A Post-DOMA America: How Did We Get Here?

by Matthew Bray

The June 2013 Supreme Court decision United States v. Windsor, overturning a key provision of the Defense of Marriage Act (DOMA), is of historic importance for same-sex married couples in the United States and is undoubtedly a major legal victory for the American LGBT rights movement. With Section 3 of DOMA struck down, we have seen rapid change in the legal treatment of married same-sex couples, including under immigration law. In this (somewhat academic and lawyerly) post I look at how DOMA came to be, examine the Windsor decision in detail, and consider its broader impact. In a separate future post my colleague Liz Brettschneider will answer some practical questions for couples whose immigration cases are affected by the Windsor decision.

Background of DOMA
In 1990 three same-sex Hawaiian couples applied for marriage licenses and were denied. They then filed a lawsuit claiming that the denial violated their constitutional rights. Although the Hawaii Supreme Court ultimately dismissed the case in Baehr v. Mike, it did note that discrimination on the basis of sex violated equal protection rights unless the state could prove a compelling interest in preventing same-sex marriage. This finding prompted a wave of fear among opponents of same-sex marriage. If Hawaii allowed same-sex marriage to be legal, these opponents reasoned, other states would follow, or be compelled to recognize out-of-state same-sex marriages under the Full Faith and Credit Clause of the US Constitution. Introduced by Representatives Bob Barr (R-Ga.) and Don Nickles (R-Okla), the DOMA bill became law in 1996. Section 2 and 3 of the Law stated:

Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Unlike Section 2--which granted the states the right not to recognize otherwise valid out-of-state same-sex marriages--Section 3 forbade the federal government from recognizing such marriages for federal purposes, including for spousal immigration benefits. Because of DOMA, United States Citizenship and Immigration Services (USCIS) denied Green Card and other immigration applications of same-sex spouses of US citizens, even if the couples were lawfully married in a state or country that recognized their marriage. Since 2000, there have been congressional efforts to amend the Immigration and Nationality Act (INA) to allow equal treatment of same-sex relationships, including the Permanent Partners Immigration Act, later named the Uniting American Families Act. While Congress has not passed these bills, the federal courts have heard constitutional challenges to Section 3.

Challenges to DOMA
After years of political and legal advocacy in New England led to the legalization of same-sex marriage in Massachusetts, Connecticut, Vermont, and New Hampshire, attorneys from Gay and Lesbian Advocates and Defenders (GLAD) filed several cases seeking to overturn Section 3 of DOMA. These cases were brought on behalf of same-sex married couples seeking equal treatment of their marriage with regard to health and retirement benefits for federal employees, federal income taxes, and social security survivor benefits, among others. Other cases filed in federal courts throughout the country also sought a ruling that DOMA violated the equal protection of laws guaranteed under the US Constitution.  

In 2012, activists and lawyers filed some high-profile legal challenges to DOMA in the immigration context. Immigration Equality, the national organization fighting for equal treatment of lesbian, gay, bisexual, transgender, and HIV-positive individuals under US immigration law, filed a federal lawsuit, Blesch v. Holder, on behalf of five gay and lesbian couples whose Green Card applications were (or would be) denied by USCIS because of DOMA. In Aranas v. Napolitano, the plaintiffs asked the court to require USCIS to treat same-sex marriages equally to opposite-sex marriages for an important waiver for a Green Card applicant. These cases told the stories of couples facing severe hardship in their efforts to remain together in the US without permanent lawful status, and highlighted the discriminatory impact of DOMA.  

United States v. Windsor
It was yet another couple’s story of discrimination that ultimately led to the fall of DOMA. Edith Windsor and Thea Spyer, both US citizens, married in Canada in 2007 after living together as a couple for many years. They resided in New York, which recognizes same-sex marriages performed in other jurisdictions (New York’s own marriage equality law was passed in 2011). After Spyer died, Windsor inherited her estate. Based solely on the fact that theirs was a same-sex marriage, Windsor was forced to pay more than $363,000 in estate taxes. Windsor subsequently filed for a refund, which was denied. Windsor, with the help of the American Civil Liberties Union and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, LLP, then filed suit against the federal government, claiming that DOMA was an unconstitutional assault on the principles of equal protection. Although it still enforced Section 3 by refusing to issue Windsor a refund, the federal government, through the Justice Department, advised the District Court that it would not defend the constitutionality of DOMA. The Obama administration had essentially determined that it was unconstitutional. In place of the Justice Department, Congress appointed a Bipartisan Legal Advisory Group (BLAG) to defend the statute in court.  

The district court in Windsor found that DOMA’s section 3 was not enforceable because it unconstitutionally violated principles of equal protection and that there was no rational basis to support it. The BLAG filed an appeal with the US Court of Appeals for the Second Circuit, as did the Justice Department. Although the Justice Department agreed with the court’s ruling, it filed a notice of appeal as the nominal defendant, arguing that it was still an aggrieved party (the federal government, after all, was being ordered to issue a $363,000 refund to Windsor) and that its participation in the appeal would guarantee a resolution of the constitutional question.

The Second Circuit Court of Appeals upheld the lower court’s ruling on appeal. In its decision, the Second Circuit held for the first time that classifications based on sexual orientation were not subject to “rational basis” review, but rather were subject to a higher level of scrutiny, known as “intermediate scrutiny,” traditionally used to determine the constitutionality of statutes that create classifications based on gender. In its decision, the Second Circuit noted the long history of discrimination against homosexuals and the fact that, notwithstanding substantial gains in civil rights over the years, LGBT people remain “a politically weakened minority.” The Second Circuit also considered the many reasons presented by the BLAG justifying the discrimination against same-sex married couples, and rejected each of them.

The Supreme Court granted a writ of certiorari in December 2012, since the Second Circuit’s decision on DOMA conflicted with the decisions of several other Circuit Courts of Appeal throughout the country that had upheld DOMA. This set the stage for the landmark decision in United States v. Windsor, which came on June 26, 2013. The Supreme Court specifically held that Section 3 of DOMA violated the principles of basic due process and equal protection of the law under the Fifth Amendment of the US Constitution, and struck it down.

In its decision, the Supreme Court addressed two main issues: 1) the court’s jurisdiction to hear the case in the first place, given that the Justice Department did not defend the statute in court; and 2) Section 3’s constitutionality under the Fifth Amendment. Regarding the jurisdiction of the Court to hear the case, the BLAG had argued that since the government had agreed with the plaintiff Windsor, there was no real controversy. Article III of the US Constitution provides that the federal courts’ jurisdiction is limited in part to “controversies” where the US is a party. Justice Kennedy, writing for the majority, explained that since the government was ordered to pay a substantial sum of money to Windsor, it would suffer “a real and immediate economic injury” if it were required to pay Windsor the refund, even if the Obama administration disagreed with the law. The majority found that this injury was sufficient to establish a “controversy” under Article III of the US Constitution, and therefore the Court had jurisdiction to hear the case.

With regard to the merits of the case--the constitutionality of Section 3 of DOMA--the Court noted that the definition and regulation of marriage has long been largely a matter of the law of states and not the federal government. The Court also explained that, although some rules pertaining to marriage law differ from state to state (e.g., minimum age requirements), they are uniformly applied within each state. DOMA, the Court found, rejected this historic uniform treatment of married couples by singling out one subset of them--same-sex married couples--and required that they be treated differently for the purposes of federal law.  

The Court observed that when DOMA was passed by Congress in 1996, no state in the country had legalized same-sex marriage, but since that time, a number had, including New York. Where a state like New York, exercising its historical sovereign power over marriage law, has extended equal marriage rights to same-sex couples, Section 3 of DOMA requires the Federal Government “to impose restrictions and disabilities” on them. With regard to New York’s decision to recognize same-sex marriages and enact its own marriage equality law, the Court wrote:

For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.

Upon examining the legislative history of DOMA, the Court determined that the  “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”  

The Court elaborated:

…DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.  This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects…and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.  The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.

The Court described the great number of rights and responsibilities affecting married couples that DOMA affects, from criminal law to health care, taxes to social security and veteran benefits. While recognizing that the Constitution does grant Congress “great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”

The Court held:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

There is no question but that this decision marked an important moment in American history and a major step forward for the rights of gay and lesbian people in the US. Indeed, on the same day that the court issued the Windsor decision, it also issued a separate decision in the case of Hollingsworth v. Perry, a case concerning Proposition 8, California’s constitutional amendment barring same-sex marriage. Although the Supreme Court did not rule on the merits of Proposition 8, the result of the Hollingsworth decision was that same-sex marriages in California could resume.

Impact of Windsor
Since the Windsor decision federal agencies have announced that they are adapting their policies and practices to treat same-sex couples equally to opposite-sex couples in the areas of federal income tax, veterans benefits, federal employee health care, retirement and disability benefits, and, importantly, immigration. Both the Department of Homeland Security (which includes USCIS) and the Department of State began a review of their regulations and procedures to ensure that they are applied in line with this important ruling.  US citizens and lawful permanent residents may now sponsor their same-sex spouses for Green Cards. Some of these cases were approved within weeks of the Supreme Court’s decision!  Because USCIS looks to the state or country where the marriage was performed to determine whether it is a valid marriage for immigration purposes, a same-sex marriage validly performed in a country or US state that recognizes such marriages should also be recognized for US immigration purposes, regardless of where the couple resides.

Did the Supreme Court’s decision in Windsor unequivocally apply to immigration benefits? This was answered by the Board of Immigration Appeals (BIA), the agency’s appellate body that decides appeals in immigration court proceedings and from decisions denying immigrant family petitions, in Matter of Zeleniak. In that case, which was an appeal from a denial of a marriage-based Green Card petition, the BIA found that, post-Windsor, DOMA section 3 was no longer an impediment to USCIS’s recognition of same-sex marriage for immigration purposes. The BIA also determined that the Windsor ruling would also apply to numerous other provisions of immigration law, including work-based immigrant visa petitions (in which spouses receive derivative status), refugee and asylee derivative status, and waivers of inadmissibility and deportability (where eligibility may depend on having a US citizen spouse).  

USCIS has issued guidance clarifying that same-sex marriages will be treated equally to opposite-sex marriages for a host of immigration purposes, including for family preference categories, naturalization residency requirements, and waivers of inadmissibility. On the other hand, same-sex marriages performed in jurisdictions where they are not recognized will not be valid for immigration purposes. For a binational couple living abroad in a country that does not recognize same-sex marriage, the fiancé(e) visa may be an option. As of this writing, both USCIS and the Department of States have stated that they will recognize only marriages, and not non-marriage domestic partnerships and civil unions, for the purpose of marriage-based Green Card applications and nonimmigrant visa petitions. Same-sex couples seeking immigration benefits based on their relationship may wish to marry if they can do so in a jurisdiction that recognizes same-sex marriage.

This important change in the law also affects the options available to lawfully married same-sex couples where both members are foreign nationals. Previously, the same-sex married partners of foreign workers in the US were not eligible for the corresponding spousal visa in that category. For instance, a foreign worker in the US on an H-1B or O-1 visa could not previously have a same-sex spouse accompany them on an H-4 or O-3 visa, respectively. Instead, the same-sex married spouse of the foreign worker was required to separately apply for a B-2 visa and prove they were a “cohabitating partner.” As a result of the Windsor decision, same-sex married spouses of foreign workers on A, E, F, G, H, I, J, L, M, O, P, R, S, T, TN (NATO), and U visas should be able to apply together with their spouses, in the same way that opposite-sex spouses do (see here). For unmarried couples (same-sex and opposite-sex), the B-2 “cohabitating partner” visa may continue to be an option for those couples to remain together while the foreign worker is in the US on a nonimmigrant visa.

It is clear that the fight over same-sex marriage in the United States is far from over. As of this writing, more than thirty states still have laws and/or constitutional amendments banning same-sex marriage or its recognition. In recent federal cases in Utah and Oklahoma, such amendments were declared unconstitutional by federal judges who found that the states had no rational basis to justify the discriminatory law. Those cases were quickly appealed and are now before the Appeals Courts. While the Windsor decision requires the Federal Government to recognize same-sex marriages conducted in states that permits them, the Utah and Oklahoma cases present the question of whether states may constitutionally prohibit such marriages. Regardless of those cases’ outcomes, it is clear that at least for immigration purposes and other federal laws, same-sex married couples can expect equal treatment under the law.