NYC Criminal Defense & Immigration Attorneys
Schedule Your Case Evaluation 888.502.8461
Same-Sex Marriages and the New Immigration Law

Same-Sex Marriages and the New Immigration Law

Same-sex marriages were not recognised in the United States as stated clearly in Section 3 Defences of Marriage Act 1996 and as a result, gay spouses are not able to even apply successfully to be a permanent resident in the country. The benefits conferred as a result of the traditional definition of marriage between a man and a woman under US laws are, inter alia, the right to vote for the president, eligibility for jobs in government agencies and tax exemption for health benefits were not allowed to be enjoyed by the gay partner. This stance was, and still is supported especially by staunch Christians who routinely discriminate against gay relationships.

Legally, the position has now changed following the judgment of United States v. Windsor. The case was essentially about a surviving gay spouse, Edith Windsor who sought to claim estate tax exemption of her deceased spouse's estate but was legally banned from doing so by DOMA where the definition of "spouse" did not include same-sex partners. The 84-year old contended that DOMA violated the principles of equal protection within the Fifth Amendment of the US Constitution. The Supreme Court found on her favour.

Justice Anthony Kennedy delivered the majority opinion of the Court, among other things, stating that DOMA's primary outcome is to "identify a subset of statesanctioned marriages and make them unequal" and not for the reason of "governmental efficiency". Hence, it follows that with the creation of two conflicting marriage establishments in the same state, "DOMA forces same-sex couples to live as married for the purposes of state law but unmarried for the purpose of federal law". Justice Kennedy futher elaborated that this puts homosexual partners in an "unstable position of being in a second-tier marriage" as well as creating difficulties for the children of such couples to comprehend the "integrity and closeness" of their own family.

This judgment was regarded as "historic for gay rights in the US" and a "landmark decision" because not only same-sex marriages are now federally recognised (albeit only in states where such marriages are legal) but foreign homosexual spouses can now have their applications to be a permanent resident in the US approved just two days after the struck down of federal law denying federal benefits towards married gay couples.

The fact that the U.S. Citizenship and Immigration Services worked so speedily to implement the changes in policy after the Supreme Court's ruling might have been for the most part political. However, it also connotes to an extent that whilst one appreciates that everyone may have diverse moral and religious beliefs, it is clear that the law now regards same-sex couples to have the same rights as that of heterosexual couples in the administration of US immigration laws.

This is an example of the rule of law being of equal protection for all citizens and not excluding any single individual or group. On top of that, it could be said that the judgment abides by Section 1 of the Fourteenth Amendment of the US Constitution seeing as today, there are both the protection from deprivation of "any person of life…without due process of law" in the context of same-sex marriages and equal protection of rights of women in economic, social and political milieu.

What then, is the impact of the new ruling for non-American citizens who married their partner of the same-sex who are American citizens? The position now is, if a married homosexual couple marries in a state that allows such marital unions and one of them is an American citizen, he/she can then begin the petition for the naturalisation of the non-American partner.

If the couple live in a state that does not recognise gay marriage, the petition can still be done because the federal government recognises such marriages and for immigration purposes, this is de facto irrelevant. The brunt of living in such a state is that state benefits may not apply for now but federal benefits will still be afforded but it is again immaterial for the purposes of immigration.

Additionally, same-sex couples in California can resume in marrying their non-citizen spouse and subsequently petition the federal government for citizenship due to the invalidation of Proposition 8 in Hollingsworth v. Perry but this judgment has little effect upon the status of immigrants or immigration law.

Following the change in immigration law, an apt account of the variety of reactions might have been that of the U.S. Representative Congresswoman Susan Davis (D-Calif),

"These rulings are an affirmation of marriage, love and commitment of two loving people for the good of society. It is also an affirmation of the spirit of equality that is laid out in our constitution. Today the court moved us into the 21st Century where future generations can be proud of who they are."


Request a Free Consultation

Nothing is more important to us than our clients. That’s why our initial consultations are always free.
    • Please enter your name.
    • Please enter your name.
    • Please enter your email address.
      This isn't a valid email address.
    • Please make a selection.
    • Please enter a message.