In an order published today, December 7, 2012, the U.S. Supreme Court announced that it will review both the challenge to the federal Defense of Marriage Act (DOMA), as well as the Ninth Circuit decision striking down California’s ban on same-sex marriages, Proposition 8.
Defense of Marriage Act (DOMA)
Currently, under DOMA, marriage is defined as “the legal union of one man and one woman” for federal and inter-state recognition purposes in the United States. The Act has been used to deprive same-sex couples, legally married under state law, of federal benefits. These benefits include health, pension, tax, and immigration benefits–those which are readily available to married heterosexual couples. The Court will thus have to decide whether this definition stands, and whether Congress can legally deny these federal benefits to married, same-sex couples.
As the law stands now, U.S. citizens and lawful permanents residents who are legally married under state law cannot petition for their same-sex spouses, because the federal government, the entity with sole power to grant immigration benefits, does not recognize their marriages. Similarly, immigrants who would qualify for relief from deportation based on a legal marriage to a U.S. citizen or lawful permanent resident spouse, are not eligible for relief because their spouses are not of the opposite sex. Although some progress has been made by federal immigration authorities to decrease discrimination against same-sex couples, gay immigrants remain at an extreme disadvantage.
If the Supreme Court upholds the circuit court decision striking down DOMA, the decision will have a profound impact on immigrants in same-sex relationships. If DOMA is overturned, immigrants in same-sex marriages will be able to take full advantage of the immigration laws, which includes petitioning for their spouses or receiving other immigration relief.
While striking down DOMA would mean federal recognition of same-sex marriages for immigration purposes, it would not itself make gay marriage legal in every state. However, the Court’s review of Proposition 8, California’s ban on same-sex marriage passed by voters in 2008, could do just that. While the Court is only required to decide whether California’s specific ban on gay marriage is constitutional, it could tackle the larger issue of whether or not it is constitutional to limit the right to marry to heterosexual couples at all. Considering that 31 states have already banned same-sex marriage, a decision in favor of gay marriage from the country’s highest court could potentially overturn every state law prohibiting same-sex marriages.
Both cases are set to be heard this March, with decisions on track for late June. If a decision striking down DOMA or Prop 8 is likely to affect you, it is important to stay informed by checking your local news, and talking to an attorney about how these potential changes in the law could affect your immigration status.