By Robert L. Reeves, Nancy E. Miller & Eric R. Welsh

This week, the U.S. Supreme Court heard oral arguments in two cases involving the rights of same-sex partners and the institution of marriage.  The decisions in these cases, which are anticipated before July, could create landmark precedent in the area of same-sex marriage, and could affect federal rights—including immigration benefits—that have been denied to same-sex partners for years.  If the Supreme Court decides in favor of same-sex marriage, U.S. citizens and permanent residents who are in same-sex marriages may be able to file spousal petitions on behalf of their partners and aliens in same-sex marriages can claim their spouses as “qualifying relatives” for the purpose of immigration applications or in defense against removal from the United States. 

The first of two related cases before the court centers on California’s Proposition 8, an initiative that amended California’s constitution to ban same-sex marriage in California.  Opponents of Proposition 8 claim that the restriction against same-sex marriage violates the U.S. Constitution.  They contend that limiting the definition of marriage to heterosexual couples violates equal protection and due process and takes from same-sex partners a right that had previously been recognized in California.

The Supreme Court could take several different positions in deciding this case.  The Court could uphold Proposition 8, resulting in same-sex marriage continuing to be unlawful in California and other states that currently refuse to recognize same-sex marriages.   It could find that denial of same-sex marital rights is unconstitutional, thereby making same-sex marriage legal across the United States.  Or, it could take a narrow approach, legalizing same-sex marriage in California, but leaving the states to decide on a state-by-state basis whether or not to allow same-sex marriage.

Based on the oral arguments, many legal experts believe that a majority of the Court will vote to invalidate Proposition 8 and legalize same-sex marriage in California.  However, it appears that the justices are hesitant to issue a sweeping decision that would force all states to officiate and recognize same-sex marriages.  More likely, the decision will be confined to California where same-sex marriage will once again be legal in the most populous state in America.

The second (and potentially more impactful) case involves a 1996 federal law called the Defense of Marriage Act (DOMA).  DOMA defines marriage for federal purposes as a union between a man and a woman.  Under DOMA, the U.S. government will not recognize a same-sex marriage, even when the marriage was lawful in the place where the marriage occurred.

In oral arguments, a majority of justices appear to favor striking down DOMA as a matter of federalism, or states’ rights.  Several justices questioned why the federal government should have any role in deciding what constitutes a “marriage,” since that is traditionally a decision left to the states.  Crucially, this appears to be the opinion voiced by Justice Anthony Kennedy, the likely “swing vote” between the Court’s four liberal judges and four conservative judges.  However, many analysts believe that the “states’ rights” argument might compel more conservative justices on the Court to side in favor of striking down DOMA.

The U.S. Citizenship & Immigration Services (“USCIS”) has relied upon DOMA to deny family petitions filed by U.S. citizens and permanent residents for same-sex partners.  USCIS has taken the position that DOMA prevents approval of the petition.  President Obama and Attorney General Eric Holder believe that DOMA is unconstitutional, but have stated that federal agencies will enforce DOMA unless and until the Supreme Court finds the law unconstitutional.  If the Supreme Court strikes down DOMA, it is widely expected that USCIS will approve petitions filed on behalf of same-sex marital partners.

Numerous other immigration benefits would follow if DOMA is stricken.  For example, many waiver applications (including fraud waivers and criminal waivers) and relief applications (such as cancellation of removal) are only available to persons with “qualifying relatives.”  Qualifying relatives are narrowly defined relationships.  In the context of fraud and crime waivers, a qualifying relative is only a “spouse” or a parent.  If the Supreme Court strikes down DOMA, the federal government would be able to recognize same-sex spouses for waiver purposes, and consider hardship to the same-sex spouse just as it currently does for heterosexual couples.

Reeves & Associates is excited and encouraged by these legal developments.  It is not possible to divine the outcome of a Supreme Court case based on oral arguments alone.  Nonetheless, the positions taken by the justices appear to indicate progress towards federal recognition of same-sex marriages.  Such recognition would have a tremendous impact to same-sex partners in immigration matters, and Reeves & Associates will be proud to be at the forefront to help our clients with their immigration matters, regardless of sexuality.