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.
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