Integrity Legal

10th Jul 2009

Massachusetts  fired the opening salvo in what appears to be a major battle for same sex immigration rights. The Commonwealth is suing the Federal government of the United States. Specifically repugnant to the Commonwealth of Massachusetts is the so-called Defense of Marriage Act.  The first pillar of the case brought against the USA is based upon the idea that the provisions of the Defense of Marriage Act (DOMA) deny those same sex couples married in the Commonwealth the “essential rights and protections” accorded to different sex couples.

A further, and in my opinion more compelling, argument deals with the issues of state versus federal sovereignty. The Commonwealth of Massachusetts asserts that the United States government does not have the right to dictate to the states about what will and will not constitute marriage. By refusing to acknowledge a valid same-sex marriage legally executed in a state (in this case the Commonwealth of Massachusetts), the Federal government is refusing to provide Federal benefits to married same-sex couples, while providing benefits to married different-sex couples. This denial violates the doctrine of “states’ rights” which contends that the states, not the federal government, are endowed with the inherent right to regulate the citizenry.

Hillary Sorin wrote the following on this issue:

“Five states now legally marry same-sex couples, but these couples are denied the federal protections and programs available to married straight couples. These include income-tax credits, employment and retirement benefits, health insurance coverage, Social Security payments and immigration benefits for spouses of U.S. citizens.”

Of particular interest to readers of this blog is probably the fact that DOMA effectively precludes US Family based visas because the Federal government refuses to recognize a same sex marriage (or an intention to obtain a same sex marriage) within the United States.

If DOMA were to be repealed then it is logical to assume that those same sex bi-national couples who marry in Massachusetts (or any state where same-sex marriage is legal) would be able to obtain a Permanent Resident Visa (CR-1, IR-1) based upon that valid marriage. Further, an unmarried  same sex couple with an intention to travel to the United States for the purpose of marriage could conceivably obtain a K-1 visa if the Defense of Marriage Act was no longer Federal law.

This case will be very interesting to follow because the ramifications on Immigration law will be tremendous as the whole field of US Family Immigration will likely be opened up to those couples previously unable to obtain US Immigration benefits.

(Please note that the author has no intention that reader use this information in place of legal advice. For advice on the law, please contact a licensed attorney. No attorney-client relationship is created between the author and any reader of this article.)

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