Same-sex marriage: New protections show how Obama’s position 'evolved'

Attorney General Eric Holder has announced sweeping protections under federal law for married same-sex couples. It's just the latest in a string of legal and political gains for gay couples.

Keith Bedford/Reuters
US Attorney General Eric Holder speaks to the Human Rights Campaign's annual event in New York Saturday evening. Mr. Holder plans widespread changes within the Justice Department to benefit same-sex married couples.

It wasn’t long ago that President Obama said his thinking about same-sex marriage was “evolving.”

As a US Senate candidate in 2004, he had said, “What I believe is that marriage is between a man and a woman.”

Six years later – two years after he’d been elected president – Mr. Obama told a group of liberal bloggers, “I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.”

“But I also think that attitudes evolve, including mine,” he added then. “And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships.”

Since then, gay marriage has accelerated as a social and political issue in America.

• Seventeen states and the District of Columbia now recognize such marriages for legal purposes, and as many as five more states could do the same this year.

• The US military has abandoned its “don’t ask, don’t tell” policy, which had prevented openly gay men and women from serving in uniform.

• The US Supreme Court knocked down the federal Defense of Marriage Act and effectively did the same to California’s Proposition 8 ban on same-sex marriage. (The scene had been set for those rulings 10 years earlier with the high court’s landmark ruling striking down an anti-sodomy law in Texas, which affirmed the right of gay couples to have consensual sex.)

• In the wake of those Supreme Court decisions, the Pentagon announced that military couples in same-sex marriages would receive the same benefits and privileges as all married couples, and the Internal Revenue Service announced that gay couples married under state law could now file joint tax returns no matter where they lived.

Urged along by younger Americans – 70 percent of whom support legal same-sex marriage, according to Gallup – a string of recent polls now show a majority of the overall adult population does as well. Many of them, it seems, have that “host of friends who are in gay partnerships” that Obama referred to – or at least acquaintances and work colleagues living together as committed same-sex couples.

At this point in his second term, and with his legacy already being formed, Obama says he will use his executive authority to make things happen.

On gay marriage, that means giving lawful same-sex marriages full and equal recognition in all 50 states – not just those states where such marriages may be legally performed – to the greatest extent possible under federal law.

"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," US Attorney General Eric Holder announced Saturday night in a speech to the Human Rights Campaign, an advocacy group that works for lesbian, gay, bisexual, and transgender equal rights.

Among other things, Mr. Holder told his audience:

• The Justice Department will recognize that same-sex spouses of individuals involved in civil and criminal cases should have the same legal rights as all other married couples, including the right to decline to give testimony that might violate the marital privilege. Under this policy, even in states where same-sex marriages are not recognized, the federal government will not use state views as a basis to object to someone in a same-sex marriage from invoking this right.

• The US Trustee Program will take the position that same-sex married couples should be eligible to file for bankruptcy jointly and that domestic support obligations should include debts such as alimony owed to a former same-sex spouse.

• Federal prisoners in same-sex marriages will be entitled to visitation by a spouse, inmate furloughs during a crisis involving a spouse, escorted trips to attend a spouse's funeral, correspondence with a spouse and compassionate release or reduction in sentence based on an inmate's spouse being incapacitated.

• The Justice Department will also provide death and educational benefits, through the Public Safety Officers’ Benefits Program, to same-sex spouses of law enforcement officers and firefighters who suffer catastrophic or fatal injuries in the line of duty.

“The federal government should stand by that hero’s spouse, no matter whether that spouse is gay or straight,” Holder said.

On Monday, the Justice Department will issue a memo to its employees detailing the new policy.

Holder's speech was criticized by the conservative National Organization for Marriage.

"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," said Brian Brown, the group's president. "The changes being proposed here to a process as universally relevant as the criminal justice system serve as a potent reminder of why it is simply a lie to say that redefining marriage doesn't affect everyone in society."

But supporters of gay marriage see this action by Obama as akin to major civil rights breakthroughs on race a generation ago. Holder is being likened to Robert Kennedy, the US attorney general during that earlier civil rights era.

"This landmark announcement will change the lives of countless committed gay and lesbian couples for the better,” Human Rights Campaign president Chad Griffin said in a statement. “While the immediate effect of these policy decisions is that all married gay couples will be treated equally under the law, the long-term effects are more profound.”

This report includes material from The Associated Press.

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