Today the Supreme Court handed down a historic decision repealing Section 3 of the Defense of Marriage Act, or DOMA, which forced the federal government to ignore legal marriages of same-sex couples and prevent them from accessing an array of federal benefits. The repeal of Section 3 is an enormous victory for lesbian, gay, bisexual, and transgender, or LGBT, families and for equal treatment under the law. Among the many policy implications resulting from the decision, the repeal will permit legally married LGBT U.S. citizens and Lawful Permanent Residents, or LPRs, to sponsor their foreign-born spouses for green cards.
Section 3 of DOMA—a federal law passed in 1996 that defined marriage as a union between one man and one woman for the purpose of federal administrative policies—denied LGBT couples access to more than 1,000 federal programs and benefits available to opposite-sex married couples. And because the U.S. Citizenship and Immigration Services, or USCIS, incorporated Section 3’s definition of marriage in immigration law and policies, one of the benefits denied to approximately 24,700 LGBT couples was the ability to sponsor a foreign-born spouse for family-based immigration. As a result, either some LGBT spouses of U.S. citizens and lawful permanent residents were deported or LGBT Americans were forced to choose between the people they love and the country they love. This practice violated a basic principle of American immigration policy: family reunification. Since the Obama administration is on record favoring same-sex marriage, USCIS should immediately begin processing LGBT spousal immigrant-visa applications the same way it processes applications for opposite-sex couples.
In an attempt to provide relief for LGBT binational couples, the Uniting American Families Act, or UAFA, was first introduced in the 111th Congress to amend the Immigration and Nationality Act. UAFA aims to eliminate discrimination by allowing a U.S. citizen or permanent resident to sponsor their same-sex partner for immigration to the United States. Sen. Patrick Leahy (D-VT) attempted to introduce an amendment modeled after UAFA to the Senate’s current bipartisan immigration-reform bill—the bipartisan Border Security, Economic Opportunity, and Immigration Modernization Act of 2013—that would allow LGBT U.S. citizens to petition for their foreign-born spouses to become permanent residents. Sen. Leahy was forced to withdraw the amendment during markup, however, following threats from Judiciary Committee Republicans to abandon the bill if his amendment was included.
The Court’s decision is an important step toward giving equal treatment to same-sex binational couples under immigration law and accomplishes much of what Sen. Leahy’s amendment sought to do. With the repeal of Section 3, families such as Ness Madeiros and her wife Ginger, who have lived in fear of separation for too long, will finally get relief. Even though they were legally married in Massachusetts in 2008, DOMA prevented Ginger, an American citizen, from sponsoring her wife Ness, an immigrant from Bermuda. Without a green card, Ness is unable to officially adopt their 8-month-old son, Jamie, and even worse, she risks being deported back to Bermuda when her student visa expires. Thanks to the Supreme Court’s ruling, Ginger can now sponsor her wife for an immigration visa, and her family no longer has to fear being torn apart.
Even with this victory, there is still much to do to push for marriage equality in all 50 states and to fully overturn the remaining provisions in DOMA. The Court’s decision will unfortunately not help all LGBT couples living in America—only those who can legally marry. Absent federal guidelines, USCIS defers authority to regulate marital status to the states, but even after this significant decision by the U.S. Supreme Court, only LGBT binational couples married in states where same-sex marriage is legal will be able to sponsor their spouse for a green card. About one in five same-sex couples in the United States currently live in a state with marriage equality. And after the Supreme Court’s decision in Hollingsworth v. Perry, which effectively allows same-sex marriages to resume in California, this number will nearly double; about 15 percent of the country’s same-sex households are in California.
While today’s decision is a good first step that provides hope for a future together for an estimated 24,700 same-sex binational couples, there are still 11 million undocumented immigrants, including more than 267,000 LGBT immigrants and their family members that are in dire need of relief. Passing the bipartisan Senate immigration bill would add tremendously to the gains made by the Court’s decision and would bring us back to our roots as a nation welcoming of all immigrants.
Sharita Gruberg is a LGBT Immigration Policy Analyst at the Center for American Progress.
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Former Vice President, LGBTQI+ Research and Communications Project