What is DOMA?
Section 3 of the Defense of Marriage Act (DOMA) was signed into law by Bill Clinton in 1996. DOMA imposed for federal purposes a heterosexual definition of marriage despite any state definition to the contrary. The typical and normal deference to state definitions was thereafter supplanted by this new federal mandate which for the better part of two decades controlled and barred Federal recognition of same-sex couples married legally abroad or in the growing number of states that enforced and protected marriage equality. The impact of DOMA was to prevent any immigration (or other federal) benefit from accruing to couples where they were otherwise legally married. A couple married in Massachusetts therefore could not file to get a greencard based on their marriage nor could they file jointly their federal tax returns or enjoy any of the oft-noted 1000+ federal benefits and obligations which legal matrimony traditionally entailed. After DOMA, for Federal purposes, same-sex marriages in the United States did not exist.
What did the Windsor Decision say?
The first part of Windsor discusses at length whether or not the case is of the sort that the court should be hearing in the first place. Conservatives on the Court in their dissents in the case- largely tout this as the basis on which the decision is wrong. The case should never have been heard by the Supreme Court in the first place. The majority disagreed and ruled on the merits.
Importantly while the case examined the traditional exclusive role of the States as sovereigns in the development and definition of marriage and family law; the Court did not seek to decide the case on federalism grounds. This means that it did not invalidate the law as an unconstitutional exercise of Federal power that improperly preempted State powers which the Constitution protects. That would have been, in some ways, an easier, less sweeping and much less controversial holding to declare that States have an exclusive legal power to define what is and what is not a valid marriage.
U.S. v. Windsor went much further. The heart of the decision finds that when Congress enacts a law that targets and singles out gay people, the government must assert a really good reason to do so if the law is to be constitutionally valid and enforceable. There must be an important or compelling state interest to pursue if the Federal Government is to treat classes of citizens (gay and straight) differently before the law.
For over 200 years the court has created a body of decisions. These precedents guide today’s Court on how it should examine current cases and controversies before them. Over time this ‘jurisprudence’ or legal thinking has required that when the government treats classes of people differently before the law (remember: justice is blind), there must be a good compelling reason for this to happen. According to precedent, the various bases on which the government through legislation may distinguish between people triggers various degrees of scrutiny by the Supreme Court and other Federal courts when a law is challenged on a constitutional ground within a lawsuit. For example—race based distinctions written into law are presumptively invalid. These distinctions trigger the highest degree of scrutiny by the courts. Other random distinctions not based on any protected or suspect classification (e.g. -like being 17 years old/ or being the driver of an automobile) need only be justified by a stated reason by the government (or a ‘rational basis’) to be upheld as valid. These sorts of laws are presumptively valid.
The Windsor decision decidedly increased the level of scrutiny applicable to laws that target LGBT people moving forward. This has been, since the mid-1990s, the general trend of the Court when it struck down a Colorado State Constitutional Amendment that barred legal protections for LGBT people in that State. The Windsor Court now applies a much higher level of scrutiny than had previously been the case where there seems little valid room to target or single out any citizen based on sexual orientation as a classification, given the long history of societal animus and violence towards gays and lesbians in the U.S.
In Windsor, the Court held that DOMA had as its purpose to harm and denigrate same-sex couples whom legally speaking some States specifically decided to afford equal legal protections. Where New York State had decided to afford equal protection with all rights and duties to Edith Windsor and her wife, Thea Spyer, the Federal government under DOMA had acted to harm that same couple without adequate justification for doing so. This statutory purpose, the Court held, is not a valid justification (namely defending heterosexual marriage as DOMA itself was aptly named, Justice Kennedy wrote). Therefore this illicit and improper purpose failed to justify the distinction made between same-sex and opposite-sex married couples. The Court held that DOMA contradicted the requirement of equal protection guaranteed by the Fifth Amendment.
We all remember that the Fifth Amendment was designed to reign in the power of the Federal government against the people. Namely the amendment requires that no person should be deprived liberty without due process of law. Here due process of law is defined as simply the government justifying why the liberty of same sex couples to live as a family was being denied while those of straight couples was being protected. This necessity to justify the distinction in classes of people—to protect us all equally– was in keeping with the due process definition as elaborated and refined by the equal protection clause of the Fourteenth Amendment, historically applicable to Federal action by the Fifth Amendment.
As dense (and fun) as this may all appear, U.S. v. Windsor is the powerful, heady stuff of history in the making! The struggle for equal rights in the U.S. for gays and lesbians can never be the same. The Windsor case, despite claims of the majority to the contrary, will slowly be applied more broadly. Windsor will form the basis for an ever-expanding, Constitutionally-mandated requirement for all governments- Federal, State and Local. To legislate and regulate sexual orientation or to distinguish between classes of citizens as straight or LGBT, the government entity must come up with a new compelling reason. The old justifications about morality and protecting children and the myriad of other vague grounds simply will no longer work.
This is likely why Justice Scalia in his colorful and bitter dissent stated that the decision leaves “the second, state-law shoe to be dropped later, maybe next Term.” His prediction refers to the Federal applicability of the newly heightened scrutiny afforded gays and lesbians and predicts that it will be applied to State legislation that singles out LGBT people. Tick. Tock. What demographics and the political branches do not change nation-wide, the courts eventually will.
What does this mean for bi-national LGBT families?
Immigration law provides for the ability of U.S. citizens and lawful permanent residents (greencard holders) to file for or ‘petition’ for their immediate relatives—being defined as parents, children and spouses. Because DOMA can no longer define marriage and override various state definitions of marriage, any marriage valid in any state or country becomes valid for immigration purposes. Through our history, immigration law has accommodated various forms of marriage which relied on local definitions of the place where the marriage was entered into. DOMA interrupted that history but now the location of a marriage again controls its validity. If you married in Belgium or Massachusetts where same-sex marriage is legal- then these marriages are valid for immigration purposes. Your family can legally include your same sex husband or wife and your treatment by the various decision makers and agencies which interpret and enforce immigration laws will be exactly the same as any heterosexual family or couple.
Family definition itself is central to various forms of relief provided by the immigration legal system in pursuit of family unity as the Congressional policy goal. DOMA’s repeal has a direct and immediate impact on what is defined a “qualifying relative” who can now be considered if someone for example was being deported or was said to be barred from returning to the U.S. Additionally a same sex married spouse or parent can now derive status from one’s newly recognized immediate relatives. For example someone seeking asylum or an employment-based visa may provide derivative status to an immediate family member. After the Windsor decision, same-sex spouses and their children will be included within these definitions of derivative family members. This too allows for same sex couples to be equally considered for all the many forms of relief which by design promote family unity. Same sex couples and parents will now be treated on par with all American families. DOMA had been the only legal hindrance to recognition of same-sex couples and parents legally married. As such, the implementation of the changes mandated by U.S. v. Windsor within the American Immigration legal system will be sweeping, prompt and complete, more so perhaps than in any other area of federal law or regulation.
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