Cheers erupted this morning outside the Supreme Court as the ruling was announced that by a 5-4 decision, Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional.
For over 15 years, because of DOMA, bi-national same-sex couples were often forced to choose between separation or staying together, but living in exile from the U.S. Our nation was really behind the times on this, since over 30 countries provide immigration benefits for same-sex couples and we have seen firsthand the incredible toll of this unconstitutional discrimination. Any American would agree that being forced to choose between your homeland and your loved one is a heart-breaking choice, and not one that is worthy of our traditions of liberty and fairness. And today, in a landmark civil rights decision, the Supreme Court agreed, striking down part of DOMA as unconstitutional.
Under current law, the agencies charged with administering the immigrations laws may only recognize lawfully married couples—and under DOMA’s federally mandated discrimination, that explicitly excluded same-sex couples.
As immigration lawyers, we know that whether a marriage is valid impacts all areas of immigration law: for example, a lawful union would be required before the CEO of a multinational company could relocate to the US with her partner and a US citizen or resident may only sponsor a spouse or have a stepchild relationship recognized where there is a valid marriage. Even in something as serious as a potential deportation, an immigration judge is barred from looking at the hardship on US citizen or permanent resident partner for an individual facing deportation—unless there is a marital relationship.
There will certainly still be challenges for same-sex couples in the immigration process. Only twelve states and Washington, DC (in addition to 15 countries) recognize same-sex marriage. Civil unions or domestic partnerships—so far—do not appear to be covered by the ruling. Traditionally, the immigration authorities have recognized family relationships based on where the event was celebrated, rather than where the couple lives. The continued application of that rule will ensure that a couple that legally married in Iowa, for example, but moved to a state like Colorado (which has a state constitution ban on gay marriage) can still be recognized as spouses under Federal immigration law.
Same-sex bi-national couples will still face more and different hurdles than heterosexual couples in the immigration process. For example, there may be increased scrutiny as to the bona fides of a same-sex relationship, which—combined with greater challenges to providing evidence of a marital relationship that are traditionally the subject of agency review—may make it harder to prove a real relationship.
Even if DOMA has been struck down, that doesn’t mean that LGBT individuals are suddenly free from prejudice. Some individuals may not want to disclose their sexual orientation to their employer, friends or family, meaning that a rich source of corroborating evidence may be off limits. For others, the reality may be that it’s just not safe to openly admit they are gay, much less identify a spouse. The Supreme Court’s invalidation of DOMA only struck the Federal government’s ban on recognition of marriage. It did not protect LGBT individuals from discrimination or worse, and it will be critical for all elements of the process—including the Department of State in the workings of its consulates overseas—to be particularly sensitive to this potential harm.
As an extra benefit, allowing our immigration system to recognize same-sex bi-national couples will also make America more attractive to global talent. According to Immigration Equality, there are an estimated 36,000 same-sex bi-national couples in the United States, and those families include 25,000 children. AILA believes that LGBT/same-sex families should be included in the definition of the American family and that should be reflected in our immigration laws. The Supreme Court’s ruling today will guarantee all lawfully married couples equal rights in regards to immigration.
Same-sex bi-national couples have fought long and hard for the right to keep their families together. It’s only fair that if a U.S. citizen or permanent resident is legally married—regardless of sexual orientation—that their lawful marriage be recognized by the federal government when it comes to immigration issues.