On February 8th, 2014, Eric Holder made a historic announcement for same-sex couples nationwide. Following the Supreme Court’s landmark ruling on the Defense of Marriage Act, Holder stated that the Department of Justice must strive to ensure that same-sex marriages are equally protected and enjoy the same rights and privileges as heterosexual marriages.
Holder’s ruling is unilateral and will be followed “in every place where a member of the Department of Justice stands on behalf of the United States.” However, because marriage laws are recognized on a state-by-state basis, it will only apply where the U.S. government has jurisdiction. This means that in order to enjoy equal protection under federal law, same-sex marriage must be recognized by the state where the marriage took place.
The State of Same-Sex Marriage in Colorado
Currently, Colorado has a constitutional ban on same-sex marriage. However, in order to enjoy similar rights and liberties as heterosexual married couples, same-sex couples may enter into a civil union.
While they have the same benefits as marriage, civil unions are not recognized as marriages and thus do not have the same status. However, under Holder’s policy, if a same-sex couple were to be married in a state where same-sex marriage is legally recognized, they can enjoy federal privileges, rights, and protections where it is applicable.
What Privileges and Rights Are Protected?
Under the new federal policy, same sex couples can enjoy the same legal protections as heterosexual unions. The dynamic and ground breaking laws protect same sex couples in Domestic Relations cases and currently apply toColorado’s “Civil Union” statutes. These legal protections include:
- The right to refuse to testify against a spouse in civil or criminal cases
- Eligibility to jointly file for bankruptcy
- Eligibility for Department of Justice benefit programs
- Entitled to the same rights and privileges as federal prison inmates in governmentally recognized heterosexual unions
- Significant protections to same sex parents regarding Child Custody, Parenting Time or Visitation, Parental Consent for Medical or Health Issues, Decision Making, etc.
The new directive is extremely important for same-sex spouses of public safety officers, as it ensures that their right to federal death benefits is protected. Legal protections will apply to all legally recognized same-sex marriages in any state in the union and will undoubtedly impact the outcome of many federal cases.
State’s Rights and Same-Sex Marriage
Holder’s decision comes at the boiling point of a shift towards marriage equality nationwide. Currently 17 states legally recognize gay marriage, while 33 states have constitutional bans on gay-marriage.
Holder’s extension of federal benefits to same-sex spouses has a significant impact on same-sex couples who are wrestling with the complexity of family law in the 33 states with a constitutional ban on same-sex marriage, including Colorado. The Civil Union laws in Colorado were passed to enhance the legal protections in all Family Law/Domestic Relations matters, without regard to the sexual preferences of the protected parties. While there are specific benefits that can be reaped from civil unions, there are intricacies to custody, divorce, and even military benefits that can be restricted because of Colorado’s constitutional ban on same-sex marriage.
It is important to know if you are entitled to the newly recognized federal protections and benefits. Gordon N. Shayne is a skillful attorney with over 33 years of experience. Specializing in Colorado family law, Mr. Shayne helps you navigate this new territory and offers effective advice as to how you can protect your rights as a same-sex spouse in Colorado. Contact us today to schedule your free initial consultation.