New York Daily News
By Allan Wernick
March 28, 2013
Immigration equality is coming. When the U.S. Supreme Court finds that the Defense of Marriage Act unconstitutional, as I believe it will, U.S. citizens and permanent residents will be able to petition for their same-sex spouses. While the case the Court considered Wednesday involves tax laws, if the Court strikes down DOMA, it will mean an end to immigration law discrimination against same-sex spouses.
DOMA was always about immigration. Congress passed DOMA to prevent U.S. citizens and permanent residents from petitioning for their same-sex spouses. In 1996, when Hawaii was about to become the first state to legalize same-sex marriages, Congress passed DOMA. It was designed to make federal benefits, such as spouse petitioning, unavailable to same-sex couples. DOMA impacts a couple's rights under more than a thousand federal laws including those affecting estate taxes and retirement benefits as well as immigration.
The Supreme Court heard two cases this week addressing same-sex marriage issues. In the case argued Tuesday, Hollingsworth v. Perry, the Court was asked to overturn a California law that barred same-sex marriages. How the court will rules will have only a marginal impact on immigration rights. The case argued Wednesday, United States v. Windsor, the Court considered whether the federal government can deny spousal benefits to a same-sex couple lawfully married under the laws of a State or a foreign country. A victory for same-sex marriage advocates is likely there and will directly impact immigration rights.
If at least one conservative Justice considers Windsor to be a "States rights" case, a conservative concept, then the Court will strike down DOMA. Windsor will likely be decided on whether Congress must respect the historic right of States to determine who can marry. As Justice Kennedy noted Wednesday during oral argument, "when . . . the Federal Government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody."
The idea that the federal government should defer to state law in marriage matters has long guided the USCIS and its predecessor agency, the Immigration and Naturalization Service. To determine whether a marriage is valid, the USCIS looks to the laws of the place where the marriage occurred. Examples are whether the couple had reached the age of consent for marriage, whether to recognize a foreign divorce and whether marriage between relatives is valid.
Beyond the attractive State's rights' argument, my optimism that the Court will strike down DOMA comes from the growing public acceptance of same-sex relationships. Judges, like all of us, are affected by the world around us. That includes Justices of the U.S. Supreme Court. While their mission is to apply the law to the facts, history teaches us that they are often affected by social trends. This lesson is illustrated most famously by the Court's 1954 decision in Brown vs. Board of Education. There, the Court considered a long-standing interpretation of the constitution that held that blacks could be forced to use separate facilities, including schools, if the facilities were equal. Reversing a decision almost 50 years old, the Court found that "separate was equal," violated the constitution. The constitution hadn't changed, society had.
If the Court strikes down DOMA, a same-sex spouse of a U.S. citizen or permanent resident who is lawfully married will qualify for the coveted green card. The U.S. citizen or permanent resident petitioner will file the same forms as other petitioners. And, the same-sex green card applicant will follow that same process as other married couples and if successful, receive the same benefits. For instance, the same-sex permanent resident spouse of a U.S. citizen will qualify for U.S. citizenship after three years in stead of the usual five. The law will consider the children under 18 of the new immigrant parent to be the stepchild of the U.S. citizen or permanent resident parent. In other words, the exact same rules will apply to same-sex marriages as those that apply to different-sex marriages.