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Invoking memory of Robert Kennedy, AG Eric Holder expands rights of gay couples

Attorney General Eric Holder testifies during a Senate Judiciary Committee hearing on Capitol Hill
Attorney General Eric Holder testifies during a Senate Judiciary Committee hearing on Capitol Hill
Photo by Mark Wilson/Getty Images

Attorney General Eric Holder is making changes within the Justice Department to benefit same-sex married couples. The action being taken is being taken after the Supreme Court held last year that key portions of the Defense of Marriage Act were not constitutional. The Justice Department wants to eliminate the distinction between same-sex and opposite-sex married couples in the federal criminal justice system according to the New York Times.

American law has long included a spousal privilege that protects communications between a husband and wife to prevent incrimination against the husband or the wife in court. These expanded rights for gay married couples will include recognizing this legal right for same sex couples as well and to provide the same rights as heterosexual couples when they file for bankruptcy, testify in court or visit family in prison.

The attorney general is also instructing all Justice department employees to give lawful same-sex marriages full recognition as opposite sex married couples in the eyes of the law.

The new policies were announced prior to a speech given to a gay rights activist group, the Human Rights Campaign.

Currently, gay marriage is permitted in 17 states and the District of Columbia.

Supreme Court decisions issued in 2013 required the federal government to recognize same-sex marriages in states that allow them. The decision did not address the status of same sex couples living in a state that does not recognize same sex marriage. Holder compared his actions and the gay-rights movement to the 1960's civil rights movement and, at least by implication, compared himself to Robert Kennedy who was the attorney general for four years with his statement that "The Justice Department's role in confronting discrimination must be as aggressive today as it was in Robert Kennedy's time."

The Obama administration has been active in advancing issues of importance to the American gay community for some time. The Office of Personnel Management (OPM) now extends benefits to legally married same-sex spouses of federal employees and annuitants. Also, John Berry was the director of OPM in the first Obama term and the highest ranking gay person in the administration.

OPM is the central human resources office for the federal government and makes numerous decisions involving benefits for the federal government workforce so it is in a unique position to make changes to federal benefits programs. The Washington Blade, which describes itself as "America's leading gay news source" wrote that “The Obama administration has appointed lesbian attorney Elaine Kaplan as general counsel for the U.S. Office of Personnel Management, where she will serve under the office’s gay director, John Berry.”

Berry became popular with many federal employees for taking stands to expand pay and benefits and, among other things, urging agencies to give employees time to smell the flowers by walking to the tidal basin in Washington, DC "to view the cherry blossoms and start or continue a fit and healthy lifestyle."

OPM took action to expand federal employee benefits to same sex couples under Berry's direction and this same philosophy is very likely to continue under the current director of OPM, Katherine Archuleta. She previously worked as the National Political Director for Obama for America,

While the federal bureaucracy is moving out to expand right of same sex couples, challenges to bans on same-sex marriage are under way in a number of states. The Justice Department and other agencies are not waiting for a final decision by the Supreme Court but are moving out now to expand rights for same sex couples.