Over the weekend, Attorney General Eric Holder announced that the Department of Justice (DOJ) will now recognize any same-sex couple as married for DOJ purposes, regardless of whether their state of residency recognizes their union. DOJ’s guidance officially published Monday mirrors similar announcements made by other federal agencies in the months since the Supreme Court ruling in United States v. Windsor. In these memos, agencies have adopted rules moving beyond the deference to state laws demanded by Windsor and towards a new federal standard that equates same-sex unions with natural marriage.
While scholars continue to criticize the Windsor ruling for its faulty reasoning and conclusions about the motivation for seeking to protect natural marriage in public policy, the legal framework of Windsor does require the federal government to recognize same-sex unions in the 17 states with laws recognizing such relationships. What Windsor does not require is federal action to undermine and upend the policy in the 33 other states that define marriage as the union of one man and one woman.
In fact, the Majority in Windsor reasoned that a key fault with previous federal policy on marriage was that it caused inconsistent legal recognition of marriage in states, with state law and federal law coming to differing conclusions about the status of a same-sex couple. Yet, now DOJ and other rogue agencies are constructing the “contradictory marriage regimes” that “[diminish] the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect” and that were condemned by the Court.
The current federal posture allows some couples to live as married for many federal purposes while state law continues to view them as unmarried for state purposes. The DOJ’s announcement yesterday continues this confusion and perpetuates the very reality Windsor condemned.
The ultimate irony of this weekend’s announcement came not just from the substance, but also the timing. While the Administration trumpeted the need for respect, tolerance, and deference to diversity in the context of Russian laws governing marriage, the Administration decided respect, tolerance, and deference to differing opinions on marriage was not actually important back home. Rather than honoring the legal boundaries now at work in the post-Windsor world, the Department of Justice has decided that shutting down democratic debate over marriage matters more than fidelity to the rule of law.