On June 26, 2013; the United States Supreme Court (SCOTUS) issued a 5-4 split decision in United States v. Windsor that struck down section 3 of a federal law known as ‘The Defense of Marriage Act’, or DOMA for short. DOMA was a law passed in 1996 and signed into law by President Bill Clinton in response to the Hawaii Supreme Court decision in Baehr V. Miike which was the first court decision to overturn a state ban on same-sex marriage. Legislators sought to restrict the recognition of same-sex marriages to the states in which they were legal. Section 3 of DOMA read as follows:

“Section 3: Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.”

         
In their decision, SCOTUS held this federal definition of ‘marriage’ and ‘spouse’ was unconstitutional because it denied legally married same-sex couples their due process under the Fifth Amendment of the United States Constitution. The case U.S. v. Windsor was brought to the court by Widow Edith Windsor in New York, who was forced to pay hundreds of thousands of dollars to the federal government in estate taxes after the death of her wife, Thea Spyer. Ms. Windsor & Dr. Spyer married in Canada in 2007 after a 40 year engagement. In 2009, Dr. Spyer died from complications of her multiple-sclerosis; and Edith Windsor subsequently was charged $600,000 in estate taxes because the US federal government did NOT recognized her marriage as valid. Ms. Windsor subsequently filed suit which culminated in this landmark US Supreme Court decision. While the case initially focused on whether Ms. Windsor’s marriage must be recognized as valid according to the federal government, it culminated in a decision that positively affected all married same-sex couples in the United States of America.

In effect, the Supreme Court’s decision removed the only bar that legally married same-sex couples faced when applying for any and all federal benefits, such as taxes, social security, healthcare, and immigration. The decision was not narrowly tailored to the plaintiff, Edith Windsor, but broadly found that the US federal government may not constitutionally select which marriages they will and will not recognized, in regards to the laws of the states. Thus, same-sex married couples are now constitutionally entitled to all benefits and privileges that any married couple receives at the federal level. In terms of immigration, this includes:

1. Family based adjustment of status through a US Citizen or legal permanent resident;
2. Derivative beneficiary status on certain immigrant applicants such as EB-1A or EB-5;
3. Follow-to-join benefits for spouses of LPRs in select situations;
4. US citizen spouse may sponsor his or her fiancé/spouse for a K1 or K3 visa;
5. The ability to sponsor the children of foreign spouses/fiancé for K2 visas.

In other words, if the federal benefit is offered to married couples; then that also includes married same-sex couples with no exceptions.

 The court wrote:

“DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency... By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, who’s moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. ... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations.... It forces them to follow a complicated procedure to file their state and federal taxes jointly.... It prohibits them from being buried together in veterans' cemeteries. For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer,  ... with the intent to influence or retaliate against that official. ... Although a "spouse" qualifies as a member of the officer's "immediate family ... DOMA makes this protection inapplicable to same-sex spouses. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”(570 U. S. (2013)(Docket No. 12-307)

      

For more information on sponsoring spouses of U.S. citizens or U.S. Permanent Residents, please click on the following links:

• Same-Sex Marriage & Immigration
• Immigration for Spouses of U.S. Citizens
• Immigration for Spouses of U.S. Permanent Residents
• Frequently Asked Questions regarding Same-Sex Marriages
• The Supreme Court Ruling on DOMA & What it Means for Same-sex Binational Couples