Section 3 of the Defense of Marriage Act reads as follows:

“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.”

The upshot of this provision is that the United States Federal government refuses to recognize same sex marriages even where the marriage was legalized, solemnized, and/or celebrated in a State which explicitly recognizes such unions. Many scholars and experts on the Supreme Court theorize that the Court may issue a narrow opinion in the two cases cited above, but that the Court may also strike down section 3 of DOMA thereby requiring, or so it could be inferred, that the United States Federal goverment recognize such marriages and accord them the same benefits as different sex couples. This would be something of a narrow decision because many feel that section two of the Defense of Marriage Act (DOMA) may not be struck down in these decisions. Section 2 of DOMA reads as follows:

“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

Should the Supreme Court hand down a relatively narrow opinion in these cases and should they strike down only Section 3 of DOMA (which should not necessarily be viewed as a foregone conclusion), then it seems logical to assume that the practical outcome would be that same sex couples could be only accorded benefits arising from their marriage in the State in which the marriage was legalized, and possibly those other States which also recognize such unions; and at the Federal level. States which do not recognize same sex marriage may not be compelled to do so if section two is not struck down.

In the context of United States Immigration: as American immigration benefits, such as US visas, are Federal benefits it seems logical to surmise that if section 3 of the Defense of Marriage Act is repealed, then same sex bi-national couples may become eligible for immigration benefits similar to those of their different-sex counterparts. Therefore, an American citizen who has a same-sex fiance might be able to obtain a K-1 visa if the couple has the intention of getting married in one of those States which allow same-sex marriage. Furthermore, the same-sex spouse of an American Citizen or lawful permanent resident may become eligible to apply for lawful permanent residence as a result of the decision to overturn section 3 of DOMA. This remains speculation at this time as the Supreme Court has yet to hand down their decision and the various agencies tasked with adjudicating immigration matters will likely require an interval of time in order to update relevant regulations so as to comply with a possible Supreme Court decision; but there appears to be at least some hope on the horizon that same sex marriage and the immigration benefits which could be granted as a result of Federal recognition of such unions may become a legal reality.

For related information please see: DOMA or Full Faith and Credit Clause.

SAN FRANCISCO (AP) — A federal judge has a message for those trying to salvage California’s gay marriage ban: Sure, the judge who threw out the measure last year is in a long-term relationship with a man, but he could still be fair to them. Chief U.S. District Court Judge James Ware’s ruling Tuesday rejected arguments that former Chief Judge Vaughn Walker would potentially benefit from declaring the ban unconstitutional…

The administration of this web log encourages readers to click upon the relevant hyperlinks noted above to read this story in detail.

For those unfamiliar with the current plight of the LGBT community in the United States it should be noted that the currently enforced provisions of the so-called “Defense of Marriage Act” (DOMA) preclude same sex couples, including same sex bi-national couples, from acquiring the same legal and/or equitable benefits as their different sex counterparts. This issue arises in the context of American immigration in that same sex married couples, even those married in one of the sovereign American States which allow such unions, cannot obtain American visa benefits. Recently, legislators such as Representative Jerrold Nadler and Representative Mike Honda have introduced legislation such as the Respect for Marriage Act, the Uniting American Families Act, and the Reuniting Families Act which are intended to rectify this discrimination to one degree or another. That stated, it is this blogger’s opinion that this issue may ultimately be resolved by the US Courts. With that in mind, the following was quoted directly from the aforementioned article:

In his 19-page decision – a response to the first attempt in the nation to disqualify a judge based on sexual orientation – Ware had a bigger message. Gay judges, he said, are just like minority and female jurists: They can be impartial, too, even in cases that might affect them. “We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” he wrote. “The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen…

This decision is significant for the LGBT community as it elucidates the notion that one’ sexual orientation is not necessarily a bar to impartial decision making. Although the decision in this case does not go to the heart of the struggle for LGBT equality, it does provide a glimmer of hope for LGBT couples that further positive developments may lie ahead.

For related information please see: Proposition 8 or Full Faith and Credit Clause.

At the center of the dispute is Chief U.S. District Judge Vaughn Walker, who issued the ruling last August declaring Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights.

“We are not suggesting that a gay or lesbian judge could not sit on this case,” attorneys for the backers of Proposition 8 wrote in their motion filed Monday to overturn the landmark ruling. “Simply stated, under governing California law, Chief Judge Walker currently cannot marry his partner, but his decision in this case … would give him a right to do so.”

They claim Walker should have disclosed the relationship while presiding over the case and said if he had any interest in marrying his partner.

The administration of this blog strongly recommends that readers click upon the hyperlinks above to read further from this insightful article.

In the article cited above it was noted that some have argued that the Judge in this case should have recused rather than adjudicating the case. However, not everyone agrees that recusal was called for. Meanwhile, the issue of recusal simultaneously raises the issue of whether one’s sexual orientation is relevant to fulfilling public functions such as acting as an adjudicator. To quote further from the article noted above:

Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail.

They pointed out that while courts have not yet had to wrestle with sexual orientation as grounds for judicial recusal, judges typically have rejected efforts to remove jurists based on personal characteristics such as race, gender, religion or even the contents of their investment portfolios.

“I don’t think this judge had any more duty to disclose his sexual orientation than a Christian or Jewish or Muslim judge has a duty to discuss their religion or a heterosexual judge has his duty to discuss their sexual orientation,” retired Illinois state Judge Raymond McKoski said.

The issue of sexual orientation and legal scrutiny thereof is one which will likely need to be adjudicated by the United States Supreme Court. Recently, the Obama administration clarified its position on this issue through the promulgation of the recent memorandum between Attorney General Eric Holder and the Speaker of the House of Representatives. The administration seems to believe that the issue should be accorded “heightened scrutiny” by the United States Supreme Court. To be clear, this blogger believes that same sex couples’ rights are inalienable natural rights (reserved to the American People pursuant to the 10th Amendment) which cannot be infringed upon by mere governments. That stated, under the current system in the United States, the best method for gaining equal protection under the law for the LGBT community in a practical sense would be through legislative and/or judicial action. However, this blogger truly believes that the best argument in favor of recognition of same sex marriage stems from States’ Rights since multiple sovereign States have either allowed for legal recognition of such unions or actively legalize and/or solemnize same sex marriages. Another argument in favor of full recognition of same sex marriage stems from an Equal Protection analysis. As implied by the Holder memo, some believe that heightened scrutiny should be applied to these cases. This blogger does not disagree with that argument per se, as it does seem as though so-called “heightened scrutiny” or “intermediate scrutiny” might be more appropriate under the circumstances than, say, strict scrutiny. In any case, whatever level of scrutiny is utilized it is this blogger’s opinion that Federal lack of recognition of same sex marriage as well as the current ban in California pursuant to Proposition 8 are both in violation of the Constitution based upon either an analysis of the Full Faith and Credit Clause or the Equal Protection Clause.

In this blogger’s personal opinion, the Judge noted above should not have had to recuse under the circumstances for many of the reasons noted above. That said, this blogger remains convinced that the currently pending appeal of a similar decision in Massachusetts Federal Court is more likely to result in gains for the LGBT community as that case rests upon more sound Constitutional footing (namely, States Rights: the reader is asked to bear in mind that the Framers of the U.S. Constitution believed that the most sovereign power under the U.S. Constitution resides with the American States). Whatever the outcome in either case, the struggle for equal protection of the LGBT community under the law of the United States must continue until the current grievances are redressed.

On the legislative front, it was recently announced that Representative Jerrold Nadler as well as other Federal legislators are currently supporting legislation such as the Respect for Marriage Act and the Uniting American Families Act (UAFA) which would overcome the current legal hurdles placed in the way of LGBT couples by the provisions of the so-called “Defense of Marriage Act” (DOMA). At the time of this writing it remains to be seen whether these bills will be enacted.

For related information please see: US Visa For Same Sex Bi-National Couples.

In a recent Massachusetts Federal Court decision a Judge held that the Federal government’s failure to recognize a duly formalized same sex marriage in Massachusetts was unconstitutional. However, there will not likely be any practical effect of this decision in the near term as that Judge placed a stay on his Judgment pending appeal. As the above quote noted, there will likely be a stay on this decision, at least for immigration purposes, until a higher court decides the outcome of the case on appeal. That said, the following is quoted from a recent press release from UPI:

“SAN FRANCISCO, Aug. 6 (UPI) — Same-sex marriage backers filed court motions Friday urging a judge to allow such marriages in California immediately while his ruling in the case is appealed.

U.S. District Chief Judge Vaughn R. Walker has said he would issue a ruling on the matter after he reviews written arguments submitted by proponents and opponents of same-sex marriage, the Los Angeles Times reported.

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown submitted arguments urging the judge to authorize same-sex marriages during the appeal process. Schwarzenegger noted the state performed about 18,000 same-sex marriages before the practice was banned with the November 2008 voter approval of Proposition 8.

“Government officials can resume issuing such licenses without administrative delay or difficulty,” the governor’s office said in its submission to the court.

Brown, the Democratic nominee for governor in the November election, argued in writing there is “the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid” but he said “these potential burdens are outweighed” by the constitutional rights Walker spoke of in his ruling that Proposition 8 violated the U.S. Constitution.

Lawyers for Proposition 8 backers argued same-sex marriages performed in California before the case is heard by the U.S. Supreme Court would be at risk of instability.”

Although the recent decision may not have an immediate direct impact on LGBT Immigration rights, if the Judge grants same sex couples the right to marry in California while the case is pending appeal it would provide a large number of couples with an opportunity to solemnize a marital relationship.

How this issue will ultimately be resolved remains to be seen. However, this issue is quickly becoming a major focal point for interpretation of legal doctrines such as Federalism, States’ Rights, and Substantive Due Process. Ultimately, all of the issues associated with same sex marriage and Same Sex Visa Benefits may need to be adjudicated by the United States Supreme Court.