• Immigration Policy Implications of the Repeal of DOMA
  • July 3, 2013 | Authors: Teresa B. Finer; Natalia Gove
  • Law Firm: Lowndes, Drosdick, Doster, Kantor & Reed Professional Association - Orlando Office
  • The US Supreme Court decision to overrule the Defense of Marriage Act ("DOMA") on June 26, 2013 is of great historic significance, and will bring major changes in US immigration law.

    The Court held in US v. Windsor that Section 3 of DOMA violated the Equal Protection clause of the Fifth Amendment by requiring the federal government to disregard legal marriages of same-sex couples, and by preventing them from accessing federal benefits ordinarily available to married couples of the opposite sex.

    DOMA defined marriage as a union between a male and a female, and denied same sex couples access to federal benefits and protections that were available to heterosexual couples.  This included sponsoring a foreign national spouse for permanent resident ("green card") status based on marriage.  As a result of Wednesday's decision, US citizens and US permanent residents will be permitted to file relative petitions for their same sex spouses.

    The Court's ruling has restrictions.  The decision does not legalize same-sex marriages in all states, and will only impact those couples married in states where same-sex marriage is already legal.  At the present time, this includes 12 states and Washington, DC.  After Wednesday's decision in a companion case, California will soon join this list. Civil unions and domestic partnerships recognized in seven states also do not appear to be covered by the ruling. Florida is not one of the states where same-sex marriages or civil unions are legally recognized. The Supreme Court decision, however, does represent a major countrywide policy change for thousands of same-sex bi-national couples.