Wednesday, June 26, 2013
With the demise of the Defense of Marriage Act, commonly referred to as DOMA, the path toward same sex or gay spousal immigration rights has been paved. While no statement has yet been released by the US Citizenship and Immigration Services (USCIS), it is difficult to define any grounds that USCIS might rely on to continue its past ban on recognizing same sex marriages. "The federal statute is invalid [DOMA], for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote in the majority opinion. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Perhaps most importantly for same sex partners seeking immigration benefits, DOMA was not struck down on 10th Amendment arguments, i.e. making gay marriage a purely State’s Rights issue. Rather DOMA was struck down on 5th Amendment grounds. As such there appears no legal wall behind which USCIS may hide its current anti-same sex marriage stance. If a state or nation recognizes same sex marriage, the federal government – USCIS included – may not displace, disparage, or cause injury to same sex married spouses. In other words, regardless of how USCIS reacts to the Supreme Court decision, those that attempt to file cases based on same sex marriage appear to have a very solid case should USCIS deny a case and the case then be taken up on appeal to federal court. Whether a few test cases will be needed to prod USCIS in line with the Supreme Court’s decision or whether USCIS will actively reach out to the LGBT community to assist them in filing their petitions remains to be seen. Christopher M. Pogue, Esq. is Of Counsel with the Fleischer Law Firm, LLC in Cincinnati, Ohio. His law practice specializes in representing individuals, families, and businesses around the United States and around the world in US immigration matters.