Recently, a federal judge in California ruled that the Defense of Marriage Act is unconstitutional because it discriminates against same-sex couples who are seeking immigration benefits. On April 19, 2013, U.S. District Court Judge Consuelo Marshall found that the Act—commonly referred to as “DOMA”— violates the Fifth Amendment’s guarantee of equal protection of the laws. Along with the cases currently pending at the U.S. Supreme Court in Washington, this decision is another sign that the wall preventing same-sex couples from obtaining marriage-based immigration benefits may come tumbling down.
The Defense of Marriage Act is a federal law passed in 1996, which restricts federal marriage benefits to heterosexual couples and allows states to deny recognition of same-sex marriages performed in other states. At the center of the controversy is Section 3 of the Act, which defines marriage – for all federal government purposes – as a “union between one man and one woman.” This section bars federal agencies from recognizing same-sex marriages and prevents them from providing a range of benefits, including many immigration benefits found in the Immigration and Nationality Act (“INA”). These include the ability to petition for permanent resident (“green card”) status on behalf of a partner from another country and the availability of waivers that allow foreign nationals to remain in the U.S. to avoid hardship to a U.S. citizen spouse. In the case decided in April, Aranas/DeLeon v. Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) denied a “green card” application from Jane DeLeon, a citizen of the Philippines who had been residing with her partner for 20 years. Although she was otherwise eligible to become a permanent resident based on her employment, she needed a special hardship-based waiver in order to receive her green card and remain in the U.S. She argued that it is a violation of her equal protection rights – along with those of countless other foreign nationals and their same-sex partners and spouses – for the U.S. government not to recognize a legal same-sex marriage as valid for purposes of marriage-based green cards and waivers under U.S. immigration law.
For 220 years prior to the enactment of DOMA, the definition of marriage was left to individual states. The judge in this case recognized that DOMA disrupted this “long-standing practice of the federal government deferring to each state’s decisions as to the requirements for a valid marriage.” He found the law unconstitutional because the “broad distinction created by DOMA” between same-sex and opposite-sex marriage was not rationally related to the government’s interest in creating a uniform federal definition of marriage. Additionally, the judge ordered that the case proceed as a class action, allowing all members of lawful same-sex marriages who have been or may be denied immigration benefits under the INA to be covered by the decision.
So, where does this leave same-sex couples in the immigration system today? Unfortunately, the status quo preventing same-sex couples from receiving federal immigration benefits has not yet definitively changed, despite indications from various courts that have found Section 3 of DOMA to be unconstitutional in other contexts. However, in late June of 2013, the United States Supreme Court is expected to rule on whether DOMA violates the Equal Protection clause in United States v. Windsor, a decision that could have broad implications in many areas of federal government administration, including immigration benefits. After oral arguments before the court in March, many believe that the future of DOMA is in jeopardy. According to experts, the Supreme Court justices seemed skeptical about the law’s intrusion into the traditional role of states in defining marriage, as well as the targeting of same-sex spouses as a class. The Supreme Court will also be ruling on the constitutionality of “Proposition 8,” by which California voters took away the right of same-sex couples in California to marry. There is no way to know exactly how the Supreme Court will decide, but individuals who would benefit from a ruling that supports federal benefits for same-sex couples may wish to begin seeking legal advice about their immigration options. Keep an eye on our website as we will be posting updates on this issue as soon as there is anything to report.