The Supreme Court has finished hearing arguments in two cases regarding challenges to the Defense of Marriage Act (DOMA) and is expected to issue a ruling in June 2013. Both cases involve same-sex marriages.
DOMA was enacted by Congress in 1996, and Section 3 of the law defines “marriage as only a legal union between one man and one woman as husband and wife, and the word “spouse’ as referring only to a person of the opposite sex who is a husband or a wife.” As a federal law, DOMA’s definition of marriage applies in granting or denying benefits under federal laws like estate taxes and immigration.
In the first case, United Stated v. Windsor, Ms. Windsor who was in a same-sex marriage, sued the Internal Revenue Service (IRS) for a refund of estate taxes she was forced to pay on the property left by her deceased “same-sex spouse”. IRS refused to recognize their same-sex marriage under Section 3 of DOMA and collected the tax. Had Ms. Windsor been in a heterosexual marriage, she did not have to pay the estate tax.
The second case, Hollingsworth v. Perry, involves California’s Proposition 8 – a state law banning same-sex marriages. While not a case specifically challenging DOMA, this case affects the rights of thousands of binational same-sex couples living in the United States, as same-sex couples who are legally married are not considered married for immigration purposes.
USCIS recognizes marriages so long as they are valid in the place of celebration or state of domicile or intended domicile, but has refused to confer benefits based on a same-sex marriage because of DOMA. Thus, U.S. citizens (USCs) and legal permanent residents (LPRs) who are gays, lesbians or transgenders (LGBT) cannot petition or obtain immigration benefits for their spouses. The American Immigration Council cites a report that there are 267,000 undocumented LGBT immigrants in the United States.
There are now nine states that have allowed same-sex marriages – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington and Vermont. New Jersey passed a similar bill in 2012 but the bill was vetoed by the governor. Two states – New Mexico and Rhode Island – recognize out-of-state marriages of same-sex couples.
On February 23, 2011, Attorney General Eric Holder notified Congress that President Obama has concluded DOMA Section 3 is unconstitutional and the Executive Branch will no longer defend DOMA. However, unless DOMA is repealed by Congress, or the Supreme Court strikes down DOMA’s definition of marriage as being between one man and one woman, DOMA remains to be the law and will be enforced.
Thus, regardless of how many states recognize same-sex marriages, USCs and LPRs who are in these marriages cannot file petitions for their same-sex spouses, and other immigration reliefs for undocumented LGBT immigrants based on marriage – like cancellation of removal, waivers, VAWA – cannot be filed.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding its regular free legal clinic at the Max’s Restaurant in Vallejo, California on September 27, 2010. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
