The United States Congress passed the Defense of Marriage Act (DOMA) in 1996 in order to legally define marriage as “”a legal union between one man and one woman as husband and wife.” The law was passed specifically to exclude gay marriage. The original intent of the law was to deny federal benefits to gay couples. One consequence of DOMA is that gay couples seeking to obtain a green card (legal permanent residence) in the United States have been routinely denied.
On Dec 7, 2012 the US Supreme court agreed to hear a case involving the DOMA. In this case, a woman named Edith Windsor was forced to pay hundreds of thousands of dollars ($350,000) in estate taxes (which she would not have been required to pay if her same-sex marriage was recognized by the federal government). While the case is not directly related to same sex spouses who are not US Citizens, if the law in this case is found to be unconstitutional, then the DOMA may be reversed. Consequently, Green Card holders and United States citizens would be able to sponsor their same sex spouses for legal residency.
In the Windsor case, Mrs. Windsor, the plaintiff, argued before the 2nd Circuit Court of Appeals in New York that the DOMA is unconstitutional for several reasons. Her argument was that the law violated the Equal Protection Clause of the U.S. Constitution. The Equal Protection clause of the Constitution guarantees all citizens are to be treated equally under the law. The 2nd circuit determined that due to past discrimination against homosexuals, any laws that specifically target same sex couples must be looked at very carefully. Since the court could not find a compelling reason to justify the discrimination against same sex couples, the court ruled that the law is unconstitutional.
What makes this case particularly interesting is that the US Justice Department, whose job it is to defend the US against lawsuits, declined to defend the DOMA in court. This is a rare move, and it shows that the current White House administration has serious doubts as to the viability of the DOMA. The lack of a Justice Department Attorney at trial to defend the case has certainly weakened the case in favor of the DOMA.
The court has agreed to hear oral arguments in the case this March, and a final ruling is expected in the summer of 2013. If the court strikes down the DOMA, same sex couples married in the US or in foreign country would be entitled to all the same rights as heterosexual couples, including the right to sponsor a spouse for permanent residency.
The information contained in this article does not constitute a legal opinion nor does it serve as replacing a proper individual legal consultation. Any use of this information shall be entirely at the risk of the reader.
This article was written by Dotan Cohen Law Offices, an immigration law firm that handles legal matters related to the United States, Australia, United Kingdom, Canada, and Israel. Our contact details are:
Tel. +1-646-797-5717
e-mail: [email protected]
