WHAT THE DOMA WIN MEANS FOR LGBT BINATIONAL FAMILIES

On July 8, 2010, a Massachusetts federal district court judge sided with the Gay and Lesbian Advocates and Defenders (GLAD) and with the state of Massachusetts and found that it is unconstitutional for the U.S. federal government to refuse to recognize same sex marriages that are validly entered into in Massachusetts. This is a huge victory but the case, and the issue of same sex marriage, are far from resolved.

When the court issues its final judgment, which is expected any day, it will be automatically “stayed” (or delayed from taking effect) for fourteen days. It is likely that during this two-week period the Department of Justice will ask, and be granted, a longer term stay until all potential appeals are completed.

Because this is an important case politically and constitutionally, it will almost certainly be appealed. The next step will be an appeal to the First Circuit Court of Appeals, and from there the case will inevitably go to the U.S. Supreme Court. The ruling by the district court judge will be “stayed” during these appeals, meaning that until the Supreme Court eventually makes a decision, DOMA will remain in effect, even in Massachusetts.

Frequently Asked Questions

Why would the Obama administration appeal this ruling?

Regardless of the personal beliefs of the president (which are not clear here anyway), the president and attorney general are usually obligated to defend legislation that has been duly enacted by Congress. (For a good explanation of why it would be a bad precedent not to appeal, read former Assistant Attorney General Robert Raben’s explanation here.)

What happens to binational couples if the Supreme Court finds DOMA unconstitutional?

If, eventually, the Supreme Court upholds the ruling that DOMA is unconstitutional, same sex couples that are validly married, would be able to receive federal benefits, including immigration, based on their marriage. Basically, this would mean that binational couples who live in the handful of states that allow same sex marriage could get immigration benefits, and couples who live in states with mini-DOMAs could not. This already the legal landscape for couples where one spouse is transgender — those who live in states with good laws regarding trans marriage recognition can get immigration benefits, and those who live in states that have bad laws on these issues cannot.

Should binational couples race to Massachusetts to marry and file immigration benefits now, before an appeal is filed? (Is there an open window that will soon close as happened with same sex marriage in California?)

Unfortunately, the window is not currently open. Because the judge stayed his decision (which is common in this type of case), it cannot take effect for 14 days. Assuming the case is appealed during that time frame, then the stay will probably remain in effect and the law will not be overturned unless and until the next appeal (and the Supreme Court appeal) are favorable.

Also, it generally takes several months from the date the immigration papers are filed until a couple gets a “green card interview.” The ruling will almost certainly be stayed by the time the couple gets to an interview, which would mean the immigration officer could not grant the green card.

Is there any reason for a binational couple that’s married in Massachusetts not to file for a green card now?

Yes, if the foreign partner is not in lawful status, he or she risks being placed in removal (deportation) proceedings by filing immigration papers. If the foreign partner is in the U.S. on a tourist visa or student visa (or hopes to apply for one of these visas in the future) filing for a green card will be taken as evidence of “immigrant intent” and will likely lead to the denial of future short-term visas.

What happens if, unexpectedly, the Obama administration does not appeal the judge’s decision?

Again, this seems highly unlikely, but if the administration did not appeal, then lesbian and gay couples who are married in Massachusetts should be able to apply for marriage-based immigration benefits the same way that opposite sex couples can.

If GLAD won this case, shouldn’t we all be filing federal court challenges?

No, GLAD won (so far) because they have a very carefully planned strategy. We talked with GLAD about whether or not to include immigration plaintiffs in the challenge and, in the end, decided not t because courts rarely find constitutional violations in the immigration context. As tremendous a victory as this is for all LGBT people, bringing less thought out cases will bring tremendous setbacks.

Where do we go from here?

We must continue to pursue rights for binational couples on all fronts. It will probably take several years for this DOMA challenge to reach the Supreme Court, and no one can predict what the outcome will be. Certainly a victory in the Supreme Court striking down the federal recognition section of DOMA would be a huge victory for binational couples (at least giving them the option to move to LGBT friendly states to pursue immigration benefits.) Meanwhile, we must continue to push for passage of an LGBT inclusive CIR and for passage of the UAFA. (You can take action now at the Immigration Equality Action Fund site.)