With the pen and the phone, eh? It’s a brave new world, folks.
The Justice Department on Monday will extend a new package of federal benefits to same-sex couples that Attorney General Eric Holder said will give “lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law.”
In remarks prepared for a speech Saturday night to the Human Rights Campaign in New York, Holder said the new benefits will apply to gay couples who are legally married, even to those who live in states that do not recognize same-sex marriage.
The moves are the latest in a series of actions following the US Supreme Court’s ruling in June that struck down a key part of the Defense of Marriage Act, which had barred the federal government from recognizing legally valid same-sex marriages.
Of course, what they can do from the Justice Department is fairly limited. None of these new guidelines will apply at the state level (yet) and primarily affect rules designed to benefit married couples in their dealings with the federal justice system. These include:
– Federal death benefits and educational payments given to surviving spouses of injured or deceased public safety officers
– Visitation rights and eligibility for compassionate release or sentence reductions for inmates in federal prisons
– The application of eligibility rules for married couples in federal bankruptcy proceedings
Apparently Holder is giving a policy speech this weekend which will highlight this theme and he wants you to know that he really, really means it.
Holder, who has made civil rights a priority for the Justice Department, said that as important as the right against racial discrimination has been, “my commitment to confronting discrimination based on sexual orientation runs just as deep.”
I imagine this is an early shot across the bow from the President to demonstrate that he meant it when he said he would act without Congress where he can. It’s not difficult to imagine that other departments will be lining up with similar rulings wherever the word “marriage” intersects with their particular bailiwick. And it’s true that Obama can make an end run around Congress on these items since they fall pretty much elusively in the Executive branch powers.
But there are two things to remember about this. First, the number of people affected is actually fairly small, as such orders can’t touch proceedings at the state level and not that many couples wind up in the federal system for these purposes as compared to local and state proceedings. That’s pretty much baked into the cake as per the Constitution. And second, such orders which are enacted with a stroke of the Executive pen have a shelf life precisely as long as the amount of time the author keeps hold of said pen. The next President can keep the rules, modify them, or discard them as they wish.
All in all, this is much like raising the minimum wage by executive fiat, but only having it apply to federal workers. It’s largely symbolic, buys some good headlines over a few days of the news cycle (for an administration that really needs some good news) and only directly affects those already caught in the web of the federal system.