

Author: on 04/15/2013

As the Senate gets ready to unveil the details for what is to be the biggest reform of our immigration laws this week, families across our nation hope their fears and struggles will be ended or at least eased with the new laws.  A major concern revolves around the definition of marriage for the purposes of our immigration laws.

The U.S Supreme Court recently heard arguments on the constitutionality of the Defense of Marriage Act (DOMA).  The effect of its decision will be felt on families across the country.  At the center of the Supreme Court decision is Section 3 of DOMA, which defines marriage as between a man and a woman.  This federal provision defining marriage effectively prevents legally married same-sex couples from receiving any federal benefits.  Because immigration law is federal law, legally married binational couples are prevented from applying for immigration benefits.  But even if the Supreme Court strikes down Section 3 of DOMA, the inequality for binational couples will likely not end.

DOMA consists of three sections. Section 3, currently before the Supreme Court challenging the definition of marriage, and Section 2, which expressly reserves the power for each State to establish its own rules for marriage equality.

Specifically Section 2 of DOMA notes that States are not required to give effect to any other State’s recognition of a same-sex marriage.  This provision was specifically included to address the concern that States who do not allow for marriage equality would not have to recognize the same from other states.  This provision, which has not been challenged, allows any State in the Union to enact their own DOMA-like statutes to prevent recognition of legally valid same-sex marriages entered into in other states or even internationally.  Consequently, a legally married same-sex couple in a state where marriage equality is recognized may be denied the recognition of their union in other states.  There are currently 38 U.S. states that have banned same-sex marriage, either through legislation or constitutional amendments.

Although, the Immigration and Nationality Act (INA) does not define marriage, the Department of Homeland Security has traditionally looked to the state laws to determine if a marriage is valid for immigration purposes or not.  Without a clear federal definition of marriage and family, the application of immigration laws for the LGBT community will vary from state to state.  As a result, binational families will face continued discrimination in certain parts of the country.   Some legally married same-sex couples who can afford it, may have to establish dual residences in different states in order to prevent deportation from the U.S.

This will result in the creation of an underclass of Americans who aren’t able to enjoy equal protection under the law.


Written by Annaluisa Padilla, AILA Secretary, and Ally Bolour, Member, AILA Media-Advocacy Committee

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