Marriage Equality and Immigration

Thank you, Angel, for the kind introduction and the opportunity to blog this month.

The Supreme Court’s decision last week in United States v. Windsor had the immediate effect of declaring unconstitutional the IRS’s $363,000 estate tax bill to Edith Windsor. But the law struck down in Windsor—the Defense of Marriage Act—did not just govern the definition of “marriage” in estate tax cases. DOMA defined marriage for “any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” Now that DOMA has been declared unconstitutional, it no longer governs federal income tax, Social Security, veterans benefits, or any of the over 1,000 benefits, rights, and privileges that are contingent on marital status in the U.S. Code.

What does this mean for an immigrant seeking lawful status based on a marriage to a person who happens to be of the same sex? The Obama Administration’s answer so far has been resoundingly clear: these immigrants are now eligible. Department of Homeland Security Secretary Janet Napolitano issued a statement just hours after the Supreme Court’s ruling promising to “implement [the] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.” And, according to the New York Times, less than one hour after the Supreme Court announced its ruling in Windsor, an intern carried the court’s ruling “still warm from the printer” to an immigration judge, who then halted the deportation of the Colombian husband of a U.S. citizen. On Friday, the U.S. Citizenship and Immigrant Services issued its first visa approval based on a same-sex marriage between a Bulgarian immigrant and a U.S. citizen living in Florida.

This broad interpretation certainly seems like the most just reading of Windsor as applied to immigration cases. For years, same-sex couples have been denied the family reunification rights granted to opposite-sex couples. Immigration law is not just a question of filling out the appropriate paperwork. In order to obtain permanent resident status (what is commonly known as a “green card”), an immigrant needs to fit into a particular category, usually based on a family relationship to a U.S. resident or a job offer from a U.S. company. Denying same-sex couples the same rights as opposite-sex couples tore families apart and encouraged same-sex couples live in undocumented status. Another common scenario was marriage fraud; the immigrant spouse would marry a U.S. citizen friend of the opposite sex in order to gain lawful status, divorce the friend, and then marry (or live with) his or her actual partner.

The Obama Administration’s response is heartening, but was not inevitable. The demise of DOMA did not automatically mean the end of this policy. In fact, the governing law pre-DOMA denied immigration benefits to same-sex couples. In the leading case, from 1982, the Ninth Circuit set forth a two-part test for determining whether a marriage would be recognized for immigration purposes. First, is the marriage valid under state law? Second, does the marriage qualify under the Immigration and Nationality Act? In that case, Adams v. Howerton, the answer to first question was easy. Richard Adams and his spouse, Tony Sullivan, had managed to obtain a marriage license from the county clerk in Boulder, Colorado, but there was no evidence that Colorado would actually recognize a same-sex marriage (remember, this was 1982!). But the court also addressed the second question, and determined that the Immigration and Nationality Act—which included no language one way or the other on whether “marriage” included same-sex couples—could not be read to include same-sex couples.

There are several reasons to think that Adams v. Howerton is no longer good law. First of all, the decision was predicated in part on the fact that “homosexuality” made an immigrant inadmissible to the United States. “We think it is unlikely,” the court explained, “that Congress intended to give homosexual spouses preferential admission treatment … when … it mandated their exclusion.” Congress repealed the law excluding homosexuals in 1990, so a court today would no longer need to read the preference for married couples in light of it.

Second, Adams was decided before same-sex marriage was widely available. In 1982, the county clerk in Boulder was handing out marriage licenses and Adams and Sullivan jumped at the opportunity to marry. But no state—and indeed, no nation—had yet embraced marriage equality. The Netherlands became the first country to grant same-sex marriages in 2001; by the time Windsor came down last week, same-sex marriage was also available in Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, and France, as well as in parts of Mexico. It is also now available in Massachusetts, Vermont, New Hampshire, Maine, Connecticut, Rhode Island, Maryland, Iowa, New York, and Washington, D.C. Following the Supreme Court’s dismissal of Perry, hundreds of same-sex couples married last weekend in California. Same-sex marriage became available in Delaware today. Minnesota’s legislature recently passed a law that will allow same-sex marriages to begin there on August 1. It would be very difficult for a court today to hold, as the Adams court did, that “the term ‘marriage’ ordinarily contemplates a relationship between a man and a woman.”

Perhaps the most important reason that Adams is no longer good law, however, is the Obama administration’s response to Windsor. In Adams, the Ninth Circuit emphasized that it was obligated to give “substantial deference” to agency interpretation of a statute. The INS (now DHS) had consistently interpreted the term “spouse” to “exclude a person entering a homosexual marriage.” Now that DHS has changed its approach in light of Windsor, the widespread availability of same-sex marriage, and the lightning-fast change in public opinion on this subject, agency interpretation cuts in the opposite direction.

Expanding immigration benefits to same-sex couples will create a host of new legal questions. Which state’s rule should DHS defer to when deciding whether a couple counts as “married”? How will DHS investigate marriage fraud? How will derivative citizenship claims be adjudicated? I’ll be exploring some of these issues in upcoming posts.

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7 Responses

  1. Joe says:

    This underlines the importance of @3 of DOMA, even if was limited merely to federal applications. Without it, there was some flexibility for agency and executive as a whole application of same sex marriage.

    Also, Windsor by striking down DOMA, sec. 3 (not adding that last part is almost forgivable, since the opinion itself repeatedly merely says “DOMA”) shows the breadth of a ruling that is not just about states though the opinion goes out of its way to focus on state discretion, the right of the people of states to evolve on marriage.

  2. Brett Bellmore says:

    Given the number of immigrants who are members of plural marriages, in full legality in their country of origin, I wonder what basis remains for insisting that the US will not recognize polygamous marriages? Especially given that polygamy has been a widespread institution for thousands of years, and same sex marriage was essentially unknown as much as a decade ago, and even now could not be described as “wide spread”.

    I suspect the legal challenges are already being planned. Perhaps the Mormons are setting one up right now. And what basis remains for opposing them?

  3. Joe says:

    Perhaps, those who “wonder” can look at the the hundred other comment threads where this “what about polygamy” question comes up and it is answered over and over again.

    Ted Olson also helped during oral argument. But,the “widespread institution” issue does clash with the “change in definition” argument other way.

  4. Brett Bellmore says:

    Look, Joe, I’m not asking if it’s possible to distinguish SSM from polygamy. Obviously it is, or they’d be the same thing. Nor am I asking if some people do so distinguish, in an “Of course this doesn’t imply polygamy is next!” way of disputing reductio arguments.

    I’m asking what legal basis remains for so distinguishing. I don’t see squat.

  5. Joe says:

    It has been explained whenever this question — it always tends to be — raised how polygamy, incest or bestiality is not the same thing for equal protection purposes [“legal basis”] than same sex marriage.

  6. Kari Hong says:

    What a thoughtful and helpful analysis! The portability of a state’s marriage law will be an interesting issue to watch play out. It seems like the immigration courts have been grappling with that issue for years (in terms of the validity of first-cousin marriages, uncle-niece marriages, etc.) Kerry, do you have any thoughts on whether the same-sex marriage issue will fit nicely into the existing framework or move it in either direction. Thanks for the great piece.

  7. Kerry Abrams says:

    Thanks for all of the insightful comments. I’ll try to address some of these issues in upcoming posts.