GLAD DOMA Win in MA — First Step in a Continuing Battle
UPDATE: The below blog post has been supplemented by a full FAQ, please see “What the DOMA Win Means for LGBT Binational Families”.
Yesterday a Massachusetts federal district court judge sided with the Gay and Lesbian Advocates and Defenders and with the state of Massachusetts and found that it is unconstitutional for the U.S. federal government to refuse to recognize same sex marriages that are validly entered into in the couple’s state. This is a huge victory and we should all take a moment to celebrate! But, this battle is far from over.
Because this is an important case politically and constitutionally, it will certainly be appealed. The next step will be an appeal to the First Circuit Court of Appeals, and from there the case will inevitably to to the U.S. Supreme Court. The ruling by the district court judge will be “stayed” during these appeals, meaning that until the Supreme Court eventually makes a decision, DOMA will remain in effect, even in Massachusetts.
Why would the Obama administration appeal this ruling?
Regardless of the personal beliefs of the president (which are not clear here anyway), the president and attorney general are usually obligated to defend legislation that has been duly enacted by Congress.
What happens to binational couples if the Supreme Court finds DOMA unconstitutional?
If, eventually, the Supreme Court upholds the ruling that DOMA is unconstitutional, same sex couples that are validly married, would be able to receive federal benefits, including immigration, based on their marriage. Basically, this would mean that binational couples who live in the handful of states that allow same sex marriage could get immigration benefits, and couples who live in states with mini-DOMAs could not. Where do we go from here?
We must continue to pursue rights for binational couples on all fronts. It will probably take several years for this DOMA challenge to reach the Supreme Court, and no one can predict what the outcome will be. Certainly a victory in the Supreme Court striking down the federal recognition section of DOMA would be a huge victory for binational couples (at least giving them the option to move to LGBT friendly states to pursue immigration benefits.) Meanwhile, we must continue to push for passage of an LGBT inclusive CIR and for passage of the UAFA.
Thanks for this post, IE.
Can you please clarify something though. If DOMA section 3 is found to be unconstitutional by the SCOTUS then, legally, what exactly restricts legally married ss binationals from living in any state they choose? You have stated mini-DOMAs, but how can federal rights be determined by the state where you reside? I understand state marriage rights being limited, but not federal rights.
And, I agree. Keep pushing the UAFA and Inclusive CIR.
Comment by nola — July 9, 2010 @ 9:49 am
Excellent question. As I understand it, the GLAD challenge is only to the section of DOMA that states that no federal benefits will be issued to couples in same sex marriages. So if the ruling holds up, the federal government will be required to recognize same sex marriages that are validly entered into in states that allow for them. But since marriage is generally governed by state law, there would not be a requirement for states to recognize same sex marriages. (Though such a ruling could lead to further law suits seeking to invalidate state mini-DOMAs on constitutional grounds.
An (imperfect) analogy would be this, some states (like Florida) allow first cousins to marry one another while others (like Delaware) do not. If first cousins marry in Florida, they can get federal benefits, including immigration rights, social security benefits etc., based on the marriage. However, if that same couple tried to marry in Delaware, the marriage would not be valid so the couple would not be entitled to any federal benefits.
It is definitely confusing to sort out the federal rights versus states rights issues in these cases, especially since marriages take place at the state level, but the benefits we’re fighting for are completely federal.
Comment by Victoria Neilson — July 9, 2010 @ 10:44 am
I’m not quite sure where to post this – but, question if anyone might know – DOMA “lost” in Federal Court District 1 representing the state of Massachusetts – I listened to the news this evening and State Attorney, Martha Coaxley actually state “now for citizens of Massachusetts” they are immediately entitled to all 1100 Federal Benefits afforded married couples. My question, I’m born, bred in Boston, MA, however, live now in WA – my husband (Mexican Citizen) and I married in Massachusetts several years ago – if I claim citizenship in MA again, does this mean, my husband could become a citizen of the USA – please tell me it is so – if so, doesnt this open the door for all of us same sex binational couples – get married in Massachusetts and become a citizen of that state!! Am I being a bit over zealous?
Comment by Thom — July 8, 2010 @ 11:17 pm
Comment by Thom — July 9, 2010 @ 10:48 am
Folks, if you have specific questions about your own immigration situation, please send them to us through our contact us page.
As I explained above, it is pretty much automatic that the government will appeal and it is also pretty much automatic that the government gets a “stay” of the ruling during the appeal, meaning that the ruling does not go into effect while the appeal is pending.
Comment by Victoria Neilson — July 9, 2010 @ 11:11 am
Comment by jerry — July 9, 2010 @ 2:24 pm
Thanks Victoria for trying to clarify. I’m still a little confused, but I guess that’s fault.
When dealing with these type of DOMA questions I often hear ‘in theory’ or ‘we just don’t know’. I think that a legally married binational couple should test the system and see what happens. As well, I think that IE should begin preparing ‘federal immigration rights’ lawsuits for legally married same sex binational couples.
Just an idea.
Comment by nola — July 9, 2010 @ 2:28 pm
It sounds great to sue, but the problem is that for a lot of us, our partners are attempting to gain permanent residence through other channels.
If we get married, then that calls into question the validity our partner’s green card application. So we can’t get married without running the risk of essentially disqualifying them from other avenues of obtaining permanent residency.
Maybe there are couples who are out of other options that could test the system? I hate to ride on other’s coattails, but at the same time I don’t want to run even the slightest risk of losing an option for my partner to stay here.
Comment by GW — July 9, 2010 @ 4:59 pm
This notion of ‘non-SSM state vs. SSM state’ argument for Federal rights/benefits seems suspect to me.
It makes NO sense for the Fed gov’t to deny an American in ANY state to sponsor their noncitizen partner, as we are free to get married in any state and live/move elsewhere. Logically, I just cannot see how that could impede immigration proceedings. They will not revoke your greencard if you move from a SSM to a non-SSM state … Right?
Now, do the benefits supplied VIA non-SSM states follow you (as they would be provided in eg MA)? Then I could see how that might be an issue as long as DOMA Sec. 2 stands, but for national issues not dealt with via an individual state? No. If it’s a Fed matter, administered by the Fed gov’t (as immigration is), it shouldn’t matter in which state you reside; you can get married in one of the other 5 or DC.
Please clarify. Thank you.
Comment by Kalbo — July 9, 2010 @ 5:22 pm
Isn’t it true that technically if the Obama administration didn’t appeal it would be agreeing that Section 3 of DOMA is unconstitutional (2 Branches) and thus open the way to every Federal Government Agency to treat all married couples from equally as long as the state in which the marriage takes place it is legally allowed?
Comment by Jared — July 9, 2010 @ 5:53 pm
@Thom – As Victoria pointed out, the court decision will be “stayed” in the appealing process. It means that even if you move back to MA and live there with your husband, you still won’t be able to claim any immigration rights for him UNTIL the case reaches the Supreme Court and they find DOMA is unconstitutional. From what I understand, it could still take years for the case to reach the Supreme Court. I think we have a better chance of getting the UAFA pass first so that gay and lesbian US citizens and permanent residents can sponsor their foreign born same sex partners to live together in the US even though the rest of the 1100 some federal benefits are not awarded to same-sex married couples.
Comment by Simon M — July 9, 2010 @ 8:17 pm
And don’t forget, the more education and public awareness and support we generate about LGBT immigration (and other issues), the more likely it is that a court will rule in our favor.
We can’t assume that any court will completely ignore public opinion on an issue.
Comment by Matt N — July 9, 2010 @ 8:59 pm
I’m confused. Since immigration is a federal right, not a state right, wouldn’t one be able to marry in a state that allows Same-sex marriage, even if you lived in somewhere like Georgia. Even though Georgia would’n t recognize the marriage, the federal government would still be entitled to recognize and supply the benefits that come with marriage. You wouldn’t have to be living in a state that permits ssm’s as long as you were married, it doesn’t matter where you live. Please clarify this.
Comment by Luke — July 9, 2010 @ 11:25 pm
No longer “IF”…but “WHEN”. Justice has been delayed and continues to be delayed, thus denied. Unfortunately, we have only 1 life and a life without my partner is no life. 10 years for these arguments to course through the supreme court is far worse than 1-2 years for UAFA and/or CIR.
Comment by Joe — July 10, 2010 @ 10:30 am
Regarding comment 12 — while immigration is a federal benefit, marriages are entered into under state law (as are other aspects of family law). So, for example, if nothing changed with the MA ruling (and, as discussed above, it is almost certain that the ruling is not the last word), then, yes, a couple married in MA could get immigration benefits.
For most types marriages, the “full faith and credit” clause of the constitution guarantees that a marriage entered into in one state will be recognized in other states. However, there is a section of DOMA, which was not challenged in the MA suit, that says that states are not compelled to recognize same sex marriages entered into in other states. So a MA same sex marriage would not be recognized by the state of GA, barring further litigation.
It is not entirely clear whether a marriage entered into in MA by a same sex couple who actually lived in GA would be valid for immigration purposes. The general rule for marriages is that if it’s valid in the state where entered to it’s valid for immigration purposes, unless the marriage violates public policy. It’s not entirely clear what the federal government would do with a valid MA marriage that clearly violated GA policy. But, these questions remain very hypothetical at this point.
Comment by Victoria Neilson — July 12, 2010 @ 12:19 pm
Please create a separate blog about this specific issue. I, for a fact wouln’t mind to live in a SSM-state forever with my argentine-born boyfriend. It my sound conformist, but if it allows us to live in the US, we would go for it.
Comment by Mykle — July 15, 2010 @ 11:27 am
I for one would be thrilled to have this be upheld even as-is: MA would be a fantastic place to live and whatever hardships (financial and otherwise) it’d mean, it would be a priceless gift to finally be able to sponsor my partner for citizenship after ten long years. I guess I’m willing to compromise so that at least we could be together while continuing to fight for marriage equality across the nation. I hate how long this all takes… but a victory is a victory.
Comment by Kai — July 15, 2010 @ 11:55 am
(It’d sure be easier than the backup plan: me picking it all up and moving to the UK to be with her, where my particular work qualifications and certifications are literally worthless, and where I’d have to start from completely bottom-up, leaving us both very financially vulnerable.)
Comment by Kai — July 15, 2010 @ 11:57 am
http://www.365gay.com/news/house-democrats-add-gay-rights-to-immigration-reform/
Comment by Sarah — July 16, 2010 @ 4:09 pm
I agree with posting 16 – if an appeal were to fail, then you get “nothing” – if DOMA in Massachusetts isn’t appealed, hell, 36,000 couples can all relocate to Massachusetts and have all the Federal Benefits, including immigration rights afforded us. Yeah, I’d have to give up a good job and start all over again, but its a small price to pay to be with my husband and not to have to move to Mexico to be with him – I’m pretty lucky I guess as my hometown is Boston (live in Seattle now)so that would make it a little easier.
Comment by Thom — July 17, 2010 @ 9:26 am
Estas declaraciones actuales daran paso a que una persona americana, pueda patrocinar una visa a su companero o companera de ciudadania latino americana? se podria estar hablando que un proceso de tal magnitud pueda durar mas de 24 meses?
Comment by David A Ortiz M — July 18, 2010 @ 12:41 am
RE: comment 12 & 14
Adjudicator’s Field Manual
The AFM comprehensively details USCIS policies and procedures for adjudicating applications and petitions.
Chapter 21 Family-based Petitions and Applications
21.3 Petition for a Spouse.
(a) Petition By Citizen or LPR for a Spouse
(1) Procedural Concerns Particular to Spousal Petitions
(I) Same Sex Marriages
Whether an alleged marriage is valid for purposes of immigration is a question of Federal law, not of State law. In 1996 Congress clarified the Federal law concerning recognition of marriage by enacting the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Pub. L. 104-199 provides a statutory definition of “marriage”, and of the concomitant term, “spouse”. Section 7 of the Defense of Marriage Act (Pub. L. 104-199) states:
Sec. 7. Definition of ‘marriage’ and ‘spouse .’ In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
For a relationship to qualify as a marriage for purposes of Federal Law, one partner must be a man, and the other a woman. This definition applies to the construction of any Act of Congress and to any Federal regulation. USCIS , therefore, must administer the Immigration and Nationality Act in light of section 7 of Pub. L. 104-199 and deny any relative visa petition (or any other application for an immigration benefit) which is based on a same sex marriage.
Comment by PNug — July 18, 2010 @ 10:51 pm
Re: Post #7 by GW. I am not certain that your line of thinking is entirely correct. Because the employment based permanent residency process is so severly backlogged for specific countries (4 or 5, I believe due to a quota system) and due to the new H1b rules, if another avenue opens up which legally allows you to sponsor your same sex partner for perm residency, as long as your “partnership” is well documented and real, there should be no backlash to the applicant. Of course, every case is different and requires legal guidance, but if you are already in a legal status, then it is no different when compared to my (hetero) sister who got an H1b, no perm res sponsorship, but married her college boyfriend. She had to prove her relationship/marriage was real as would you. I married my partner in MA before I received my per res through employment. There was no backlash to that either.
Comment by NolaIndian — July 20, 2010 @ 5:07 pm
“Basically, this would mean that binational couples who live in the handful of states that allow same sex marriage could get immigration benefits, and couples who live in states with mini-DOMAs could not.”
Would be helpful to know the States which is listed as mini-DOMAs. My Husband and I married in MA in 2004 but have now moved to CA. Hoping that no appeals are filled by tomorrow. We would move back to MA the next day if we have to.
Comment by Nick — July 21, 2010 @ 12:46 pm
20.
En teoría debería funcionar como si fuese una pareja heterosexual, mismos derechos y deberes para todos.
Cada caso sería diferente así que podría durar entre 4 o 5 meses o 24, depende también de donde venga tu compañero no americano, por ejemplo, suelen investigar más a latinos que a europeos ya que hay mas latinos intentando acceder a EEUU que europeos.
Comment by ROD — July 21, 2010 @ 12:50 pm
Question for IE:
I’m a forener and I have a valid working visa that will expire in December. My fiance is a born american MA resident and we are plannig to get married here for a long time. Sould we marry in MA and apply for green card now or should we wait 60 days for a possible appeal? If JD appeals the MA decision, will I lose my current visa besides my chance to get greencard?
Thank you.
Comment by Dave — July 22, 2010 @ 11:09 am
Great that everyone can move to MA…unfortunately, my partner can’t leave his family in his state about a thousand miles away.
Comment by Shawn — July 22, 2010 @ 1:01 pm
isnt today 14 days since DOMA ruling – any updates on appeal
Comment by Tom — July 23, 2010 @ 4:48 pm
Have been scouring the news to see if the DOJ appealed this decision and haven’t seen/heard anything. Anyone else hear any news on this? I thought if they didn’t appeal by 7/22 the stay would expire on the law. Wishful thinking I know….
Comment by Stephen — July 24, 2010 @ 12:34 pm
@28: I have done the same and can’t find anything. I believed that they are also waiting for the 60 days appeal period which will be September 9th. Let’s keep our fingers crossed. I wish there was more feedback from IE on their blog, they are so silent sometimes.
Comment by nick — July 26, 2010 @ 1:41 pm
Still nothing in news about DOJ appealing Massachusetts DOMA decision – is the period of “stay” over ? Whats the status?
Comment by Tom — July 26, 2010 @ 2:50 pm
Tom,
Ive been scouring the news as well. No one has any new info. The dearth of follow up on this is frustrating.
Comment by Lisa — July 29, 2010 @ 7:50 am
Any more updates? This makes it look like the decision was not appealed: http://www.towleroad.com/2010/08/doma-and-massachusetts-officially-divorce.html
Or do we have to wait until September 12?
Comment by Andy — August 14, 2010 @ 11:51 pm