The demise of DOMA may mean that same-sex married couples are now entitled to the same marriage-based immigration benefits as anyone else. But marriage equality also entails equal burdens. As I argued in Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625 (2007), immigration law holds marriages involving immigrants to a higher standard than the law ordinarily demands, and this will now be true for same-sex couples.
Under state family law, married people are not required to live together. They don’t have to open joint bank accounts, jointly own property, take extensive vacation photos, document which guests attended their weddings, or know the color of their spouse’s toothbrush. They don’t even have to have sex. Of course, married couples might do these things, and they often do. But the law doesn’t intrude into what are considered private family decisions, unless the couple divorces, and then it intervenes to protect the ex-spouses from each other.
But when an immigrant seeks a benefit based on marriage, immigration officials look to a variety of factors¬—including the ones listed above—to determine whether the marriage is “genuine.”
I argued in Married Fraud, 100 Cal. L. Rev. 1 (2012) that this close scrutiny isn’t really surprising, given the nature of the benefit at stake. In that article, I canvassed the many instances in which the law uses marriage as a threshold requirement for a public benefit. I showed that some types of public benefits result in more intrusive government interference than others: those that are substantial and those that endure even if the recipient gets divorced.
Health insurance, for example, is a nice benefit, but it is largely prospective: you don’t know if and when you’ll need it. It can also be obtained using means other than marriage. Its costs have been shunted onto private employers (and likely passed through to employees). Some people marry for health insurance, true, but usually to someone with whom they are already in a relationship. That’s because they need to stay married to use it. Immigration benefits, in contrast, have an immediate utility that is often unavailable through any other means. And you don’t have to stay married to keep the benefit. As a result, immigration benefits are highly susceptible to abuse, and the government has responded by closely scrutinizing marriages when they are tied to immigration status. Sometimes, this close scrutiny has the unfortunate effect of requiring a more traditional form of marriage from citizen-immigrant couples – joint bank accounts, shared domicile, traditional gender roles, etc.
So what does this all mean for same-sex couples? Two consequences come to mind. The first is that although same-sex couples will now be able to seek immigration status based on marriage, they will also be subjected to the same close scrutiny as other couples. To the extent that same-sex couples structure their lives similarly to straight couples, this won’t be a big deal (or at least it won’t be any worse than it already is for straight couples). But there’s some evidence that same-sex couples are different, on average, for example, that they are more egalitarian about child-care responsibilities. If that’s true, will the pressure to conform to what immigration officials deem to be a “typical” marriage be even more onerous for same-sex couples than for opposite-sex couples?
Second, one frequently-voiced reason for opposing benefits for same-sex couples is that doing so invites fraud. On this theory, two heterosexual friends could marry just to seek immigration benefits. On its face, this argument seems kind of silly. A heterosexual person can already commit fraud under current law—just not with a person of the same sex. And a gay person could marry an opposite-sex friend, so it’s not clear why marriage equality suddenly opens up the door to massive fraud. The underlying fear may have more to do with uneasiness on the part of marriage equality opponents about how to identify a “real” LGBT relationship.
This uneasiness could lead to a different problem. If immigration officials feel uncomfortable in judging the bona fides of a same-sex marriage, they may begin to pressure applicants to “perform gayness” in a more overt way. This appears to be what has happened in the asylum context. Individuals who have sought asylum because they were persecuted for their sexual orientation have reported feeling that they had to demonstrate they were “typically” gay in order to convince government officials that they deserved asylum. One man interviewed by the New York Times, for example, reported wearing pink eye shadow and a bright pink V-neck shirt to his interview and engaging in “intermittent outbursts of tears.”
Opening immigration benefits to same-sex spouses is the right thing to do. But it’s something that I hope the government does with care. There is a danger that same-sex couples will be required to force themselves into an ill-fitting traditional marriage norm, and a simultaneous danger that they will be encouraged to embody cultural stereotypes of gayness.