As many of you know, on 6/26/2013, the US Supreme Court held the Federal ban on gay marriage to be unconstitutional in U.S. v. Windsor. Now, this was only one part of DOMA . There were two pertinent sections: Section 2 – states do not have to recognize gay marriages of other states, and Section 3 – For federal purposes marriage is between a man and a woman. Section 3 was struck down because it was a deprivation of liberty in the 5th amendment, the rights and benefits afforded to married couples in over 1000 federal statutes and regulations, and it violated equal protection in the 14th amendment.
One of the important rights that were afforded to LGBT couples was the right to keep your spouse in the U.S., just like heterosexual couples. Shortly after the ruling, NYC immigration courts put an end to deportation and removals for significant others for of U.S. LGBT citizens. Yesterday, the Secretary of the Department of Homeland Security released a statement declaring that the Department of Homeland Security will now review form I-130’s. Form I-130 is the petition for an Alien Relative which now recognizes gay marriage visas (IR1/CR1 Visa). Now this is just ONE step in having your significant other stay here. The I-130 allows the significant other to enter and temporarily stay in the U.S. You must also file for an I-485, which is an application to register permanent residence, for the significant other’s green card. Then, there are interviews and check-ins and a whole list of other things that are required for this process.
Unfortunately not every person with a same sex spouse may be able to file for their spouse. In the states that do recognize gay marriage (Massachusetts, California, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maine, Maryland, Rhode Island, Delaware, and Minnesota) and also in Washington DC, people who marry and reside in those states and DC, should be able to file without any problems. The states that recognize civil unions/domestic partnerships for gays (New Jersey, Oregon, Nevada, Illinois, Hawaii, and Colorado) most likely will be able to file without problems.
For the states that do not recognize gay marriage, civil unions, or domestic partnerships, there most likely will be issues since the Department of Homeland Security has considered the state’s laws when considering marriages for immigration purposes. Additionally, for those who get married in one state that recognizes marriage but live or move to another state that does not recognize gay marriage, may also have some issues.
Unfortunately, there really is no explanation as to what will happen because there has been no official statement of what the exact policies are. The only statement that came out was that I-130’s will no longer be automatically denied for same sex couples.
Anyone considering petitioning for an alien relative should contact a local immigration attorney because this article did not cover the intricacies of immigration law (for example someone’s criminal record and background can affect one’s immigration status), many of the forms are confusing, and there are many requirements and procedures for filing that one needs to know.
As mentioned before, DOMA restricted over a thousand rights and benefits to gay couples. Now that DOMA’s Section 3 was deemed unconstitutional, in the states that have gay marriage, gays now have federal rights, benefits, and protections.
Just to name a few:
1) The Family and Medical Leave Act is now available to LGBT employees’ spouses in states which recognize gay marriage. This protects employees and guarantees job safety for a certain period of time to care for their parents, children, and spouses.
2) Additionally, Federal income tax benefits are available. As a same sex couple that is Federally recognized as married, you now have many deductions and credits available to you to reduce your taxable income.
3) Federal estate taxes no longer tax will bequests in wills to same sex spouses.
4) Medicaid will recognize gay couples in their income calculations so a same sex couple does not to be more impoverished than an opposite sex couple to receive Medicaid.
5) COBRA (Consolidated Omnibus Budget Reconciliation Act), which requires employers to give former employees the opportunity to continue their former employer-provided health insurance for them and their spouse so long as they pay the premium.
6) Social Security payments after death will now go to the same sex widow.
7) Current military spousal benefits and also veteran spousal benefits which range from Basic Allowance for Housing, which calculates the compensation to help pay for off-base housing based on local markets and dependents (i.e. spouses and children), to being buried next to your veteran spouse in a national cemetery.
However, the fight is not completely over. There are states that do not recognize gay marriage and many federal benefits are contingent on a state recognizing gay marriage. Repealing DOMA was the first step in having full marriage equality. The next step is having a state’s ban on gay marriage heard at the U.S. Supreme Court. That landmark case could not have been Hollingsworth v Perry because of Federal procedure in courts. The proponents of Prop 8 did not have standing. Standing is the authority to sue or represent a party. In this case, www.protectmarriage.com was owned by a man named Hollingsworth. Hollingsworth is just a citizen of California who said he wanted to defend Prop 8 because the sanctity of his marriage was being violated and he was representing a class of violated heterosexuals to defend Prop 8 and represent California, because California itself did not want to defend Prop 8. Unfortunately for Hollingsworth, in American Jurisprudence, State officials or State appointed representative must defend the law when it is being challenged on Constitutional grounds, not common citizens.
The U.S. Supreme Court properly held that Hollingsworth lacked standing to defend Prop 8 and overruled the 9th Circuit Decision stating that Hollingsworth should not have made it into Federal Court in the first place. This was the right choice for the U.S. Supreme Court to make because if they heard it on the merits (on the constitutionality of it), it would have set a terrible precedent of allowing any person to represent a state in matters of law when they have no relationship except as a general citizen.
One way I can see the next step in law happening is if a same sex couple gets legally married in one state… and then is forced to move to another state because of a job, possibly a gay couple in the military being deployed in a state which has a state ban on gay marriage that was passed by the legislature… and thus having to lose the rights that come with marriage… and then suing the state.
It would most likely avoid the standing issue because if the state passed a law, rather than a voting initiative, there will be a group of state legislatures defending the law since they passed it themselves. move to another state because of a job, possibly a gay couple in the military being deployed in a state which has a state ban on gay marriage that was passed by the legislature… and thus having to lose the rights that come with marriage… and then suing the state.