Academic journal article The Journal of Law in Society

Love and Let Love: The Trials of Same-Sex Marriage, DOMA, and the Conflict of Laws

Academic journal article The Journal of Law in Society

Love and Let Love: The Trials of Same-Sex Marriage, DOMA, and the Conflict of Laws

Article excerpt

Table of Contents   I. INTRODUCTION  II. BACKGROUND      A. The Inaction of the Repealed Defense of Marriage Act      B. The History of Same-Sex Marriage      C. History of Same-Sex Immigration Internationally III. ANALYSIS      A. The Immigration and Nationality Act Approach to Marriage      B. The Onset of DOMA and the Interaction with the INA      C. Proposed Options to Side-Step DOMA Before July 2013  IV. BROADENING THE TERMS 'MARRIAGE' AND 'SPOUSE'      A. Common Law Marriage      B. Proxy Marriage      C. Age-of-Consent   V. CURRENT CASE LAW      A. Legal Implications of United States v. Windsor on DOMA      B. Present-Day Implications of Adams  IV. CONCLUSION 


Same-sex marriage is one of the most globally divisive issues of this era. Though many questions surrounding the debate relate to morality, the relationship of gay union and immigration is often ignored. Immigration is rarely discussed in the context of marriage policy discussion. Since the 1940s, family re-unification has been the cornerstone of United States immigration law and policy, and in 2010, nearly one-half of all immigrations to the United States were a result of this policy. (2)

Current immigration law allows qualifying "immediate relatives" including spouses, children, and parents--of U.S. citizens to immigrate without numerical limitation, (3) and gives preference to other family members who do not, per se, align with the statutory definition of "immediate relatives." (4) Clearly, any numerical limitation will increase the wait time before any sort of immigration status is granted. Therefore, there is a substantial advantage for those who fall within the definition of an "immediate relative" of a U.S. citizen or a legal permanent resident." Even fiances of U.S. citizens are allowed to immigrate on this basis, as long as they intend to marry within three months of arrival in the United States. (6)

The Immigration and Nationality Act ("INA") does not define marriage explicitly. Yet, nearly all immigration offices and officers recognize marriages that are valid and legal where they were celebrated, even if the marriage would not have been considered valid if performed in the United States. (7) Although the INA does not address restrictions to the recognition of marriage to only heterosexual couples, the definition of marriage can be inferred, through U.S. law under DOMA, in preventing same-sex partners of U.S. citizens from immigrating under the specific category of "immediate relatives." (8) Under the concept of family reunification within immigration laws, homosexual Americans in relationships with foreign nationals have no legal way to expedite the process of bringing their partners to the United States.

The Defense of Marriage Act of 1996 (DOMA) prohibited federal recognition of same-sex marriages. (9) DOMA left many same-sex couples without the legal means to live together in the United States and obtain similar benefits that are awarded to heterosexual couples. The dichotomous nature of U.S. immigration law, which centers its views on family unification, and DOMA, which excludes homosexual couples from federal recognition, has finally been resolved with the United States v. Windsor Supreme Court decision in 2013. (10)

Prior to the Windsor decision, there was no legal avenue for gay or lesbian Americans in relationships with foreign nationals to bring their partners into the United States. The foreign partner had to qualify independently, sometimes by qualifying for an employment-based visa. This was quite difficult, as many individuals fall short of the very specific and concise skills sought by the Immigration and Naturalization Services (INS). (11) Even if these individuals did qualify for said skills, they would still be subject to the restrictive limits on legal immigration. Essentially, the spouse of a married heterosexual person was given a shortcut, but the legal partner of a gay man or lesbian woman would be left behind while waiting to go through the regular immigration process. …

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