WASHINGTON - The Justice Department was ordered Monday to start treating legal same-sex marriages the same as any other marriage, regardless of whether the couple lives in a state - like Arizona - that does not recognize such unions.
In a directive Monday to all Justice Department employees, Attorney General Eric Holder said the agency would recognize same-sex marriages "as broadly as possible" in federal courts and in programs overseen by Justice.
It followed Holder's speech Saturday to a Human Rights Campaign event in which he said the directive would "give real meaning" to the Supreme Court ruling last summer, U.S. v. Windsor, that struck down the federal Defense of Marriage Act defining marriage as one man, one woman.
Holder's order would only apply in federal courts and programs to couples married in states that allow same-sex marriages. State laws denying spousal rights to same-sex couples would still apply in state courts and state programs.
But critics still called Holder's directive an abuse of federal power.
"The federal government continues to overstate its authority," said Cathi Herrod, president of the Center for Arizona Policy. "The court still affirmed in the Windsor decision the rights that states have and it looks like the justice department is abusing its power."
But one former federal prosecutor said Holder "is entirely within his rights to make that change."
"He's not telling the states what to do. He is simply telling the federal agencies what to do within the state's borders," said Paul Charlton, an attorney in private practice who served as U.S. Attorney for Arizona from 2001 to 2007.
Barbara Atwood, a University of Arizona professor emerita of law, agreed that federal authority would end at the state level in certain situations. Same-sex partners of inmates in Arizona prisons would not be able to claim spousal visiting rights, for example, as they would if their spouse was being held in a federal prison.
"The ban still governs in some cases," said Atwood of the state's prohibition on same-sex marriages. She pointed out, for example, that same-sex couples married in a state that recognizes such marriages could not get a divorce in Arizona - they would have to go back to a state that recognizes same-sex marriages.
Arizona bans same-sex marriages both in state law and in the state constitution.
"Arizona still has a ways to go," said Human Rights Campaign spokesman Fred Sainz. "There are still some veterans benefits and Social Security benefits that are not available to same-sex couples in that state."
Sainz points out that even though Social Security is a federal program, the benefits are "still contingent on where you live." That means living in a state that prohibits same-sex marriage is an issue for gay couples seeking Social Security benefits.
"Since Arizona does not allow same-sex marriage on the state level, even if you were married in a state that does, those benefits would be handled differently in Arizona," Sainz said.
Paul Bender, an Arizona State University law professor, said Holder's directive will only apply on federal issues for same-sex couples that have been unequivocally married in a state that allows such unions.
"You can't go claiming that you lived in Massachusetts 20 years ago and want benefits in Arizona now," Bender said. "You have to be officially and legally married there first- with paperwork and everything - before expecting anything here."
Calls seeking comment on Holder's directive Monday from the U.S. Attorney's Office for Arizona and from Arizona Attorney General Tom Horne were not immediately returned.Attorney General Eric Holder said the Justice Department should treat same-sex couples who are legally married in a state the recognizes such unions like any other married couple. In a directive to employees, he said that applies, among other things, to:
- Federal matters of alimony.
- Spouses' access to the Public Safety Officers' Benefits Program, 9/11 relief funds and other funds.
- Federal criminal or civil cases, in which same-sex spouses will be allowed to invoke marital privilege on confidential communication and testifying against each other.
- Spouses seeking visiting privileges with federal prison inmates.
- Next-of-kin notifications regarding federal prison inmates.
- Spousal rights to carry on a deceased spouse's licensed firearms or explosives business.
- People who marry to avoid immigration laws.
- Threats against spouses of federal officials.
- Conflicts of interest for federal employees that include the employee's spouse.