DOMA ruled Unconstitutional

Edith Windsor was in a relationship for a long time, and was married in Canada in 2009. She is 83 and lived in New York. When her spouse died the federal Government levied a tax of $363,000/- that would not be ordinarily levied on a widow.  Why? Because Edith was a lesbian, and the marriage was same sex.

The IRS looks to a State law in determining whether the person is married. New York recognized gay marriages in 2011. But the couple was married in 2009. Under the Federal Law Defense of Marriage Act (DOMA) , the word spouse is defined as a person of the opposite sex. The second circuit yesterday became the second federal court to rule that DOMA is unconstitutional. It takes away the rights of same sex couples that are inherent in heterosexual couples.

Although this case is a tax case, it has humongous impact on Immigration. Many long term same sex couples cannot get the immigration benefits from being married to their long time spouse.  They are actually penalized more heavily than even Edith Windsor.  Many times they are forced to live illegally, with no immigration benefits, but simply because of the love for their partners. If that partner dies, they cannot gain anything monetarily.

Same sex marriage is legal in 6 states and the District of Columbia. 5 more States allow Civil union. 4  States are voting on the issue in November.  Hopefully the tides will turn and we can actually become a land that guarantees “liberty and Justice for all.”

 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

Immigration and Gay Marriage

Recently 6 states have legalized gay marriage. The States are mainly in New England, New York, DC, and Iowa.  Yet, just before Massachussets legalized gay marriage, the federal Government passed a Statute called Defense of Marriage Act (DOMA)  in 1996 which defined marriage as a union between a man and a woman. DOMA does not prevent a State from legalizing gay marriage, but States can refuse to grant any rights to same sex partners.

Many Red ( read Republican) States like Texas prohibits same sex marriage by statute or Constitution. Yet under the full faith and credit law, States are supposed to recognize marriages held in other states.

When it comes to Immigration, same sex partners have so far been denied the right to adjust status via marriage. If one partner of a heterosexual couple is a United States Citizen, the other partner can obtain the Permanent Residency (Green Card) very easily. Yet that same right is denied to a same sex couple. Recently Jose Antonio Vargas, the pulitzer prize winning journalist from the Phillipines, who is undocumented, said he was asked to marry a girl to get the immigration, but he is gay and could not. Stories of long time gay couples, who cannot  be united are heart wrenching. And whats more outrageous is that a Government entity from what is known as a “civilized” nation like ours is the one doing the discrimination.

Legally the federal law is supposed to recognize the law in a state, when it has to deal with state law issues like family law.  Yet the DOMA prevents the federal government to grant rights to same sex couples.  So the Citizenship and Immigration Service in these 6 states are shelving the cases hoping that the courts will rule on DOMA.

What is really maddening though is that when President Obama ran for President, he supported gay marriage. But now, trying to concede to the conservative opposition, he says he is rethinking his position on DOMA. We, the people of the United States voted for Obama, because we wanted America to regain the freedom we lost during the Bush era. Let us show the world that we will not fall behind when personal liberty is at issue.

 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information