Last month, as I read Justice Scalia’s scathing dissent in Arizona v United States, I wondered what he’ll be thinking when he hears oral argument in the challenge to the Defense of Marriage Act (DOMA). The premise of Scalia’s dissent was that states have the right to control their borders. It seems logical then that Scalia, and those who claim to cherish state sovereignty, would likewise conclude that the regulation of marriage is also a matter appropriately left to the states. Why then is it that when it comes to immigration benefits for same-sex couples, state laws which recognize same-sex marriage are resoundingly trumped by the federal law which does not?
The answer is DOMA and its infamous limitation of marriage to unions between “one man and one woman” which puts family-based immigration benefits – such as green card sponsorship – beyond the reach of same-sex couples.
To be sure, the Obama Administration has made clear its support of same-sex marriage. This past May the President gave his public endorsement, explaining that he “had hesitated on gay marriage in part because [he] thought that civil unions would be sufficient.” His views continued to evolve, he said, because marriage “invokes very powerful traditions and religious beliefs.”
Yet despite the Administration’s evolution toward support for same-sex marriage, including Attorney General Eric Holder’s decision not to defend DOMA in litigation, American families in same-sex marriages continue to receive unequal treatment under our archaic immigration laws causing needless suffering and fear of separation.
Last week Jane DeLeon, an immigrant from the Philippines, challenged the constitutionality of DOMA as applied to deny immigration family benefits. In 2008 DeLeon married her long time US citizen partner. She is eligible for an employment-based immigrant visa, but requires a waiver due to a previous immigration violation. The waiver is available to immigrants such as DeLeon where the denial of her lawful permanent residency would cause extreme hardship to her US citizen spouse. In DeLeon’s case the waiver was denied solely because she is married to a woman even though, under state law, the woman is her wife.
Due to our broken immigration system a same-sex marriage recognized under state law means nothing. Same-sex couples remain at the mercy of an antiquated and functionally mean spirited statute and they will so remain at least until the Supreme Court addresses the constitutionality of DOMA.
On the Spanish program “Aqui y Ahora” recently, First Lady Michelle Obama said, “There is nothing more critical than keeping families together.” Yet how many more American families will be torn apart before the sanctity of same-sex marriage is no longer sullied by DOMA and its impact on our immigration laws?