ON Wednesday, June 26, 2013, the US Supreme Court issued its decision in Windsor v. US, which ruled that the Federal DOMA, passed in 1996, is unconstitutional. The decision, in holding that each of the 50 states may define “marriage” according to their own terms, should allow for the extension of immigration benefits based on same-sex marriages entered into in those states that have legalized such marriages.
The issue in the Windsor case arose when the surviving spouse in a same-sex marriage recognized in the State of New York was denied a Federal Estate Tax exemption under Section 3 of DOMA. DOMA amended the Dictionary Act, which is a law providing rules of construction and definitions for over 1,000 federal laws, by defining the terms “marriage” and “ spouse” as excluding same-sex partners. Windsor paid $363,053 intestate taxes and sought a refund, which the Internal Revenue Service denied, which gave rise to the litigation case.
The decision has been heralded by the Lesbian and Gay communities, as well as immigrant rights advocates, who believe that fundamental fairness dictates that same sex couples from different countries be permitted to reside together as family units. According to Laura Lichter, President of the American Immigration Lawyers Association (AILA) “Same sex bi-national couples have fought long and hard for the right to keep their families together. It’s only fair that if a US citizen or permanent resident is legally married-regardless of sexual orientation-that their lawful marriage be recognized by the federal government when it comes to immigration issues.” Lighter stated further that “[b]ecause of DOMA, bi-national same sex couples often had to choose between staying together, but leaving the US, or splitting apart. Over 30 countries provide immigration benefits for same sex couples and we have seen firsthand the incredible toll of this unconstitutional discrimination. Any American would agree that being forced to choose between your homeland and your loved one is a heart-breaking choice.”
There are an estimated 36,000 same sex bi-national couples in the United States, and those families include 25,000 children. The Supreme Court’s ruling last week should guarantee all lawfully married couples equal rights in the context of Federal benefits, including the right to be petitioned for lawful permanent resident status as the spouse of a US Citizen.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
