Following the Supreme Court’s historic decision striking down Section 3 of the Defense of Marriage Act, Attorney General Eric Holder on Friday issued a formal report on the yearlong effort by the Justice Department and other federal agencies to implement the decision smoothly across the entire government.
“I am pleased to report that agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant, to the greatest extent possible under the law," Attorney General Holder wrote in the memorandum to President Obama. “The implementation of the Windsor decision across the entire federal government is an accomplishment that reflects countless hours of hard work, cooperation, and coordination across agencies. As additional issues arise, we will continue to work together to uphold this Administration’s fundamental commitment to equal treatment for all Americans, and to extend this fundamental equality to all Americans.”
At the President’s direction last year, a team of lawyers—led by Assistant Attorney General for the Civil Division Stuart Delery—began working with lawyers for other federal agencies to seek to extend federal benefits to same-sex marries couples, consistent with the Windsor decision. The department and the agencies have made many announcements on a rolling basis over the last several months. To date, for instance, the administration has announced that same-sex marriages will be recognized for all federal tax purposes, that health insurance and retirement benefits are available for same-sex spouses of all federal employees, and that the Defense Department will provide spousal benefits for same-sex spouses of military servicemembers.
In conferring these and other benefits, agencies have chosen to recognize marriages as valid based on the law of the jurisdiction where the marriage took place (the place of celebration), regardless of where the couple currently resides. As noted in the Attorney General’s report, however, two agencies—the Social Security Administration and Department of Veterans Affairs (VA)—are prohibited by federal statute from adopting a “place of celebration” rule for certain programs of critical importance to millions of Americans. The administration looks forward to working with Congress to fix these parts of the law to ensure that Americans who rely on these programs can obtain these essential benefits no matter where they live.
In the meantime, both the VA and Social Security Administration have sought to extend benefits to the absolute maximum extent, seeking out all legally available authority. As a result, for instance, the administration is able to announce today that the VA Acting Secretary has determined that he will exercise his broad statutory discretion in the area of burial benefits to designate any individual in a committed relationship for burial in a national cemetery, which will allow for the inclusion of same-sex spouses where the domicile provision would otherwise govern. In addition, SSA will extend survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner could inherit from the other partner on the same terms as a spouse under state law. This expands the number of states in which these benefits can be extended.
A full copy of the Attorney General’s report to the President is attached.