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Supreme Court Ruling Opens Door to Same Sex Bi-national Couples

The decision last week by the Supreme Court that abolished key provisions of the Defense of Marriage Act has paved the way for immigration of same sex spouses who are married U.S. citizens. The United States Supreme Court ruled that Section 3 of the Defense of Marriage Act or DOMA was unconstitutional in a 5-4 decision. This ruling should allow immigration authorities to formally recognize the matrimonial relationship between a same sex partners when considering visa applications.

As an immigration attorney in Texas, I have witnessed numerous couples who shared their lives with one another separated by U.S. laws that failed to recognize gay marriage. Many of these couples endured enormous hardship as a result of their separation, and, often, children in these families were denied access to their loving parent.

The Defense of Marriage Act was a federal law passed in 1996 that only defined marriage as a relationship between a man and a woman. This law prevented many benefits from being shared with same sex partners including insurance, social security and tax benefits. DOMA also prevented immigration authorities from providing preference to same sex partners of U.S. citizens.

The Supreme Court decision to strike down DOMA was based on the conclusion by the Supreme Court that DOMA violates due process and equal protection. In his majority opinion, Justice Anthony Kennedy stated that DOMA effectively segregates gay, lesbian and bisexual people and blocks access to rights granted to other Americans. Citing the Fifth Amendment’s equal protection clause, Kennedy reasoned that DOMA was unconstitutional because it denied same sex partners federal benefits.

The ruling will have particular importance for the almost 36,000 same sex couples who have at least one partner seeking an immigration visa. In the wake of last week’s decision, the Department of Homeland Security has initiated the process to allow immigration officials to consider marriages between gay and lesbian couples in their visa applications and USCIS is accepting same-sex marriage petitions effective immediately.

The Supreme Court decision may also have implications for the immigration reform bills working their way through both houses of the U.S. Congress. Last week, the Senate passed their version of the bill, which did not include any provisions for same sex bi-national couples. Senator Patrick Leahy had strongly considered adding such an amendment, but had declined finally due to the belief that would greatly undermine chances of passage. The court ruling now makes the issue of little importance, as same sex couples have the same standing as heterosexual couples.

Having practiced and studied immigration law for many years, I often had to explain to same-sex couples that family-based immigration was not an option; However, this Supreme Court ruling has changed that because the majority chose to eliminate the law failed based on its failure recognize the reality of same sex marriage.

If you or someone you know would like to discuss the Supreme Court’s decision or related issues, please contact my office for a private consultation at (512) 215-5225.

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