Has Immigration Equality filed a lawsuit challenging DOMA?
What does the Supreme Court’s review of DOMA constitutionality in Windsor v. United States mean for LGBT immigrant families?
On December 7, 2012 The U.S. Supreme Court agreed to review the case of Windsor v. United States in which the Second Circuit Court of Appeals ruled DOMA unconstitutional. This means that the case will be heard by the Supreme Court this spring and that we expect a final decision by the Court in June 2013. While there is no way to be certain how the Supreme Court will rule, a growing number of federal courts across the country have found the law unconstitutional. If the Supreme Court strikes down DOMA, gay and lesbian Americans may be able to sponsor their foreign partners for immigration benefits shortly thereafter.
Why did the Supreme Court take two different marriage cases, Windsor and Perry?
On December 7, 2012, the Supreme Court granted certiorari in two different marriage cases. Windsor v. United States is a challenge to the federal Defense of Marriage Act. Edie Windsor is the surviving spouse of Thea Spyer. Because of DOMA, the federal government does not honor their marriage, and Edie has to pay over $360,000 in estate taxes which she would not have to pay if she were in a heterosexual couple. The legal issue in Windsor is straightforward — can the federal government treat a lesbian, married couple differently from a straight married couple? We think (and several federal courts have already held) that the U.S. constitution forbids such blatant discrimination between two similarly situated groups. Although there is no immigration issue in the Windsor case, if the Supreme Court finds that DOMA is unconstitutional, we believe that USCIS will no longer deny green cards to lawfully married lesbian and gay couples.
The Supreme Court also agreed to hear Hollingsworth v. Perry. This case will address a bigger issue — whether there is a fundamental right to marry under the U.S. constitution. If the Court decides that such a right exists, then gay men and lesbians would probably be able to marry throughout the United States, including California where the case originated. If, however, the Court determines that the federal constitution does not require states to grant marriage licenses, couples in marriage equality states could still marry; whether or not they can file for green cards would depend on the decision in Windsor.
What did the Department of Justice (DOJ) do with the DOMA litigation?
On February 23, 2011, the Justice Department took a major step forward and announced that it sees DOMA, the so-called “Defense of Marriage Act,” as discriminatory and unconstitutional. This is the first time the DOJ (and the president) have ever taken a public position against DOMA. By taking this position, many LGBT rights activists and legal scholars feel that the DOMA litigation will be more likely to succeed. As momentous as this move was, however, the Justice Department made clear that for now, DOMA is still in force and will continue to bar federal government agencies—including the ones that control immigration — from recognizing valid marriages.
If the answer is “not yet,” then when?
DOMA won’t be fully dead until it is either repealed by a majority vote of Congress and signed by the President, or until the U.S. Supreme Court finds it unconstitutional. The Respect for Marriage Act, a bill which would repeal DOMA has been introduced in Congress by Senator Feinstein and Congressman Jerrold Nadler as lead sponors. There are several lawsuits challenging Section 3 of DOMA, including one brought by Immigration Equality on behalf of binational couples.
On December 7, 2012, the U.S. Supreme Court agreed to review the case of Windsor v. United States in which the Second Circuit Court of Appeals ruled DOMA unconstitutional. This means that the case will be heard by the Supreme Court this spring and that we expect a final decision on DOMA’s constitutionality by June 2013. While we have no way of knowing how the Court will rule, it may become possible for gay and lesbian Americans to sponsor their foreign partners for immigration benefits shortly thereafter.
If DOJ is not defending DOMA, who is?
After DOJ decided to stop defending the constitutionality of DOMA, the House Republican leadership (BLAG, so named for the “Bipartisan Legal Advisory Group” though the group has a Republican majority) hired Paul Clement to defend DOMA’s constitutionality in court challenges. So far the U.S. House has authorized $1.5 million for Clement to defend DOMA.
We’re already married; should we apply for a green card?
The DOJ memo states that the U.S. government will continue to enforce DOMA until there is a final judicial decision or until Congress changes the law. That means that, at least for now, if you file a marriage-based green card application, it will still be denied and if your foreign born partner is out of status he or she will probably be put into deportation proceedings. Although Immigration Equality and others have advocated with the Administration to hold green card applications in abeyance (that is to not deny them) until there is a final DOMA decision, they have refused to do so. This is one of the reasons that Immigration Equality filed a federal lawsuit in April 2012.
We’re not married, but should we get married now just to be ready?
Maybe. Lesbian and gay couples need to weigh the benefits of getting married against the risks. If your partner has a tourist visa or student visa, he or she may be found to have “immigrant intent” if Immigration learns that he or she is married. If you are concerned about “immigrant intent” issues you should speak with an attorney before marrying.
On the other hand, if at some future point marriage is recognized for immigration purposes, there may be advantages to being married longer. For example, in a marriage-based petition for lawful permanent residence, a foreign national can get a green card with just one “green card” interview if she has been married for at least two years prior to filing. Please see “Should We Marry?” for more information.
How does DOMA affect a marriage performed abroad?
In general, a marriage that is validly entered into, whether abroad or in the U.S. is valid for all purposes. DOMA is the big exception to this rule. In immigration it gets a little more complicated. Immigration generally performs a three part test:
- Was the marriage valid where celebrated?
- Is there any strong public policy ground against recognizing the marriage?
- Is it a bona fide marriage?
So, whether a marriage has taken place in Canada or Massachusetts, the answer to the first question would be yes. It’s the answer to the second question which currently prevents people from getting immigration benefits solely because of DOMA.
If we’re getting so much closer to ending DOMA, is it still important to push the Uniting American Families Act (UAFA)?
Absolutely. Much of the LGBT rights movement, like other civil rights movements, has involved advances followed by setbacks. Today, it looks like the tide has turned against DOMA, but, unfortunately, no one can guess what will happen in a court case that may not ultimately be decided for several years. Binational couples suffer every day, and it would be dangerous to put all of our eggs into one basket when the result is so uncertain. We must continue to fight for UAFA to ensure that couples in every state can stay together, and we must continue to fight in case the DOMA litigation stalls.
Do any of these DOMA developments have any effect on couples where one spouse is transgender?
Yes, in many marriage-based green card applications where one spouse is transgender, the transgender spouse has to submit evidence about his or her medical transition as well as documents about legal recognition of his or her gender change, and these cases generally involve a long battle with Immigration. If DOMA were no longer in effect, it would not matter to Immigration whether marriages were considered opposite sex or same sex so it would not be necessary to submit this kind of proof of gender.