Multi-American

How immigrants are redefining 'American' in Southern California

DOMA ruling a victory for bi-national couples, but legal questions remain

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As one of its two history-making rulings Wednesday on same-sex marriage, the U.S. Supreme Court has struck down a core section of the federal Defense of Marriage Act, stating in its opinion that the 1996 law "is unconstitutional as a deprivation of the liberty of the person that is protected by the Fifth Amendment of the Constitution."

In practical terms, the DOMA ruling means gay and lesbian married couples will now be eligible for the same federal benefits heterosexual couples are eligible for — including those relating to immigration.

Heterosexual married partners have so far been the only ones allowed to sponsor a foreign-born spouse for an immigrant visa. DOMA didn't allow federal recognition of same-sex marriages for immigration purposes. But with the legal barrier now removed, this changes the status.

Here's how Lavi Soloway, an immigration attorney and a founder of The DOMA Project, explained it in a recent interview:

...the marriages of same-sex couples will be treated exactly the same way as all other marriages under federal law. For immigration purposes, that means that if you are married and your spouse is from another country, you file a petition and apply for a green card for your spouse.

If your partner is abroad, you file a fiancé(e) visa petition, and you bring your partner to the United States for purpose of marrying and applying for a green card and settling and building a life together in this country, just as unmarried opposite-sex couples do in the same situation.

Soloway and other legal experts have pointed out that the federal Immigration and Nationality Act simply requires that one be in a valid marriage to sponsor an immigrant spouse, and does not define such a marriage by gender. With DOMA out of the way, the immigration law could then apply as written to any couple. "The only law we need already exists," Soloway said.

In spite of this, others say couples could still hit bumps in the road as they go about the sponsorship process. In 1982, the U.S. Ninth Circuit Court of Appeals ruled against a same-sex couple in an immigrant sponsorship case known as Adams v. Howerton. The couple had obtained a marriage license in Colorado and been married by a minister there — even thought the state did not officially recognize same sex marriage — after which the U.S. citizen partner sought to sponsor the foreign-born partner for a visa. As part of the decision, the judges held that related federal laws were intended only to apply to heterosexual spouses.

Although the Immigration and Nationality Act isn't worded in the way that blocks same-sex couples from immigration benefits, this lower-court precedent could present a potential problem, said Kevin Johnson, dean of the UC Davis School of Law and an immigration law expert.

"It could be a long discussion and litigation before the courts start recognizing it," Johnson said. "It would be far simpler for Congress to expressly recognize gay marriage in the [Immigration and Nationality Act]."

In May, a proposed amendment to the Senate's pending immigration reform bill that would have extended sponsorship rights to same-sex couples died in committee. Since then its sponsor, Democratic Sen. Patrick Leahy of Vermont, has prepared another amendment to the bill that would officially recognize same-sex marriages in immigration law, leaving less room for interpretation.

Leahy's amendments were embraced by gay and lesbian advocates as a backup plan in case the Supreme Court upheld DOMA. But even with today's decision, codifying the recognition of same-sex marriages in the law could prevent future court battles, Johnson said.

"It's far easier to change the law to recognize same-sex marriages than to wait for the courts to do it," he said.

It's not likely this will occur via immigration reform, though. Senate Judiciary Committee members opposed to Leahy's original amendment in May said they feared it could bring down the entire bill. His latest amendment faced slim chances of getting a floor vote, and most likely won't in light of the Supreme Court decision.

The Senate could vote on the immigration package as early as this week, and there's a good possibility it will be approved. But all bets are off in the Republican-led House, which has yet to come up with its own comprehensive immigration plan.

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