The differentiation between same sex and opposite sex marriages “demeans
the couple, whose moral and sexual choices the Constitution protects,
and whose relationship the state has sought to dignify.” This is what
Justice Anthony Kennedy has recently held in a groundbreaking Supreme Court Case. Striking down
the provisions of the Defense of Marriage Act is a triumphant decision
for gay couples in the States, which entitles them to full federal benefits
(Hollingsworth v Perry, previously called Perry v. Schwarzenegger, US
Supreme Court, Justice Anthony Kennedy).
However, same-sex couples have struggled for a long time before Justice
Kennedy arrived at this long-awaited conclusion. Equality before the law
has not always been an easily achievable goal. In terms of rights, there
is a fine line between which situations should be treated similarly and
which ones rather differ from one another.
Gay marriage in America and the derivative rights of the non-American spouse
have been a major source of controversy in immigration law over the years.
Despite the ongoing conflicting opinions on this issue, twelve states
and the District of Columbia have legalized same-sex marriage, six of
which last year. However, this was not as encouraging as it seemed. Despite
the accepted legal status of gay marriage, the
immigration rights stemming from this status still differed.
Namely, it has not been possible for the spouse to sponsor the non-American
partner to obtain the residency permit (Green Card). The foreign spouse had to get this residency permit through other means,
such as relying on her or his employer to sponsor him/her for the Green
Card or, in a more special situation, through looking for political asylum.
For the second scenario, evidence must be brought forward that the individual
has been prosecuted in his native country because of his sexual orientation.
Therefore, gay couples who wanted to be reunited in the States encountered
many impediments along the way.
However, the status quo has changed radically. In the eyes of the law,
same-sex couples are now on an equal footing with the ‘traditional’
couples in terms of immigration rights. Thus, instead of relying on alternative
provisions to obtain the Green Card, it is now possible for the non-American
spouse to be sponsored by his partner. This controversial legal path has
recently been unlocked when a Bulgarian national received the Green Card.
He was thus allowed to permanently reside with his partner without having
to rely on a student visa or other less accessible alternatives.
In taking this decision, the Supreme Court overturned the federal law-
The Defense of Marriage Act- where marriage was defined as a heterosexual
union. By a majority of five to four, the Supreme Court has bravely held
that it is a violation of the gay couples’ rights to deny them government benefits.
Even though Florida still does not recognize same-sex unions, this decision
has brought about a major change in the legal landscape concerning immigration
law in the States. There is a great number of both pending applications
and denied Green Card applications which will be reassessed in light of
this far-reaching decision which has created a very strong precedent for
enhancing the gay couples’ immigration rights. The recent ruling
will almost certainly increase the number of immigrants in the States
with more and more homosexuals deciding to reside there since the legal
path is now much easier to take. This increase may be small, but not insignificant
accounting the fact that nine million Americans classify themselves as
being gay, which amounts to approximately 3.8 percent of the American