Guest Blog Post: Geoffrey Heeren on Windsor’s Impact on Immigration Law
Over the next few days, we will feature a guest blog post written by various scholars on the impact of Windsor v. United States on immigration law. Yesterday, Geoff Hoffman of the University of Law Center shared his thoughts on the opinion.
Today, Geoffrey Heeren, Assistant Professor of Law at the Valparaiso University School of Law discusses his views as well.
The timemay come, far in the future, when contracts and arrangements between persons ofthe same sex who abide together will be recognized and enforced under statelaw. . . . But in my opinion, even such a substantial change in the prevailingmores would not reach the point where such relationships would be characterizedas “marriages”. . . . And even when and if that day arrives, two persons of thesame sex, like those before the Court today, will not be thought of as being“spouses” to each other within the meaning of the immigration laws.
Adams v. Howerton, 486 F. Supp. 1119, 1125 (C.D. Cal.1980) aff’d, 673 F.2d 1036 (9th Cir.1982).
I would liketo be among the first to point out that Judge Irving Hill was wrong. Todaysame-sex marriages are recognized in twelve states and the District of Columbia.Moreover, in United States v. Windsor,570 U. S. ____ (2013) the Court held that the federal government is bound torecognize them in allocating federal benefits. This should include the abilityof a US citizen or LPR to petition for a same-sex spouse to have lawful status.
This is not tosay that matters as they stand are entirely clear. In Windsor, the Court struck down Section 3 of the federal Defense ofMarriage Act (DOMA), which defined marriage as being between a man and a woman.But as Justice Scalia pointed out in his dissent, the majority’s rationale wassomewhat opaque. Good arguments could be made that the decision rests on equalprotection, substantive due process, or federalism grounds. Justice Kennedynotably failed to answer the question that was most-contested in the lowercourts: should heightened scrutiny apply to laws that discriminate on the basisof sexual orientation. As much of the majority opinion was devoted to adiscussion of the rights of states as the rights of same-sex spouses. Arguably,by focusing on federalism concerns and the discriminatory animus of legislatorswho passed DOMA, Justice Kennedy’s opinion muddles equal protectionjurisprudence, which is something that may hurt non-citizens in the long term.
Moreover, asJustice Scalia points out in his dissent, people often move from one state toanother, and difficult choice of law questions will arise when persons movefrom a state allowing same-sex marriage to one banning it. This could turn outto a salient point in the immigration context, depending on how DHS decides tomove forward. One option would be for DHS to use the same analysis forevaluating the legality of same-sex marriages that it has in a variety of othercontroversial areas, including marriages that violated anti-miscegenation laws, consanguinityregulations, or prohibitions on polygamy.
The basic rulethat the Board of Immigration Appeals has always applied is that, absent some strongly expressed federal or state public policy, amarriage that was valid where celebratedwill be valid for immigration purposes. SeeTitshaw, supra at 550. Thus, asame-sex marriage celebrated in New York will clearly be valid there, but thereis a question whether DHS will continue to treat it as valid for immigrationpurposes after the couple moves to Alabama, which explicitly refuses to recognizesame-sex marriages. Is Alabama’s prohibition on same-sex marriage a strongly expressedstate public policy? In its briefs in Windsorand other cases, DOJ opined that this sort of policy violates the equalprotection rights of same-sex partners. Given DOJ’s constitutional analysis,DHS should not give full faith and credit to these state “mini-DOMAs.”
There are manyother issues that DHS will have to consider, such as when and how to allowsame-sex fiancés to seek fiancé visas. Given the many barriers that same-sexfiancés face, DHS should be liberal in doing so. LPRs can’t apply for fiancé visas,but opposite sex fiancés at least can usually go back to their country oforigin to get married and then petition for their spouse to come to the US. Mostcountries, however, don’t allow same sex marriage and it will be very difficultfor same-sex partners of LPRs to get a tourist visa to come to the US, unlessthe Department of State waives its normal restrictions on persons entering theUnited States on tourist visas who have “immigrant intent.”
The situation may be even worse for gay and lesbian refugees and asylees.US law recognizes persecution based on sexual orientation as a basis forrefugee status, and one aspect to this persecution may have included theinability of a refugee to marry her same-sex partner. Refugees can ordinarilypetition for their spouses abroad to come to the United States, but gay andlesbian refugees may face serious difficulties in marrying a partner leftbehind in the country of persecution. DHS and DOS may be able to facilitate theentry of same-sex refugee partners to the United States through humanitarianparole, but Congressional action is a better solution.
Congress could allow persons to fileimmigration petitions if they can establish that they are in a committed, long-term partnership but areunable to get married because of restrictions on same sex marriage. Thiswould allow LPRs or refugees to petition for their fiancées who they cannotmarry because their country of origin prohibits same sex marriage. In fact,Senator Leahy proposed an amendment during the Senate Judiciary Committeemarkup of the Senate’s comprehensive immigration reform bill, S. 744, whichwould have done exactly this. Unfortunately, the amendment was not adopted.
Windsorwillnot solve all problems for the bi-national same-sex couples who have struggledto find a home. But it is an important victory that should offer some of thedignity that was denied to Richard Frank Adams and Anthony CorbettSullivan.”