Integrity Legal


26th June 2013

In a landmark case, UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., the United States Supreme Court in a 5-4 decision has ruled that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional. For those unfamiliar with this issue, section 3 of DOMA 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 legislation is that up until the Supreme Court handed down this ruling same sex couples have not been able to receive the same federal benefits as different-sex couples. In the case at hand, a widow of a same sex spouse who was legally married and residing in the State of New York (one of 12 States which recognize same sex marriage) was barred from receiving an estate tax refund because the federal government, citing section 3 of DOMA, did not recognize the couple’s marriage. To quote directly from the majority opinion of the Supreme Court:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect…By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.

In order to shed further light upon this decision it is necessary to quote the Fifth Amendment of the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As the majority of the Court held that “DOMA violates basic due process and equal protection principles applicable to the Federal Government” pursuant to the Fifth Amendment it appears that from this point on those same sex couples legally married in a State which recognizes same sex marriage (or possibly in international jurisdictions which legalize same sex marriage as the parties in the Windsor case were actually married in Canada) will receive federal recognition of those marriages and be able to enjoy federal benefits arising from their marital status. The question of interstate recognition of same sex marriage remains a bit murky as there has yet to be a decisive ruling regarding this issue, but the issue of federal recognition of a same sex marriage would appear to be fully resolved.

How Might This Decision Impact The United States Immigration Process?

In the past, same sex bi-national couples were unable to receive immigration benefits such as a Green Card or a K-1 visa (fiance visa) because The Defense of Marriage Act (DOMA) precluded federal recognition of same sex marriage. This preclusion even applied to those same sex bi-national couples who were married in one of the 12 States which recognize same sex marriage (some could argue that there are now 13 States which recognize same sex marriage since the Supreme Court in another decision handed down at roughly the same time as the Windsor decision effectively leaves the door open for California to legalize same sex marriages). As a result of the federal government failing to recognize same sex marriage agencies such as the United States Citizenship and Immigration Service (USCIS) could not grant immigration benefits such as lawful permanent residence (Green Card status) to the same sex spouse of an American Citizen or lawful permanent resident solely based upon the couple’s marrriage. Now, that would appear to no longer be the case, although the Court did not explicitly rule upon the issue of immigration benefits for same sex couples the fact that the Court struck down section 3 of DOMA means that a same sex marriage must be accorded the same federal recognition as a different-sex marriage. Therefore, it is logical to surmise that the Court’s decision should allow same sex couples to undergo adjudication for immigration benefits such as visas and Green Cards in a manner similar to different-sex couples. There are likely to be complications as federal regulators implement policies which comport with the Court’s decision, but one thing is clear: the Windsor decision is a major victory for same sex bi-national couples.

For related information please see: Equal Protection or same sex marriage.

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