High five to Justice Elena Kagan. She asks: when Congress passed DOMA, wasn’t its judgment infected by dislike, by fear, by animus and so forth? Answer: You bet. Heck, the House of Representatives (the ones who hired the fancy lawyer to defend DOMA before the Supreme Court) wrote a report that said DOMA was required to express moral disapproval of gay people.
As you must know, today the United States Supreme Court heard oral argument in a case called Windsor v. United States. The issue is the constitutionality of the Defense of Marriage Act or DOMA. The exact issue in Windsor is whether the IRS can tax same-sex couples differently than opposite-sex couples. What does a tax case have to do with immigration for our gay and lesbian brothers and sisters?
Quite a bit. The legal issue in Windsor is simple: is DOMA constitutional? There are two different theories about why it is unconstitutional. First, does the Equal Protection Clause of the federal constitution prohibit the federal government from denying more than 1000 federal marriage benefits to a couple that is validly married under state law solely because the couple is same sex? Second, does Congress even have the power to enact a marriage law when the Constitution gives that power to the states?
If the Supreme Court finds DOMA unconstitutional, bi-national gay and lesbian couples who are validly married should be able to obtain immigration benefits regardless of their sexual orientation. This means that if the Supreme Court gets this right, United States citizens who are married to immigrants, can petition their spouses for lawful permanent residency. After listening to oral argument this week, we are hopeful that the Court will rule in favor of equality.
We expect a decision in Windsor in late June.
The take-away: get ready and get set. Get ready: start talking to a legal professional about possibilities and options. Tie yourself into a reliable information source. Sign up for our newsletter! (Hey, it’s easy and free!). Get set: start planning and preparing for a Supreme Court ruling (that could go either way).