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  • Article: The Demise of DOMA and the Rise of Same-Sex Immigration Rights by Christopher Pogue

    The Demise of DOMA and the Rise of Same-Sex Immigration Rights

    by Christopher M. Pogue, Esq.

    With the demise of the Defense of Marriage Act, commonly referred to as DOMA, the path toward same sex or gay spousal immigration rights has been paved. While no statement has yet been released by the USCIS, it is difficult to define any grounds that USCIS might rely on to continue its past ban on recognizing same sex marriages.

    "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity," Justice Anthony Kennedy wrote in the majority opinion. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

    Perhaps most importantly for same sex partners seeking immigration benefits, DOMA was not struck down on 10th Amendment arguments (i.e. making gay marriage a purely State's Rights issue, which was the topic of a previous thought experiment previously published on ILW).

    Rather DOMA was struck down on 5th Amendment grounds. As such there appears no legal wall behind which USCIS may hide its current anti-same sex marriage stance. If a state or nation recognizes same sex marriage, the federal government - USCIS included - may not displace, disparage, or cause injury to same sex married spouses. In other words, regardless of how USCIS reacts to the Supreme Court decision, those that attempt to file cases based on same sex marriage appear to have a very solid case on appeal to federal court.

    Whether a few test cases will be needed to prod USCIS in line with the Supreme Court's decision or whether USCIS will actively reach out to the LGBT community to assist them in filing their petitions remains to be seen.

    About The Author

    Christopher M. Pogue, Esq. is Of Counsel with the Fleischer Law Firm, LLC. His law practice specializes in representing individuals, families, and businesses around the United States and around the world in US immigration matters. Contact: cpogue@immigrate2usa.com and Websites: www.PogueImmigrationLaw.com / www.immigrate2usa.com

    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
    Comments 1 Comment
    1. Christopher M. Pogue's Avatar
      Christopher M. Pogue -
      For those looking for greater significance in the court's decision to decide this case on 5th Amendment grounds vs 10th Amendment (federalism/states rights) grounds, one need look no further than Scalia's Dissent, which points out that much of the majority decision appears to be ready made boilerplate language for 5th Amendment challenges to State Laws that do not recognize same-sex marriage. In fact most of the majority decision reads like a 10th Amendment decision, that inexplicably turns into a 5th Amendment argument with potentially tremendous breadth to challenge state laws that treat same sex couples differently than opposite sex couples.
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