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DOMA and Gay Immigration



“A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” – Chief Judge Dennis Jacobs, United States Second Circuit Court of Appeals, Windsor v. U.S.


Pro and anti-Proposition 8 protesters rally in...

Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall as the California Supreme Court holds a session in the to determine the definition of marriage (Strauss v. Horton cases). (Photo credit: Wikipedia)


Many are heralding the Supreme Court decision striking down DOMA, Windsor v. U.S., as a watershed moment for same-sex couples seeking immigration benefits. Because the Windsor decision is so fresh, and because the decision may have striking implications for the gay immigrant community, MIA provides this tutorial of the Windsor decision to illuminate the background, meaning, and effect on same-sex immigration.


You may be asking the following questions:


What is DOMA?


What is same sex marriage law?


What is the law on gay marriage?


What are gay marriage rights?


What are arguments for gay marriage?


How does DOMA affect gay immigration?


This article is designed to provide a tutorial of the DOMA decision for same-sex couples hoping for federal immigration benefits.






What is DOMA?


In 1996, as some states began to consider same-sex marriage, Congress enacted the Defense of Marriage Act (“DOMA”).


The entire DOMA is less than 350 words, and reads in pertinent part:


An Act to define and protect the institution of marriage.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,




This Act may be cited as the “Defense of Marriage Act”.




(a) In General. The United States Code is amended by adding the following:


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.”




(a) In General. The United States Code is amended by adding at the following:  `


Definition of “marriage” and “spouse”: 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. Approved September 21, 1996.




As you can see, DOMA contains to operative sections. Section 2 allows states to refuse to recognize same-sex marriages that occurred in other states. For example, where Canada, New York, Massachusetts, or Vermont may recognize same-sex marriage, North Dakota may not. If a same-sex couple gets married in Vermont, North Dakota does not have to recognize that marriage in North Dakota, under Section 2 of DOMA. Section 2 remains intact today.


Section 3 amends the Dictionary Act to provide a federal definition of “marriage” and “spouse.” This section 3 does not prohibit the states from making laws that recognize same-sex marriages or providing state benefits to same-sex couples. However, Section 3 does prohibit same-sex couples to collect federal benefits provided to couples. This is the part of DOMA that is no longer in effect.




Why does DOMA matter?


DOMA matters both in principle and in practicality. In principle, DOMA plays a role in the debate as to whether we, as a society, should recognize the legitimacy and propriety of homosexuality in general, and whether we, as a society, should treat gay individuals and couples as equals.


English: Another version of the same-sex marri...

English: Another version of the same-sex marriage map. (Photo credit: Wikipedia)


In practicality, DOMA either provides or removes federal government benefits to same-sex couples. Keep in mind the difference between state government benefits and federal government benefits.


For example, Florida provides these state benefits: Florida Food Assistance Program (food stamps), Florida KidCare (low-cost health insurance for kids), Florida Low-income Home Energy Assistance (home heating and cooling), Florida Medicaid, Florida unemployment pay, Florida home weatherization, etc. Florida, as a state, also provides a homestead protection to spouses, restraining a homeowner from selling or devising a house without the approval of his or her spouse, and providing property tax breaks. Under DOMA, Florida could make law to extend these benefits to spouses in same-sex couples, particularly the homestead exceptions.


Federal benefits are different, and include social security (surviving spouses receive federal social security and support), tax breaks (there are nearly 200 federal tax provisions that account for marital status, including for estate and retirement money), family and medical leave (guarantees leave from work to care for spouses), government employee benefits for spouses, COBRA health care coverage for former employees, and immigration (almost 75% of all green cards or immigrant visas issued are granted to family members of permanent residents). Under DOMA, the federal government could not extend any of these benefits to spouses in same-sex couples.




Before DOMA: Baker v. Nelson


The major case to come before the Supreme Court on the issue of gay marriage was Baker v. Nelson, back in 1972. In Baker, somebody challenged the legality of a Minnesota state law that denied a marriage license to a same-sex couple. The denied couple brought a lawsuit (an action) against the state of Minnesota, arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” The Supreme Court ruled that the use of the traditional (man and woman) definition of marriage by a state, in a state law, for that state’s own regulation of marriage status did not violate the United States Constitution. The distinctions between the Minnesota law in Baker and the federal law in DOMA are that (1) the government making the law is different (Minnesota state congress vs. U.S. federal congress); (2) the law works in different ways (Minnesota law precluded Minnesota government from issuing a same-sex marriage license, DOMA redefines the meaning of “spouse” and “marriage” for over 1,000 different federal laws on various issues, including all federal benefits); (3) the law effects a different number of people (Minnesota law effected only people living in Minnesota vs. DOMA effected the entire country); and (4) the laws were enacted at different times (Minnesota enacted before 1970 vs. DOMA enacted in 1996).




Marriage Day

Marriage Day (Photo credit: Fikra)


Before DOMA: Baehr v. Lewin (Baehr v. Miike)


Baehr was a lawsuit filed in 1990 in which three same-sex couples argued that Hawaii’s law prohibiting same-sex marriage violated the Hawaii state constitution. The couples applying to Hawaii’s Department of Health for a marriage license met all of Hawaii’s requirements to marry except that they were same-sex couples. Hawaii’s Attorney General advised the Hawaii Department of Health that only different-sex couples had a fundamental right to marry, and so the Hawaii Department of Health denied a marriage license to these same-sex couples. When the same-sex couples’ lawsuit reached the Hawaii Supreme Court, that court decided that denying a marriage license to same-sex couples was discrimination that required a strictly-scrutinized justification, meaning the Hawaii government had to prove that the discrimination furthered “compelling state interests and was narrowly drawn to avoid unnecessary abridgements of constitutional rights.”


The Baehr case had an enormous impact. Primarily, it scared many in the U.S. federal congress. While drafting DOMA, the U.S. federal congress said that DOMA was “a response to a very particular development in the State of Hawaii. The state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.”




Why did the U.S. Congress enact DOMA in 1996?


One obvious justification is fear, as can be seen in the U.S. federal congress comments on the Baehr case, above. The U.S. Congress also provided several justifications for enacting DOMA to permanently define “marriage” and “spouse” to exclude same-sex couples on a federal, countrywide level. Those justifications were: (1) defending and nurturing the traditional institution of marriage; (2) promoting heterosexuality; (3) encouraging responsible procreation and childrearing; (4) preserving scarce government resources; and (5) defending traditional notions of morality.



Doma (Photo credit: Wikipedia)


Keep in mind that a New York federal court fully analyzed “every conceivable basis which might support [DOMA],” and found that these justifications were absolutely irrational. See Windsor v. U.S., 833 F.Supp. 2d 394, 403–06 (S.D. N.Y., June 6, 2012).




Who challenged the legality and constitutionality of DOMA?


Edie Windsor, an 84-year-old woman residing in the state of New York, challenged the constitutionality of DOMA. Her personal conflict with the provisions of the DOMA law came out of her relationship with another woman, Thea Spyer, who she met in 1963 in New York City. Windsor and Spyer began a committed relationship. They registered as domestic partners in New York in 1993, and married in Canada in 2007. Because of DOMA’s definition of “marriage” and “spouse,” Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law.




Why did Edie Windsor challenge DOMA?


When Windsor’s partner, Thea Spyer, died in 2009, Spyer left all of her possessions and money (her estate) to Windsor.


Often, recipients of an estate must pay federal taxes on the money that they inherit. However, if a couple is married and one spouse dies, the surviving spouse doesn’t have to pay taxes on the estate until he or she also dies. This is called the marital tax deduction under federal law. Of course, because Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law, Windsor could not claim this marital deduction under federal law.


Because Windsor was not eligible for a marital tax deduction under DOMA, she had to pay $363,053 in taxes to the U.S. government.



Marriage (Photo credit: Lel4nd)




How did Edie Windsor challenge DOMA? – the 5th Amendment


Edie Windsor sued the United States of America for a refund of the taxes she paid. In order to get a refund, she argued that she was improperly denied recognition as “spouse” of Thea Spyer. In order to prove that she was improperly denied recognition, Windsor argued that DOMA was an invalid law. To prove that DOMA was invalid, Windsor said that it contradicted the 5th Amendment of the U.S. Constitution, which states:


English: United States Supreme Court building ...

English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)


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.


U.S. Courts have interpreted the statement that “No person shall . . . be deprived of . . . property, without due process of law” to mean that all people should get equal protection under the laws. Thus, Windsor argued, the 5th Amendment requires that she and Spyer be given equal protection as all other married couples in the U.S. If DOMA did not recognize their marriage simply because they were both women, then DOMA did not give them the equal protection afforded to same-sex couples, as required by the 5th Amendment.


Said in the reverse order, Windsor argued:


Married couples normally get tax deductions > DOMA prohibits some married couples from getting tax deductions (i.e. discrimination) > prohibiting only some couples from tax deductions is unequal discrimination > the 5th Amendment requires equality > thus, DOMA is unenforceable under the 5th Amendment > DOMA cannot prohibit federal law from recognizing my marriage > I should have gotten a marital deduction > the U.S. government must pay back my $363,053 in taxes.




What did Windsor have to prove to win?


Windsor had to prove that the discrimination in DOMA was not substantially related to an important government objective. In other words, she had to show that the U.S. government did not have some important goal that it was trying to further that required discrimination against same-sex couples.




Why did the U.S. government say that discrimination of same-sex couples was necessary?


As discussed above, the U.S. governments argued that it was necessary to discriminate against same-sex couples for the following five reasons:


(1) to defend and nurture the traditional institution of marriage; (2) to promote heterosexuality; (3) to encourage responsible procreation and childrearing; (4) to preserve scarce government resources; and (5) to defend traditional notions of morality.




What did the U.S. Supreme Court say about Windsor’s arguments?


U.S. Supreme Court, 1998.

U.S. Supreme Court, 1998. (Photo credit: Wikipedia)


The Court pointed out that:


(1) a government cannot punish the private, consensual sexual intimacy between two adult persons, as that is simply not the role of the U.S. government;


(2) the federal government rarely involved itself in legal issues regarding family, as family law is traditionally determined by the local governments;


(3) the discriminatory provisions of DOMA placed a stigma upon all people who had entered into same-sex marriages made lawful by the local governments;


(4) DOMA’s discrimination appeared to be a bare desire to harm a politically unpopular group.


In conclusion, the U.S. Supreme Court stated: “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Thus, DOMA is unconstitutional and unenforceable.


In essence, Windsor won, and the U.S. government had to repay Windsor the $363,053 in taxes.


"Lesbian" wedding mock-cake at the R...

“Lesbian” wedding mock-cake at the Roma Gay Pride in 2008. Picture by Stefano Bolognini, June 7 2008. (Photo credit: Wikipedia)




What does this mean for immigration?


Because DOMA is unenforceable, each state gets to determine whether it recognizes same-sex marriages. If a state recognizes the same-sex marriage, then the federal government must recognize that marriage as a valid marriage, and those spouses as entitled to federal benefits for married couples—including immigration benefits.


This means that if an American woman marries a woman from Mexico, the Mexican woman is eligible for a spouse’s derivative work visa or sponsorship for a marriage-based green card. A U.S. citizen can now marry his or her same-sex partner and apply for naturalization proceedings. A U.S. citizen may even marry his or her same-sex partner and petition for naturalization, even if they don’t live in a state that recognizes gay marriage.


The takeaway is that homosexuality as a particular social group providing for international and national protection is taking hold. The idea has taken root, and the seas are changing. It will now be more interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward.


Until next time. Stay tuned.


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P.O. Box 191057
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Tel: 786-566-1969.


For more answers to your questions, contact abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.


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