The field of immigration law is as expansive and complex as the communities it governs.
As both political parties prepare to take on the thorny issue of immigration reform, immigration and gay rights have made an appeal to the White House to hold off on deciding cases involving same sex couples. More than fifty immigration and gay rights asked the Obama administration in an open letter to delay decisions in cases where same sex partners have requested green cards for their spouse until the Supreme Court decides on the Defense of Marriage Act case that is currently under consideration.
The case before the Supreme Court considers whether the federal Defense of Marriage Act is constitutional. DOMA prohibits federal benefits being paid to the gay spouse of an individual. This act has come under scrutiny as more states legalize gay marriage and these couples desire to have the federal government recognize these marriages as legal bonds.
Nine states have already or are about to legalize gay marriage, as well as the District of Columbia. There has also been a shift in society towards the acceptability of gay marriage. In recent years, a majority of Americans have now begun to favor allowing gay couples to legally marry. The Defense of Marriage Act, which was enacted in 1996 has become a legal impediment for gay couples who wish to share their Social Security, pension and other benefits.
How the Supreme Court will rule in this case is unknown, but four federal courts and two appeals courts have already struck down a provision within DOMA which defines marriage as a union between a man and a woman. DOMA is of primary importance in the decision process for issuing visas to same sex partners; it is almost an impossibility because the federal government does not recognize the legality of the union.
Immigration and gay rights advocates have requested that the Obama administration hold off on making decisions in these green card cases until the Supreme Court has ruled. It is unknown wether the Supreme Court will follow the opinions of the majority of Americans and lower courts to abolish parts of DOMA, which would pave the way for same sex spouses to obtain legal residency permits.
Although the Republican party has taken up the defense of DOMA in the courts, there are some Republicans who would like to see same sex couples receive the same consideration that heterosexual couples get. Sen. Susan Collins of Maine has sponsored the Uniting American Families Act which would allow fair and comparable consideration to couples who are homosexual. There has been support for this proposal from the Democrats, but, so far only Collins has advocated this position in her party.
As an immigration attorney, I am eager to see how the Supreme Court rules in this case. If you have questions about this or any other immigration issues, my staff and I are available for private consultations; please call (512) 215-5225 for an appointment.