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DOMA won’t be fully dead until it is either repealed by a majority vote of Congress and signed by the President, or until the U.S. Supreme Court finds it unconstitutional.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. DOMA has several sections, but Section 3, the part at issue recently which defines marriage as only between a man and a woman for the purpose of federal benefits, is the one most relevant to binational couples and the one on which the Supreme Court is most likely to rule in the next few years.
What happens to the DOMA challenges that are already in court?
For more than a year, we have been watching closely to see what happens in Gill vs. Office of Personnel Management, a case that Gay and Lesbian Advocates and Defenders (GLAD) brought on behalf of several married Massachusetts couples. In this case GLAD argues that the federal government has to recognize those couples as validly married. GLAD won the case at the district court and is in the process of defending its victory in the First Circuit Court of Appeals. That litigation is directly affected by the Justice Department’s announcement that it will no longer defend DOMA in Court, however, the Republican leadership in the House of Representatives has hired outside counsel to continue to defend DOMA in federal court.
Can couples who live and marry in Massachusetts get green cards now based on the lower court ruling?
No. The case is on appeal and there is a stay in effect, meaning that until the First Circuit rules, the decision of the District Court is on hold.
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.
We’re not married, but should we get married now just to be ready?
Maybe. Same sex 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. With this new development in the DOMA litigation, it is more important than ever that you consult a qualified immigration attorney about your individual situation. Please see “Should We Marry?” for more information.
If DOMA is struck down by the U.S. Supreme Court, then will the immigration issue be solved for same sex binational couples?
For couples who live in the states with full marriage recognition (currently New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa, and Washington DC) yes—once there is a final ruling on DOMA, their marriages should be accepted for immigration purposes. For couples who reside in states that don’t have marriage recognition, the immediate effect of the ruling would depend on what the U.S. Supreme Court decision says. If the Court issues a narrow ruling finding that same sex couples in a state that recognizes their marriage must be allowed to receive federal benefits, there may be no immediate solution for people who live in the majority of states where there is no state-recognized marriage. However, couples in those states could relocate to the states which do have favorable marriage laws. If the Supreme Court issued a sweeping ruling barring marriage discrimination on the basis of sexual orientation, then states that currently forbid same sex marriage might not be able to do so in the future. The Gill is an “as applied” challenge, which means that if the plaintiffs win, immigration benefits will not automatically be included in the ruling, however, if and when DOMA is found unconstitutional, it is unlikely the Administration will continue to enforce it in the immigration context.
How else could marriages be recognized?
There is legislation pending in Congress called the Respect for Marriage Act. If this bill passes, DOMA would be fully repealed.
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 either in the state where the couple lives or intends to live or at the federal level?
- 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.
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.
