Imagining Immigration without DOMA
Mosten, Jordana Lynne, Stanford Law & Policy Review
Even though Massachusetts, Connecticut, Iowa, and New Hampshire perform same-sex marriages, (1) as do Belgium, Canada, the Netherlands, Norway, South Africa, and Spain, (2) a gay American citizen or lawful permanent resident who marries in those jurisdictions cannot sponsor her spouse to immigrate to the United States. (3) As a result, over 35,820 same-sex couples must choose between living in their native country alone or being with their spouse abroad. (4) Unlike the foreign spouse in a heterosexual couple who can obtain a permanent visa relatively quickly, the foreign member of a same-sex couple has limited options to legally immigrate to the United States. In the best-case scenario, the foreign national might have a parent or sibling who can sponsor her. The wait for a family-based visa sponsored by a parent or sibling to immigrate to the United States takes between four and ten years. (5) A second option is to secure an employment visa. Employment visas are contingent on the foreign national's skill level and labor needs in the United States. Yet, even if a foreign national meets the criteria, the person could wait anywhere between a few months and nine years. (6) The protracted wait and uncertainty of obtaining any type of visa makes it unfeasible for most same-sex binational couples to permanently live in the United States together.
The 1996 Defense of Marriage Act (DOMA) is the main impediment to same-sex couples receiving immigration benefits. (7) DOMA, a federal law, defines "marriage" as a "union between one man and one woman as husband and wife," and further states that "the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (8) Explicitly defining marriage as between a man and a woman means that immigration officials can recognize only heterosexual marriages for purposes of granting family visas. (9)
Congress has the ability to bar same-sex marriage immigration through DOMA due to the plenary power doctrine. The plenary power doctrine states that the power to regulate immigration is an inherent power of a sovereign nation; Congress's ability to "exclude aliens ... [is not] open to controversy." (10) Hence, Congress can exclude a foreigner because of her sexual orientation or because it does not choose to recognize her marriage to an American citizen.
Because of the plenary power doctrine, Congress's authority to exclude aliens without legally recognized marriages is not open to legal challenge. So this Note focuses on the effect of DOMA on same-sex marriage immigration. This Note asks two questions: (1) Whether DOMA is the only obstacle to same-sex marriage immigration, and (2) Whether, if DOMA were repealed, would Americans who marry foreign nationals of the same sex be able to sponsor their partners for family visas. These questions are not solely theoretical; there are indications that eventually DOMA will be repealed or amended. In Gill v. Office of Personnel Management, a lawsuit filed in a Massachusetts federal district court in March 2009, the plaintiff argues that DOMA should be struck down because it targets gays and lesbians for discrimination in its denial of federal benefits for spouses of federal employees. (11) Gill is currently being litigated in district court, but because of the importance of the federal questions involved, it could go before the Supreme Court. (12) Even if Gill does not dismantle DOMA, it represents a concerted legal effort to challenge the law. Furthermore, President Barack Obama supports repealing DOMA. (13) While gay rights advocates believe President Obama has done little in his first year in office to help the gay community, and in fact his Department of Justice has filed briefs in support of DOMA, (14) he maintains he is committed to promoting civil rights for gays and lesbians. In October 2009, for example, the Obama administration filed papers stating that the administration wishes to repeal DOMA because it "prevents equal rights and benefits," but in the meantime the Justice Department is obligated "to defend federal statutes when they are challenged in court. …