In a 5-4 decision, the Supreme Court has struck down the 1996 Defense of Marriage Act which blocked federal recognition of same-sex marriages.  In writing the decision, Justice Anthony Kennedy characterized DOMA as promoting, “deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”  So how does this affect immigration for same sex couples we represent and those around the nation?
What does the ruling mean?

  • The federal government must recognize gay marriages deemed legal by the states (currently 12 states plus the District of Columbia, prior to a ruling on California’s Prop 8).
  • Recognition of legal same sex marriages determines who is covered by more than 1,100 federal laws, benefits and programs.  Among these are family leave, Social Security, and immigration rights.
  • A May Senate Judiciary Committee decision to exclude same sex binational couples from immigration talks for green cards and other benefits is now likely moot.
  • According to www.salon.com, “Advocates are optimistic the president will be a partner in swiftly extending benefits to gay binational couples.”

Where did the initial conflict arise?
The Defense of Marriage Act (DOMA) which was struck down by the Court today defined “marriage” as “a union between one man and one woman, and spouse as referring only to a person of the opposite sex.” As such, U.S. Citizenship & Immigration Services held that “no legal authority permits recognition of homosexual relationships as “marriages” for purposes of immigration and nationality laws, regardless of whether the relationship many be recognized as marriage under the law where the relationship came into existence.” With today’s decision, the Supreme Court has removed that conflict, apparently leaving no federal law prohibiting a state’s right to sanction same sex marriage.
So what’s next for immigration for same sex couples?
Proponents of immigration benefits for same sex marriage hope that the President moves swiftly in instructing the Department of Homeland Security to begin processing applications for marriage-based green cards for couples previously ineligible based on DOMA.  The President has previously acted in creating a pathway for nonimmigrant LGBT couples to join their same sex partners in the U.S.  Read more in our prior blog: B Visa Offers One Option for Same-Sex Couples (Part Three of Three).  Many practitioners stand ready to file green card applications for their same sex binational couples.
If you would like to speak with an attorney regarding your own case, please contact us to schedule a consultation – and stay tuned!