Family unity is one of the driving forces in our immigration system. United States citizens and lawful permanent residents can obtain immigrant visas for their spouses. Many foreign nationals who come to the United States on employment-based visas bring their spouses and children with them. And some waivers and forms of relief from removal are available only to those with close relatives living in the United States.
But gay and lesbian families have always been left out. Because the U.S. immigration agencies rely on section 3 of the Defense of Marriage Act (DOMA)—defining marriage as a union between one man and one woman—lesbian and gay U.S. citizens and lawful permanent residents are barred from obtaining immigrant visas for their spouses. Gay and lesbian noncitizens also are precluded from obtaining other immigration protections. As a result, families are separated and spouses of U.S. citizens and lawful permanent residents may be deported from the United States.
However, such discriminatory treatment may soon end. Wednesday, the Supreme Court will hear arguments in a case challenging the constitutionality of DOMA. The case, United States v. Windsor, involves whether Edith Windsor will be forced to pay hundreds of thousands of dollars in federal estate taxes, taxes that married persons do not have to pay. Ms. Windsor and her spouse Thea Spyer were in a committed relationship for over 40 years and were lawfully married in 2007. Ms. Spyer died two years later. Because of DOMA, however, the Internal Revenue Service did not recognize their marriage and refused to refund the estate tax. Ms. Windsor sued the United States, arguing that DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws. The lower courts agreed with her, and now DOMA’s fate lies in the hands of the nine Justices.
Although this case does not involve immigration law, the Supreme Court’s resolution of the case likely will affect whether married gay and lesbian couples are considered married for immigration purposes as well.
An interesting aspect of this case is that the Solicitor General – who represents the United States before the Supreme Court – will be arguing in favor of Ms. Windsor. Two years ago, the Obama Administration took the historic step of declaring that DOMA was unconstitutional and that it would no longer defend it in the courts. Following that announcement, Members of the U.S. House of Representative’s Bipartisan Legal Advisory Group, or “BLAG” voted along party lines to intervene in DOMA litigation and defend the law. BLAG hired former Bush Solicitor General Paul Clement. Mr. Clement, who just last year argued that the Supreme Court should strike down the landmark healthcare law, and defended Arizona’s notorious anti-immigrant law, SB 1070, will once again take center stage in one of the Court’s most high profile and significant cases of the year.
Currently, there are nine states plus Washington, D.C. that sanction marriages of gay and lesbian couples. These states have decided that there is no place in their laws for discrimination based on sexual orientation. Hopefully, the Supreme Court will reach that same conclusion with respect to federal law. It’s past time our immigration system stop treating gay and lesbian families differently than any other family.
Photo by Adam Peck