Under current US law, LGBT couples are denied a shocking 1,000+ federal benefits. For bi-national couples, perhaps none is more painful than the inability to derive immigration benefits. For more on the impossible choices imposed by immigration law on bi-national same sex couples, please read an earlier blog post.
This week, the US Supreme Court will hear two cases that have the potential to be historic. Because of the significant discretion the Supreme Court exercises in deciding such matters, the word "potential" is critical. The cases could be decided on procedural issues or interpreted very narrowly, which would effect no changes in current immigration laws. However, the Court could also tackle the issues head on by addressing DOMA and the Equal Protection clause. If the Supreme Court backs marriage equality, the decision could mark a historic change not only for bi-national LGBT couples but also for the equality ethos so deeply embedded in the American dream.
The First Case: California's Proposition 8, limiting marriage to unions between a man and a woman
On the 26th of March, 2013, the US Supreme Court will hear Hollingsworth v. Perry, a case on appeal from the US Court of Appeals for the Ninth Circuit which held that California's voter-backed Proposition 8 (amending the State's constitution to limit marriage to unions between a man and a woman) was unconstitutional. This case involves a legal challenge brought forward by several same-sex couples who were denied marriage licenses by county clerks in California.
When the plaintiffs sued the county clerks and several California State officials, an interesting aspect of the case is that the state government agreed with the plaintiffs that Proposition 8 was unconstitutional. Attorney General Brown (now California Governor) stated his belief that Proposition 8 violated the Equal Protection clause of the 14th Amendment to the US Constitution, and then-Governor Arnold Schwarzenegger also declined defending Proposition 8. This placed the proceedings in a strange position since the US judicial system is set up as an adversary system; without an adversary and a dispute, there was no case for the Court to hear. Nonetheless, the groups that helped pass Proposition 8 were allowed to intervene in the case as defendants, essentially stepping into the government's shoes, and it was them who defended the proposition.
There are at least five possible ways in which the US Supreme Court could decide this case, outlined below:
- States limiting marriage to heterosexual marriages do not violate the Constitution. This is fairly self-explanatory and would rely upon the Court's agreement with defendants' arguments that there is a rational basis for limiting marriage to heterosexual couples, such as tradition contentions, the couples' ability to have children (if one ignores infertile heterosexual individuals who are still allowed to marry) and related arguments. It is widely expected that the Court will not take this position.
- The (pro-Proposition 8) challengers lack standing to appeal the case to the US Supreme Court. "Standing" is a complex legal term; a simplified explanation is that a person is required to have sufficient connections to a case and have been harmed or affected by the law before he or she may participate in the case. Here, the State government has refused to defend a law it believes to be unconstitutional. Proposition 8 proponents, who have stepped in the government's shoes in litigating this action, have not suffered any discernible harm from LGBT individuals' ability to get married. However, they have been able to bring the legal challenge thus far because the law assigns to the proponents of a measure such as Proposition 8 the ability to assert the government's interest in preserving the measure. If the Supreme Court finds that the proponents lack standing, its decision would only impact LGBT couples in the State of California who would be allowed to get married.
- California (and only California) has violated the Constitution in granting, and then withdrawing, equal marriage rights to LGBT individuals. When a State grants benefits and then takes them away, its actions are more closely scrutinised by the Court even if there would have been a rational basis to withholding such rights in the first place to same-sex couples. California is the only State in the USA to have allowed gay and lesbian couples to marry and then taken away this right, and therefore this ruling would only affect LGBT marriage rights within the State of California. In fact, this is the ruling handed down by the Court of Appeals, and it would mean that LGBT couples in California would be able to get married.
- Those States which allow same sex partners to enter into "domestic partnerships" conferring upon the partners the same rights and responsibilities as those held by married individuals have violated the Constitution. Known as the "Nine State solution" because nine States, including California, meet the requirements described above, it would entail a finding that there is no legitimate basis upon which to deny LGBT couples the status of "marriage". Such a denial would only be motivated by a desire to treat same sex couples as second class citizens and stigmatise their relationships. If the Supreme Court makes this ruling, the nine States would have to afford equal marriage to all citizens, whether in same or different sex relationships, and LGBT marriage would therefore be permitted in a total of 18 States (the nine states plus the nine States that already permit it).
- Equal protection requires all 50 States to allow same sex couples to marry. The Supreme Court could make this ruling applying either the 'regular' level of scrutiny (finding that there is no rational basis upon which marriage rights can be denied to LGBT couples), or applying the heightened level of scrutiny it is being urged to apply (finding that a heightened level of scrutiny applies to cases such as LGBT discrimination, and that the government's objectives do not meet the elevated standard) or, alternatively, by finding that denial of LGBT marriage rights violates the due process guarantee permitting one to marry the partner of choice absent compelling government interests to the contrary. This would be the most expansive holding and one with the greatest potential of effecting changes to the immigration realm as it pertains to LGBT couples.
The second case: the federal Defence of Marriage Act, limiting marriage to unions between a man and a woman
The following day, on the 27th of March 2013, the Court will hear a legal challenge against section 3 of the Defence of Marriage Act (DOMA) in Windsor v. United States. This case has a much greater potential than Hollingsworth v. Perry to effect immigration law changes for bi-national LGBT couples because the legal challenge is squarely directed against the very law which currently prohibits immigration benefits for same sex couples.
This case stems from the marriage entered into by Edith "Edie" Windsor and Thea Spyer, both New York residents, whose marriage in Canada was recognised by the State of New York as valid. The couple spent 40+ years together. When Spyder died, leaving all her estate to Windsor, the federal government refused to afford Windsor federal tax benefits, instead demanding that she pay $363,000 in inheritance tax. Because of DOMA, Windsor was required to pay federal inheritance tax even though opposite-sex married couples would have been able to claim the estate tax marital deduction and would not have had to pay anything in such circumstances.
The legal challenge seeks to declare DOMA unconstitutional because it violates the Equal Protection clause. Much like the other same sex marriage case heard by the Supreme Court, this case will involve a determination by the Court of whether heightened scrutiny was warranted, a finding the Court would likely need to make in order to invalidate DOMA. Ms Windsor is also seeking reimbursement of the $363,000 she has had to pay in inheritance taxes.
President Obama has already stated the Department of Justice's position that DOMA is unconstitutional. This is because, according to Obama, the level of scrutiny that should be applied to cases of discrimination against LGBT individuals is not the usual 'rational basis' review but, rather, a 'heightened scrutiny' standard, as reflected in Court judgments which indicate that sexual orientation is irrelevant for purposes of legitimate government policy. In a more personal statement, President Obama aptly summarised the heart of the argument: "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well."
If the US Supreme Court finds that DOMA violates the US Constitution, then the most significant hurdle to bi-national same sex couples obtaining US immigration benefits will have been removed. Whilst unable to exactly predict how US immigration laws would change as a result, there is tremendous potential that LGBT couples would finally be able to petition for their loved one to join them in the United States under the existing family-based immigration system just as an individual would petition for their opposite sex spouse.
The American Immigration Law Office will continue monitoring the two cases before the US Supreme Court and posting relevant updates, although the Court will likely not issue its judgment until the summer. The law firm warmly welcomes LGBT couples and their families to the American Immigration Law Office in London and looks forward to assisting you with any US immigration matters.