Integrity Legal

12th July 2010

This blog frequently discusses issues that are relevant to those who are in same-sex or LGBT relationships seeking United States immigration benefits for their loved ones overseas. In a posting on the blog Immigration Equality the recently handed down decision in a Massachusetts Court case challenging the Defense of Marriage Act (DOMA) was discussed. The following is a direct quote from the July 9th posting:

Yesterday a Massachusetts federal district court judge sided with the Gay and Lesbian Advocates and Defenders 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 the couple’s state. This is a huge victory and we should all take a moment to celebrate! But, this battle is far from over.

Apparently, this ruling will not have a practical impact in the short term as the Court opted to “stay” the decision until the appeal process is exhausted.   The report went on to analyze the possible outcome should the United States Judicial Branch ultimately find that DOMA is 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.

Many feel that the main issue in this case is that of States’ Rights. Presently, the United States government does not recognize the legality of a same sex marriage even where such a marriage was validly solemnized pursuant to the laws of a sovereign US state. This tension between the Federal and State power is often an issue in matters involving conflicting state and federal regulations. That said, where such conflict has an adverse impact upon individual rights, equal protection under the law, substantive due process, and Federal benefits, then the issue may be ripe for judicial review.

As the Immigration Equality blog accurately noted, this decision does not mark the end of the pursuit for those seeking equal US immigration rights as, at the time of this writing, those seeking a US family visa based upon an LGBT relationship (sometimes referred to as a same sex visa) still cannot obtain visa benefits notwithstanding the recently promulgated decision.

Although a judicially created solution for same sex couples may not be available for a relatively long period of time, the passage of legislation similar to the Uniting American Families Act (UAFA) either within the provisions of a Comprehensive Immigration Reform Bill or as stand alone legislation could create a new family based visa category for “Permanent Partners” of US Citizens or Lawful Permanent Residents.

For those interested in learning more about US Immigration issues for same sex couples in Thai please see: LGBT immigration.


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