U.S. Attorney General Eric Holder announced last Saturday that the Justice Department will expand its legal recognition of same-sex marriages to include the same “privileges, protections, and rights” as opposite-sex marriage “to the greatest extent possible under the law.” Framed as an echo of the Civil Rights Movement, the policy is a small but significant step towards equality, since it will dictate the federal government’s legal stance toward wedded same-sex couples even in states where same-sex marriage remains unrecognized. Cases encompassed by the new policy include joint bankruptcy filing, alimony, domestic support, survivor benefits, marital privilege that permits withholding testimony against a spouse, and prison visitation rights formerly guaranteed only to opposite-sex couples nationwide.
The Justice Department’s policy change comes on the heels of two decisions relevant to the ongoing struggle for marriage equality: the Supreme Court ruling of Windsor v. United States, striking down the Defense of Marriage Act last June, and the hold on same-sex marriages in Utah last month. The latter case arose after a federal judge struck down Utah’s gay marriage ban, arguing that it violated the Fourteenth Amendment’s right to equal protection. Utah’s district attorney appealed the ruling to the Supreme Court, however, which issued a temporary ban on the state’s same-sex marriages until judges of the Tenth Circuit Court of Appeals reviewed the case. The result has been a legal vacuum in which the status of Utah’s formerly permitted same-sex unions is unclear. However, the attorney general’s recent expansion of national legal protection helps to preserve state power while affirming equal rights for LGBT citizens under federal law.
Considered in light of both the DOMA and Utah cases, Holder’s announcement throws into sharp relief the paradox that underlies the present state-by-state pursuit of marriage equality. The principal question, whether the U.S. Constitution fundamentally grants same-sex couples the right to marry, has been artfully dodged in successive court rulings and remains unresolved. If answered, it could prove the key to implementing marriage equality nationwide through legal means. Until addressed, however, the Justice Department’s policy represents a necessary legal actualization of cases that favor same-sex unions.
Holder’s directive also reinvigorates the progress of marriage equality, a string of recent victories upset by the Court’s Utah stoppage of same-sex marriages. Legal action, while hardly concerted, has reasserted itself as both the establishing force behind equal rights and the vehicle for realizing the legal implications of that equality. By grounding his directive in laws recently amended or affirmed in favor of marriage equality, Holder has scored a victory for the cause and articulated the goal of a national policy regarding same-sex marriage that derives its legitimacy from the Constitution.
