United States v. Windsor (570 U.S. ____2013)

United State citizens can now petition for their foreign born same-sex spouse!!!

On June 26, 2013, the United States Supreme Court (USSC) made a monumental decision regarding same-sex marriage.  Same-sex couples who had been seeing their spouses deported without recourse or forced to live in the shadows of being undocumented can now move forward and finally live without fear that they will be torn apart from loved ones.

By way of brief background, Section 3 of Defense of Marriage Act (DOMA) was challenged in the lower courts by a widow who was forced to pay over $363,000 in Federal estate tax after her same-sex spouse passed away.  If her spouse had been a man, she would not have been forced to pay this tax.  She sought a refund. The U.S. government, citing DOMA denied her request.  Section 3 (§3) provided a federal definition of “marriage” and “spouse.”  The ramifications of §3 defining “marriage” as between “one man and one woman”  and a “spouse” being “only of the opposite sex” resulted in the denial of more than 1,000 federal benefits to same-sex spouses event they were legally defined as married in their home states.

The case made its way up the lower courts.  The 2nd Circuit ruled in the widow’s favor, stating that Section 3 (§3) of DOMA was unconstitutional.  Subsequent to this decision, the Attorney General stated that the Executive Branch was not going to defend DOMA before the Court.  The Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, intervened to defend its constitutionally.

Justice Kennedy writing on behalf of the Court’s majority, struck down §3 of DOMA.  It is very important to note that only Section 3 of DOMA was challenged.  Therefore the ruling is limited to this Section.  Another part of the Act, Section 2, was not at issue before the USSC.

Individual states, under Section 2, retain the power to make laws regarding marriage and who they recognize as legally married.  Judicial precedent is clear that laws relating to marriage, domestic, and family life are strictly in the purvey of individual states.  For this reason, it is inaccurate to say that the Court “struck down” DOMA in its entirety.

Subsequent to the Court’s repeal of Section 3, same-sex spouses are now able to obtain Federal benefits but only if they were married and currently live in any of the 13 states, Washington D.C. or the five specific Native American tribes that presently recognize same-sex marriage. New Jersey is not one of these states.

However limited, the decision still affects thousands of people who can now apply for and receive more than 1,000 Federal benefits that were previously unavailable.  Immigration law is exclusively deemed to be governed under Federal Law. As a result of the Court’s decision, U.S. citizens can now petition for your foreign born same-sex spouse!!  It must be stressed that you can only petition for your spouse if you were married and presently reside in one of the areas states, tribe or Washington D.C., that grant same-sex marriage.

It is unclear right now whether a couple who gets married in one of these 13 states but then moves to a place where only civil unions are available will be afforded the same benefits.  The likely answer is no. However because this issue has not yet been risen in the Courts, a final resolution to this question remains outstanding.

Hopefully the remaining states that do not currently recognize same-sex marriage will take note of the USSC’s opinion that treating same-sex couples as different from heterosexual couples is “unjust” and violates the Equal Protection of the United States Constitution.  Patience is essential because this recognition must be done on a state-by-state basis.

The thirteen states that recognize same-sex marriages are:

1.    Massachusetts
2.    New York
3.    California
4.    Maine
5.    Rhode Island
6.    Iowa
7.    Maryland
8.    District of Columbia (Washington D.C.)
9.    Washington
10.    Vermont
11.    Connecticut
12.    Delaware
13.    Minnesota

The full decision can be read here: