An estimated 35,000 U.S. Citizens are living in our country with same-sex foreign partners, but with no right to stay here together on the basis of their relationship. Many are faced with a choice between their partners and the country they love. This is true, even if the couple is legally married in one of the growing number of states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” under all federal law as an exclusively heterosexual institution, now stands squarely in their way.
Reform options that would help these couples to stay together in the United States include a judicial determination that marriage discrimination violates the U.S. Constitution, federal legislation specifically recognizing these couples under U.S. immigration law, and the repeal or striking down of DOMA. This article assumes that the latter possibility is the most likely.
If DOMA were repealed or struck down, that would not result in a clear, uniform rule recognizing all same-sex marriages under the Immigration and Nationality Act (INA). However, there is a wealth of guidance about how our immigration system deals with marriages that are recognized in some, but not all U.S. states. This article maps out the legal terrain that would remain in an immigration world without DOMA.
It turns out that US Attorneys General, the Board of Immigration Appeals (BIA), immigration officials, and most federal courts have consistently applied the same standards to determine marriage validity under the INA. This analysis has been used in dozens of cases, including those involving bi-racial marriage, marriage between close relatives, marriage involving minors, marriage involving transgender spouses, proxy marriage, polygamy, and even same-sex marriage before DOMA.
After setting out the well-established rules for dealing with disputed categories of marriage, this article applies them to same-sex spouses. It identifies some answers and illuminates possible approaches to a few hard questions that would remain.
Scott Titshaw. "The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA" William & Mary J. Women & L.
Vol. 16 Iss. 3 (2010)
Available at: http://works.bepress.com/scott_titshaw/1/