Guest Blog Post: Juliet Stumpf on Windsor’s Impact on Immigration Law

Our fourth blog post on the impact of Windsor v. United States on immigration law is written by Professor Juliet Stumpf of Lewis & Clark Law School. (Here are the first (Geoff Hoffman, University of Houston Law Center), second (Geoffrey Heeren, Valparaiso Law School), and third (mine) posts).

“There is no better example of the immediate impact of United States v. Windsor than the granting of permanent residence to a Columbianimmigrant based on marriage to his U.S. citizen husband less than an hour afterthe ruling came down, while the couple were on their way to the deportationhearing.  Janet Napolitano’s announcement on the heels of the ruling’sissuance that the Administration would implement the decision “so that all married couples will be treatedequally and fairly in the administration of our immigration laws” confirmsthe significance of the case for marriage-related immigrationdeterminations. In previous posts, Geoff Hoffman and Geoffrey Heeren have ably addressedthe direct implications for immigration law of Windsor’s central holding striking down section 3 of the Defense ofMarriage Act.  

Reading Justice Kennedy’smajority opinion led me to wonder whether the case will have broader implicationsfor immigration law beyond marriage-related immigration issues.  It’s not an immigration case.  But Windsorpushes doctrinal buttons that appear routinely in immigration cases: equalprotection, federalism, substantive due process.  Windsorhas something to say about the project in which many immigration scholars andadvocates have been engaged: bringing immigration law into the mainstream oflegal analysis and changing negative social perceptions of noncitizens.  The Supreme Court has historically treated immigration law as an exceptional area of law, as so closely connectedwith foreign policy and national security that it can have only an attenuatedlink to constitutional limitations on government power over noncitizens.  Is immigration law so exceptional that Windsor’s revival of equal protectionanalysis will remain inaccessibly distant? 

Justice Kennedy’s majority opinion itself hints at immigrationexceptionalism when explaining the limits of the doctrinal implications of Windsor. Describing the federal government’s power to make rules about marriagedespite the states’ traditional dominance in that area, the opinion used the immigrationmarriage fraud statute as an illustration of the breadth of federal power “whenthe Federal Government acts in the exercise of its own proper authority.” Yetrecent cases like Padilla v. Kentucky point in thedirection of treating immigration law like neighboring legal doctrines.  Padillasketched a growing intersection between immigration and criminal law when holdingthat a criminal defendant is entitled to know the immigration consequences of aplea before agreeing to it. 

Windsor’s passing referenceto immigration law doesn’t exhaust its implications.  Time will tell, but I suspect that the impactof the case will be most far-reaching in changing the content of theconversations about immigration law that people are having in courtrooms, inCongress, and in casual discussions.  Iimagine the themes in Windsor thatseemed most persuasive to the Justices influencing several kinds of arguments thatcrop up in immigration law: in equality-based arguments when U.S. citizen childrenare involved, in federalism arguments when states and localities make efforts tointegrate undocumented noncitizens, and in arguments about immigrationreform.  I’ll take up just one of these:the theme of consequences to children.

Windsor’s analysis of the “meaning of equality” surveys the ways that second-classstatus for same-sex parents harms their children.  Windsoris a tax case, not a family law case, but concern about the impact of thefederal law on the children of the affected spouses runs throughout JusticeKennedy’s opinion.  The harms heidentifies are emotional— humiliation, troubled understandings about thecloseness of the family and its relationship with the surrounding community—andalso financial, affecting health insurance and other benefits.  The effect of his discussion is to broadenthe perimeters of equal protection to include not just the plaintiffs but thosemost closely connected to them.  

Immigration law is replete with situations in which disparate treatmentof noncitizen parents causes harm to children. Immigration law creates second-tier families by virtue of the lines itdraws between those authorized to be present and those who are not.  Mixed-status families in which some familymembers are lawfully present in the United States and others are not carry thepotential for family separation through the deportation of those withoutauthorization.  Children also experience lessobvious harms from the anxiety of keeping their family status secret, fromtheir awareness of the difference in status, from uncertainty about the future.

Windsor is not directauthority for an equal protection challenge to the immigration laws wheneverthey create harms to children.  Its overtpreoccupation with the effects on children of unequal treatment of theirparents, however, may bolster consequentialist arguments when equal protectionthemes arise in immigration law.  TheAdministration’s adoption of Deferred Action for Childhood Arrivals (DACA)which granted a measure of status to noncitizens who arrived in the UnitedStates as children is an example of equality-themed advocacy combined withrecognition of harm to children.  Similarly,when states like Alabama seek to impose immigration status checks of parents ofschoolchildren, the harm to children was the paramount basis for legalchallenge.  Less obvious are arrest,deportation, and detention policies or practices that overlook the consequencesfor children.  Equality-based concernsalready pervade these contexts.  Windsor’s contribution is to elevateconcern about the collateral impacts on children to a constitutionalconsideration.

Same-sex marriage advocacy serves as a model for how to transform ashunned and silenced class into lovers, parents, sons and daughters—people thatstate legislators, voters, and Supreme Court justices could relate to and fitinto pre-existing legal frameworks.  Certainlysame-sex marriage and immigration are very different issues.  Windsor’smost lasting contribution may be to affirm the ongoing project of re-castingpopular understandings of a discrete group in a way that can translate into law.”

Thanks Juliet!

RCV