Eric H. Holder, Jr., the 82nd Attorney General of the United States, took a stand this month and declared that the Justice Department will taking additional steps to further advance our “fundamental truth” – and give real meaning to the U.S. v. Windsor decision. He issued a new policy memorandum that 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. Now, 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 – these members will strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law. This policy has important, real-world implications for same- sex married couples that interact with the criminal justice system. For instance, as a result of this policy:
• The 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 invoking this right.
• In bankruptcy cases, the United States Trustee Program will take the position that same-sex married couples should be treated in the same manner as opposite-sex married couples. This means that, among other things, same-sex married couples should be eligible to file for bankruptcy jointly, that certain debts to same-sex spouses or former spouses should be excepted from discharge, and that domestic support obligations should include debts, such as alimony, owed to a former same-sex spouse.
• Federal inmates in same-sex marriages will also be entitled to the same rights and privileges as inmates in opposite-sex marriages. This includes visitation by a spouse, inmate furloughs to be present 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 the incapacitation of an inmate’s spouse.