Of the 1,138 federal benefits bestowed upon married couples that are denied to same-sex married couples because of the Defense of Marriage Act (DOMA), perhaps the one with the potential to cause the most heartbreak is the inability of a citizen spouse to sponsor a non-citizen spouse for immigration benefits. If the federal government were so inclined, it could commence deportation proceedings against the non-citizen spouse and leave the couple without an easier way to resolve the situation that is available to their married heterosexual counterparts. Of course, as with so many other federal and state benefits denied to married or partnered same-sex couples, these couples often have to turn to attorneys, either to challenge the law on equal protection or due process grounds, or to develop legal workarounds to these dilemmas to solve the problems at hand as they occur.
Keep in mind that hiring an attorney is a costly solution for a group that is already on the brink of economic peril. With no federal employment protection extended to LGBT individuals, it is still legal in 29 states to discriminate against someone in employment based on sexual orientation.1 These people are also vulnerable to gift and inheritance tax when their spouse or partner dies. And without marriage equality in many states, there is a significant lack of divorce equality, which can have devastating impact on a same-sex partner who puts him or herself in an economically vulnerable position for the sake of the relationship. This is all on top of the immigration issue, which is preventing one spouse from working in this country legally.
But even with all these legal and financial troubles lurking around every corner for same-sex couples throughout the nation, recent changes and challenges to federal policy from the executive and judicial branches are letting bi-national same-sex couples breathe a small sigh of relief.
In February 2011, President Obama took a very rare course of action and announced that the Justice Department would no longer defend DOMA against constitutional challenges. In those rare cases where the President declines to defend a federal law, the House of Representatives can step in. In this case, the House has stepped in and retained outside counsel to defend the law in court. So far, the outside counsel has not been very successful, as federal courts keep agreeing with the Obama administration and striking down DOMA as unconstitutional.
Along with defending federal laws in court, though, the president is also charged with enforcing these laws through various executive agencies. In this area of executive power, too, there is also a glimmer of hope for bi-national same-sex couples, because around the time the Obama administration announced it would not defend DOMA in court, it was also handed another policy setback when Congress declined to pass the Development, Relief and Education for Alien Minors (DREAM) Act, which would have provided permanent residency to certain illegal aliens who grew up in this country and met certain requirements. In June 2012, President Obama announced that his administration was shifting immigration enforcement priorities to essentially relieve the intended beneficiaries of the DREAM Act from deportation. This is keeping in line with the administration’s stated priority of pursuing and deporting immigrants who commit other crimes and pose a real danger to our nation’s security, rather than go after otherwise law-abiding immigrants. Although US Citizen and Immigration Services is still turning away same-sex spousal applications, it is fair to predict that same-sex partners who fit into the latter category of immigrants would also enjoy the same enforcement foot-dragging as seen with the DREAM Act as the constitutional challenge against DOMA goes forward.
DOMA has faced many challenges in federal court on issues relating to one or more of the 1,138 federal marriage benefits, including immigration, bankruptcy, military and veterans’ benefits, federal employee benefits, and federal estate tax for surviving spouses. Massachusetts (where there is marriage equality) has argued that DOMA oversteps the federal government’s limited powers and intrudes upon state authority to define marriage. These cases have produced mixed results, but the most recent federal cases show a trend: district courts are striking down DOMA on the grounds that Section 3, which defines marriage as between “one man and one woman,” violates the equal protection clause of the Fifth Amendment and does not stand up to even rational basis scrutiny. Because of the wide variation in district court rulings, both sides have been pressing the Supreme Court to take up the issue, and we could expect to see the issue addressed in the upcoming term.
While all of this executive and judicial action (or inaction) is providing some reprieve to bi-national same-sex couples, there is still a cloud of uncertainty looming overhead. I do not know if anyone expects DOMA or similar legislation to lead to the eradication of homosexuality or the dissolution of already existing same-sex couples, but it is putting LGBT people through the emotional and economic wringer when it comes to immigration or any of the other 1,137 federal benefits denied to them.
