U.S. Attorney General Eric Holder, Jr.
U.S. Attorney General Eric Holder, Jr. (Photo: Diego M. Radzinschi / NLJ)

Attorney General Eric Holder Jr. tonight is expected to announce the expansion of the recognition of same-sex marriages, applying privileges in civil, criminal and bankruptcy cases, certain benefits programs and among federal prisoners.

The U.S. Department of Justice on Monday will issue a policy directive that instructs DOJ employees to recognize same-sex marriages as widely as possible under federal law. Holder will announce the new policy tonight at a Human Rights Campaign event in New York City, according to an advance copy of his remarks.

“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,” according to excerpts from the attorney general’s speech.

The policy change would extend the marital privilege to same-sex couples in federal litigation—across the country, even in states that don’t recognize same-sex marriages. The shift would provide greater protection from being forced to give testimony that might violate the marital privilege, according to Holder’s remarks.

Same-sex married couples, according to excerpts of the speech, should be allowed to file for bankruptcy jointly. The policy directive calls on the U.S. Trustee Program, a Justice Department component that oversees the administration of bankruptcy cases, to consider same-sex marriages as equal to opposite sex marriages.

“Just like during the civil rights movement of the 1960s, the stakes involved in this generation’s struggle for LGBT equality could not be higher,” according to Holder’s prepared remarks. “Then, as now, nothing less than our country’s commitment to the notion of equal protection under the law was on the line.”

The Justice Department intends to recognize same-sex marriages in the administration of certain benefits programs, including the September 11th Victim Compensation Fund, the Radiation Exposure Compensation Program and the Public Safety Officers’ Benefits Program.

“When any law enforcement officer falls in the line of duty or is gravely injured, the federal government should stand by that hero’s spouse—no matter whether that spouse is straight or gay,” according to the attorney general’s remarks.

In January, Holder, citing the U.S. Supreme Court’s decision last year in United States v. Windsor, said the Obama administration will recognize hundreds of same-sex marriages that were performed after a judge struck down the state ban against gay and lesbian unions.

In remarks then, Holder said the Windsor decision, which invalidated a part of the federal Defense of Marriage Act, “marked a historic step toward equality for all American families.” The department, Holder said, has worked “tirelessly” to implement the ruling.

“As Attorney General,” Holder will say tonight in New York, “I will not let this Department be simply a bystander during this important moment in history.”

Contact Mike Scarcella at mscarcella@alm.com.