On Monday, February 10, 2014, Attorney General Holder issued a formal memo outlining the Department of Justice's ("DOJ") new policy regarding same-sex marriage and some of the benefits now available to legally married same-sex couples.
Under the DOJ’s new policy, as long as the marriage was entered into or celebrated in a state, district or foreign country that recognizes same-sex marriages (“place of celebration” rule), the DOJ will recognize the marriage as valid, even if the couple (or one of the spouses) resides in a non-recognition state.
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. Same-sex spouses may now receive benefits and compensation (if otherwise eligible) through the following:
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.
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.