Nine states and the District of Columbia (D.C.) legally recognize same sex marriages. Yet when an immigrant petition is filed for a partner in a same-sex relationship, the petition is still denied by the United States Citizenship and Immigration Services.
Regina entered the United States as an H1B visa holder. In 2004, she married her partner, Jane, in a civil ceremony in San Francisco, California when same sex marriage was still legal. When her visa expired in 2009, her employment was terminated and her authorized stay expired. She decided to stay with Jane, who is a US citizen.
Regina is now undocumented. The US Citizenship and Immigration Services does not recognize their marriage. With the recent hearings conducted by the US Supreme Court, however, Regina is hopeful that her marriage to Jane may soon be recognized and she can receive her green card through her partner’s petition. What are the chances that these aspirations of Regina will become a reality?
Cases on Gay Marriages
For two consecutive days this month, the US Supreme Court heard oral arguments in two cases involving same-sex marriages.
The first case involves the constitutionality of California’s Proposition 8. This case started a few years back when the Mayor of San Francisco started performing same-sex marriages. Immediately, conservative organizations questioned the validity of these marriages by filing test cases in California courts. Eventually, these cases reached the California Supreme Court which declared these same-sex marriages as valid.
These conservative and religious groups, of course, did not want to accept the California Supreme Court’s decision as the final word. Instead, they decided to go directly to the people of California by starting a ballot initiative and asking for their vote to ban same-sex marriages. This ballot initiative became known as Proposition 8 (or, Prop 8). The Prop 8 ballot initiative banning same-sex marriages passed by majority vote.
Hence, we had a Supreme Court of California’s decision declaring same sex marriage as legal and a Prop 8 people’s initiative banning same sex marriage. With these contradictory resolutions, the matter is now with the US Supreme Court for review.
Parties who were denied marriage licenses because of Prop 8 filed test cases in California courts questioning the validity of Prop 8. The simple argument is that “marriage” is a basic civil right and the ban on same-sex marriage is unconstitutional. The Governor of California as well as the Attorney General of California agreed; and, refused to defend the constitutionality of Prop 8 in court. They instead authorized private parties, who were the original proponents of Prop 8, to defend Prop 8 in court. Federal district court, as well as the subsequent federal Court of Appeals case, issued judgment in favor of same-sex marriages.
The hope of the LGBT community, of course, is for the US Supreme Court to issue a ruling that marriage, regardless of the sex of the couple, is a constitutional right applicable to all 50 states. The oral arguments on the first of these 2 same-sex marriage cases were heard on March 26.
The second of the same-sex marriage cases involves the Defense of Marriage Act (DOMA), which was heard on March 27. This case involves a same-sex couple who had been together for more than two decades. This couple got married 2007 in Canada (where same-sex marriage is legal). The couple lives in New York (where same-sex marriage is also legal). One of them died in 2009 and the survivor inherited the property. Under federal law spouses can inherit properties from each other tax-free. The parties in this DOMA, however, faced an inheritance tax bill of $360,000 because federal law does not recognize benefits for same-sex couples.
Similar to the Prop 8 case, this DOMA case was not defended by the executive branch of the US government. President Obama is of the opinion that DOMA is unconstitutional and has refused to defend the DOMA law in court. Instead, the House of Representatives Republicans hired their own lawyer to defend the law. If the Supreme Court declares DOMA unconstitutional it would also spell and end to discrimination against gay married couples.
If either one or both of the two cases before the US Supreme Court results in a favorable judgment for same-sex marriages, then it will have far-reaching consequences—including immigration policy . Under current law, same sex couples like Regina and Jane may not obtain immigration benefits. Benefits accruing to same-sex couples, benefits that opposite-sex couple now merely take for granted as a given, will be enormous. The US Supreme Court will decide on the cases in June 2013 and quite predictably, in analyzing the recent development in these cases, it will not be hard to see the day non-US citizen party in the same-sex relationship may migrate to the United States.
(Tancinco may be reached at law@tancinco.com or at 1-888-930-0808 (US) or (02)8877177 (Manila) or visit her website at www.tancinco.com)