Defense of Marriage Act Challenge Filed – What Does it Mean for Binational Couples?

Immigration Equality congratulates Gay & Lesbian Advocates & Defenders (GLAD) on the filing of a challenge to Section 3 of the Defense of Marriage Act (DOMA).

What is DOMA Section 3?

The “Defense of Marriage Act” was passed by Congress in 1996 and signed into law by then-President Bill Clinton. GLAD’s lawsuit challenges only Section 3 of the law, which excludes legally married same-sex couples from any federal law or program in which marriage is a factor.

There are at least 1,138 federal rights that depend on marriage recognition – including the right to sponsor a life partner for immigration benefits.

Is immigration law part of the challenge?

No. Immigration Equality and GLAD consulted on whether to include immigration as an element of the suit, and jointly decided that the case would be stronger without it. Congress has virtually limitless power to make decisions about who can immigrate to the U.S., and the courts almost always defer to Congress on immigration-related matters.

If they win the case, will that help binational couples?

Yes. If the suit is successful in striking down Section 3 of DOMA, that would be very good news for binational couples who are married, or could be married.

So should we get married?

Any binational couple considering marriage should consult with an immigration attorney. The answer depends on the immigration status of the foreign national partner. It is important to understand that every time a non-citizen seeks to enter the U.S. on a temporary visa – which is almost everything other than a “green card” – he or she must prove that they intend to return permanently to their own country. Marriage to a U.S. citizen, if disclosed to an Immigration official, may be taken as proof that the non-citizen intends to remain in the U.S. permanently. This will make it difficult, if not impossible, to get a visa or gain entrance to the U.S. If the foreign national partner is undocumented and you attempt to file a “green card” application for her based on marriage, the application will be denied and the partner will be placed in removal (deportation) proceedings.

What happens next? When will there be a decision?

GLAD filed the case on March 3, 2009 in Federal District Court in Boston. The case deals with questions of equal protection and the role of the states versus the federal government. Those questions are ultimately addressed by the Supreme Court, and it is likely that the Court will see this as an important case if, indeed, it is brought to them at some point in the future. That may not happen, but if it does, it will certainly not be decided by the Supreme Court any earlier than 2013.

We’re a binational couple – what should we do in the meanwhile?

The Uniting American Families Act is a bill that would change the immigration law to allow gay and lesbian Americans to sponsor their partners for green cards. In a new administration and a new Congress, the prospects for that bill look better than ever. It is imperative that you write and call your Congresspeople and ask them to cosponsor the Uniting American Families Act, and then have your family and friends do the same.

Immigration Equality is the only national organization devoted to binational couples – and that’s why we are fighting for immigration reform on multiple fronts. Binational couples desperately need a solution, which is why Immigration Equality is working with every branch of government – legislative, judicial, and executive – to end this cruel, purposeless discrimination.