07/26/2013 08:47 pm ET Updated Feb 02, 2016

Immigration for Same-Sex Spouses in a Post-DOMA World


The Supreme Court's much-anticipated decision in United States v. Windsor struck down the Defense of Marriage Act (DOMA) provision that had rendered same-sex marriages invisible for federal purposes, including immigration. Without DOMA, the federal validity of same-sex marriages will depend on state law, but it is not always clear which state law applies after married couples cross state lines: What happens when a couple is married in Massachusetts but lives in Georgia?

President Obama has expressed a policy preference for continuing to recognize such marriages for federal purposes, saying, "If you've been married in Massachusetts and you move someplace else, you're still married, and ... under federal law you should be able to obtain the benefits of any lawfully married couple." But he admitted that taht may not be legally possible in all areas of federal law, and his administration is still analyzing that question in various contexts.

Immigration may be the most urgent and compelling case for rapid recognition. It was always heart-wrenching to witness U.S. citizens forced to choose between their country and their families because DOMA prohibited immigration benefits to same-sex spouses and their stepchildren.

Fortunately, the Department of Homeland Security (DHS) quickly recognized the long-established practice that "as a general matter, USCIS [United States Citizenship and Immigration Services] looks to the law of the place where the marriage took place when determining whether it is valid for immigration purposes," and the Board of Immigration Appeals has shown that it will focus on the validity of a marriage where it was celebrated, even in cases where the couple lives in a state that doesn't recognize marriage equality. The first cases approved by USCIS were for couples married in New York and Iowa but residing in Florida and Colorado, respectively. Although there was a disclaimer about possible exceptions in the DHS' original announcement, the administration now seems to have decided in favor of a uniform place-of-celebration rule. It would be right to do so.

At least in the area of immigration, a uniform place-of-celebration rule would rest on firm legal and policy ground. That rule would also comport with the expectations of both Democratic and Republican lawmakers who recently dodged an amendment to recognize same-sex partners under the Senate's comprehensive immigration reform bill, arguing that DOMA's judicial demise would eliminate immigration inequality for all married same-sex couples.

Law and Policy Support a Uniform Place-of-Celebration Rule

The federalism refrains of Supreme Court Justice Anthony Kennedy's majority opinion and Chief Justice John Roberts' dissent in Windsor could be used to argue against recognition of federal rights to gay residents of a state like Texas who travel to California just to get married. But that would be a terrible idea, at odds with the goal of family unity, which is the bedrock of U.S. immigration law.

There is some precedent for refusing to recognize marriages of close relatives and biracial couples for immigration purposes due to strong public policy objections by the state of domicile of the couple in question. Yet those exceptions generally were limited to residents of states that enforced criminal statutes prohibiting the couples' cohabitation or expressly prohibited evasion of state law. It is highly unlikely that criminal prohibitions of same-sex cohabitation or out-of-state marriage would be valid after Lawrence v. Texas.

A better illustration of modern doctrine regarding the immigration validity of disputed marriages involves transgender spouses. Until Windsor struck down DOMA's federal rejection of same-sex marriages, transgender spouses were required to demonstrate that their unions qualified as valid different-sex marriages under state law. In this context the Bush-era Board of Immigration Appeals and the Obama-era USCIS focused solely on the place of marriage celebration, although some states of domicile do not recognize gender reassignment for marriage purposes. The USCIS generally presumes that these are valid heterosexual marriages, and it even allows fiancé(e) petitioners indicating a specific intent to marry in a jurisdiction where the marriage would not be valid "the opportunity to submit ... an affidavit attesting that the intended marriage will take place in a jurisdiction where" it will be valid for immigration purposes.

Family unity, particularly among spouses and their minor children, has long been a lodestar of our legal immigration system, as well as the primary mode of legal immigration. It would undermine this traditional focus on family unity if a married couple's qualification to enter the United States and live together depended on the U.S. citizen's state of residence. While it is harmful to refuse to allow a married couple to file joint income tax returns because of the couple's state of residence, it would be downright cruel to refuse to allow a U.S. citizen to live with her foreign national spouse or her stepchild unless she moved from Texas to California. Such hyperfederalism would undermine the freedom of interstate movement and the concept of national citizenship embodied in the 14th Amendment for over 28,000 U.S. citizens living with same-sex foreign partners.

A policy refusing to recognize same-sex marriages based on the law of a couple's state of residence would also dramatically restrict interstate and international commerce, even in cases where no U.S. citizen is involved. Entrepreneurs and employers would have to consider the marriage law of worksite locations as a primary factor in determining where to locate or base married lesbian and gay employees.

Circling back to Windsor, it is helpful to note that the federalism concern expressed in Justice Kennedy's opinion was not its ultimate rationale. In the end, it was "unnecessary to decide whether the federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance," since DOMA presents discrimination of an unusual character and thereby "violates basic due process and equal protection principles." Justice Kennedy also echoed the refrains of equality, personhood and dignity in choice of intimate and familial relationships that featured prominently in his opinions in Lawrence and Romer v. Evans. These ideas certainly support a unified place-of-celebration rule for marriage validity. In fact, as Justice Antonin Scalia again points out, Windsor also supports a constitutional requirement of full marriage equality for same-sex couples. While the Supreme Court has not yet taken that step, it is clear that a policy discriminating against same-sex couples raises serious constitutional issues. This is significant because the court has held that ambiguities in an immigration statute should be interpreted so as to avoid serious doubt as to its constitutionality. A uniform place-of-celebration rule would avoid such doubts.

Adams v. Howerton Is History Too

The Ninth Circuit Court of Appeals' opinion in Adams v. Howerton has been cited extensively over the last 30 years. Most recently, it was the basis for a New York Times editorial co-written by former Attorney General Alberto Gonzales, arguing that the Obama administration should still refuse to recognize any same-sex marriage for immigration purposes after the Supreme Court's recent decision. Fortunately, Mr. Gonzales was wrong. Adams is no longer good law.

In 1982 (before DOMA was enacted), Adams held that U.S. citizen Richard Adams' Colorado marriage to Australian Anthony Sullivan, even if valid under state law (which it was not!), would not qualify as a "marriage" for immigration purposes. Later, then-Ninth-Circuit-Judge Anthony Kennedy wrote an opinion upholding Sullivan's order of deportation because he did not have a qualifying U.S. citizen spouse.

Adams was originally a three-legged stool, but now it has no leg left to stand on. In Adams, the Ninth Circuit held that Adams' marriage was not valid under federal immigration law for three reasons: (1) immigration statutes that existed at the time barring admission into the United States of any foreign "sexual deviants," such as homosexuals, expressing a clear federal policy incompatible with same-sex marriage; (2) deference to administrative interpretation of the relevant statutes rejecting such marriages; and (3) the "ordinary, contemporary, common meaning" of "marriage" as an indication of congressional intent. The first rationale is no longer relevant after the repeal of the "sexual deviant" ground of inadmissibility in 1990. The second rationale cuts in favor of same-sex marriages once USCIS officials begin recognizing them. The third and final argument was always weak, since it focused only on dictionary definitions of "marriage" to determine the intent of Congress, ignoring congressional intent to rely on state family law as it traditionally has done. In addition, the widespread movement toward marriage equality in the U.S. and other English-speaking countries has altered the common meaning of "marriage" so that many dictionaries now include same-sex couples within its definition.

After Anthony Sullivan's deportation, he and Richard Adams managed to reenter the United States and remain together until Adams died last December. When Justice Kennedy penned Windsor, it may have been six months too late for Anthony Sullivan, but it should lead to recognition of other gay and lesbian married immigrants, even if they live in Georgia or Texas.

Scott Titshaw will be speaking on this topic at the upcoming Lavender Law conference of over 1,500 LGBT lawyers and law students. For more information go to