How Same Sex Immigration Is Possible

U.S. v. Windsor & DOMA change the rules for immigration.

With the verdict of this landmark case, the United States Supreme Court states that restricting U.S. federal interpretation of “marriage” and “spouse” to only heterosexual unions is unconstitutional under the Due Process Clause of the Fifth Amendment. Because doing so disparages and injures those whom the State, by its marriage laws, sought to protect in person-hood and dignity.

Edith Windsor and Thea Spyer, a same sex couple residing in New York, were lawfully married in Ontario, Canada in 2007. Spyer died in 2009, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses. She was barred from doing so by Section 3 of DOMA (codified at 1 U.S.C. § 7), which provided that the term “spouse” only applied to marriages between a man and woman. Since the IRS found that the exemption did not apply to same sex marriages, they denied Windsor’s claim, and made her pay $363,053 in estate taxes.

On November 9, 2010, a lawsuit was filed against the federal government in the United States District Court for the Southern District of New York, where Windsor sought a refund because DOMA singled out legally married same sex couples for “differential treatment compared to other similarly situated couples without justification.”

On February 23, 2011, U.S. Attorney General Eric Holder issued a statement from the Obama administration that agreed with the plaintiff’s position that DOMA violated the U.S. Constitution and said he would no longer defend the law in court.

On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG) continued defense of the law.

On June 6, 2012, Judge Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment and ordered the federal government to issue the tax refund, including interest.

On October 18, 2012, the U.S. Second Circuit Court of Appeals affirmed the decision.

In December 2012, BLAG and the U.S. Department of Justice appealed the decision to the U.S. Supreme Court, which issued a writ of certiorari.

On March 27, 2013, the court heard oral arguments.

On June 26, 2013, the U.S. Supreme Court issued a 5–4 decision declaring Section 3 of DOMA to be unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment.

On the same day, the court also issued a separate 5–4 decision in Hollingsworth v. Perry — a case related to California’s constitutional amendment initiative barring same sex marriage. The decision effectively allowed same sex marriages in that state to resume after the court ruled that the proponents of the initiative lacked Article III standing to appeal in federal court based on its established interpretation of the case or controversy clause.

On February 8, 2014, more Federal Privileges extended to same sex couples do to this landmark case.  Here’s what’s on the horizon:

The federal government will soon treat married same sex couples the same as heterosexual couples when they file for bankruptcy, testify in court or visit family in prison.

Attorney General Eric H. Holder Jr. was preparing to issue policies aimed at eliminating the distinction between same sex and opposite-sex married couples in the federal criminal justice system, according to excerpts from a speech prepared for a Saturday event organized by a prominent gay-rights group.

“In every courthouse, in every proceeding and in every place where a member of the Department of Justice stands on behalf of the United States, they will strive to ensure that same sex marriages receive the same privileges, protections and rights as opposite-sex marriages,” Mr. Holder’s prepared remarks said, according to the excerpts circulated by the Justice Department.

Since the ruling in June, the Obama administration has rewritten federal rules to allow same sex couples to file taxes together and receive Medicare and other benefits reserved for married couples. Mr. Holder has been the public face of those efforts and has made championing gay rights one of the central messages of his tenure.

Designed by Voyage