Document Type

Article

Publication Date

2013

Abstract

As U.S. states and foreign nations began recognizing same-sex marriages over the last dozen years, the anti-gay definitions of "marriage" and "spouse" in Section 3 of the Defense of Marriage Act ("DOMA'') rendered those marriages invisible for immigration purposes. Thousands of U.S. citizens were left with a cruel choice between country and family: Remain alone in the United States or start anew with spouses and stepchildren abroad. Other couples did not qualify to emigrate anywhere together, leaving them no choice at all. DOMA also devastated children. Not only might they be separated from one parent, but their own immigration or even citizenship status often hinged on definitions of terms like "stepchild'' and "born in wedlock.

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of families. Yet Windsor was not an immigration case, and the Court's opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized "civil union" or "registered partnership"? How about children born to spouses or registered partners in same-sex couples: will they be recognized as "born in wedlock" for immigration purposes?

The Obama administration appears to have answered the first question, concluding that same-sex spouses who celebrate their marriage in a jurisdiction where it is valid are married for immigration purposes, even if they reside in a state where it is not valid. In the context of immigration law, this uniform place-of­celebration rule rests on firm legal, precedential, and policy ground. As described below, the last two questions have not been resolved.

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