The movement for gay marriage scored two decisive victories this week when federal district judges ruled against the constitutional validity of the federal government limiting marriage to a man and a woman.
Gill v. OPM strikes down section 3 of the federal Defense of Marriage Act (DOMA), which explicitly states that marriage is limited to a man and a woman and applies only to the appellants. Mass v. U.S. Department of Health and Human Services applies only to the Commonwealth and strikes down DOMA in its entirety by using the Tenth amendment to proclaim that the federal marriage legislation intrudes on a core area of state sovereignty.
Unfortunately, the scope of the ruling only applies to the state of Massachusetts. Ironically, an appeal from the Obama Department of Justice would bring the matter to the First District Court of Appeals, and then most likely to the United States Supreme Court. But upon appeal, the matter would be “stayed” meaning that DOMA would still remain in effect in Massachusetts until the Supreme Court ultimately gives a ruling on it. In the meantime, the cases could create political space for a repeal of DOMA in Congress.
Given the long time-frame and unpredictable outcome, pinning hopes on a repeal of DOMA is not advisable for same-sex binational couples. Getting “permanent partner” legislation such as the Uniting American Families Act through Congress is unrelated to DOMA and actually a benefit that could be granted by President Obama via Executive Order because USCIS has such expansive discretionary powers.
The question that arises though is whether repealing a federal statute that limits civil marriage to that between a man or a woman automatically grants immigration benefits to same-sex couples. In all likelihood, only couples who live in states that allow same-sex marriage would qualify for immigration benefits. An executive order from the President or Board of Immigration Appeals decision such as Matter of Lovo might be required to move immigration services in the right direction.
There’s little doubt that DOMA is unconstitutional based on the pure unadulterated anti-LGBT animus on Congressional record and it is only a matter of time till the law is repealed. However, our 36,000 bi-national same-sex couples and many others who are ineligible for federal and state benefits conferred by recognition of civil marriages cannot afford to wait longer.
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