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Mixed assessments: How ‘big’ is Holder’s news on same-sex marriage benefits?

Monday, February 10, 2014
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U.S. Attorney General Eric Holder told a Human Rights Campaign audience in New York Saturday that, beginning Monday, he “will – for the first time in history – formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law.”

Eric Holder

Eric Holder

But there have been some mixed assessments of how big this news really is.

Holder said his new policy is a response to the U.S. Supreme Court’s ruling last June in U.S. v. Windsor. Many of the federal government’s agencies have issued new regulations in response to that ruling, striking down the key provision of the Defense of Marriage Act (DOMA).

Holder said the new policy would have “important, real-world implications for same-sex married couples that interact with the criminal justice system.”

Specifically, he noted same-sex spouses would now have the same rights as spouses in heterosexual marriages not to testify against their spouse in a civil or criminal trial. Same-sex couples will be able to file bankruptcy jointly. Federal prisoners with same-sex spouses will be eligible for visits from their spouses, escorted trips to attend their spouse’s funeral. And public safety officers with same-sex spouses will receive the same benefits as their heterosexually married peers.

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The mainstream media reportedly the news widely. HRC President Chad Griffin called it a “landmark announcement” that “will change the lives of countless committed gay and lesbian couples for the better” and has “more profound” effects in the long-term.
Jon Davidson, legal director for Lambda Legal, says the announcement is “quite significant.”

“It instructs all government attorneys to respect all marriages of same-sex couples, regardless of the laws of their state of residence to argue for recognition of their marriages for all purposes,” says Davidson.

But Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, says the “substance” of the announcement was less impressive. Many of the benefits touted as part of the new policy were already in place “and the other items are good but certainly not far-reaching.”

While there is important “symbolism” in the announcement, said Buseck, “bankruptcy was a done deal several years ago; and the other items are good but certainly not far-reaching.”

In June 2011, the largest federal bankruptcy court in the United States ruled in re Balas that DOMA violates the equal protection guarantee of the U.S. Constitution. In a strongly worded decision, the 20 judges participating in the decision ruled unanimously “there is no valid governmental basis for DOMA.” By then, Holder had already advised the courts that the DOJ would not defend DOMA, and House Speaker John Boehner decided not to appeal the decision.

“It seems like Holder is spinning it as his agency – DOJ – coming on board with respect for our married couples and adopting a place of celebration rule,” said Buseck. “I didn’t immediately see it as a big deal that DOJ was somehow officially coming on board with the general trend post-Windsor. But perhaps I am not giving them enough credit.”

In his other remarks Saturday night, Holder told the Human Rights Campaign fundraiser audience in New York City, that he thinks the struggle for LGBT civil rights has reached “a new frontier in the fight for civil rights.”

“This is no time to rest on our laurels,” said Holder. “This is no time to back down, to give up, or to give in to the unjust and unequal status quo. Neither tradition nor fear of change can absolve us of the obligation we share to combat discrimination in all its forms. And, despite everything that’s been achieved, each of us has much more work to do.”

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