriages.

Marital Privileges

As another part of the new policy, in criminal cases the DOJ would honor assertions of marital privileges involving legal same-sex marriages. (For detailed information about the marital privileges, see Privileged Information at Trial: Spousal Privileges for Same-Sex Couples.)