Imagining immigration without DOMA.

• Author: Mosten, Jordana Lynne
• Position: Defense of Marriage Act of 1996

INTRODUCTION

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." (15) Despite Gill and the Obama administration's stated desire to repeal DOMA, the statute will not be dismantled immediately. However, the lawsuit and President Obama's stance on DOMA indicate that at some point the law might be amended, overturned, or repealed. (16)

To ascertain whether DOMA is the only impediment to same-sex marriage immigration, this Note imagines that DOMA's federal definition of marriage no longer exists. Assuming that everything else were the same--most states define marriage as a union between a man and a womanly and a few states and foreign countries have full marriage equality (18)--would same-sex couples receive immigration benefits? Asking this question is important to ascertain whether DOMA is the only barrier to same-sex marriage immigration or if there are other obstacles to establishing immigration equality for same-sex couples.

To answer these questions, this Note analyzes how the definition of marriage is evolving and how that changing definition affects same-sex marriage immigration. Part I looks at the key case Adams v. Howerton. (19) Adams developed a two-part test to determine whether a person of the same sex could be considered a spouse for immigration purposes: (1) "whether the marriage is valid under state law," and (2) "whether that state-approved marriage qualifies" under the Immigration and Nationality Act ("INA"). (20) This test is the central judicial standard for same-sex marriage immigration. (21) Emphasizing the second prong of the test, Adams concluded that Congress intended a marriage to be between spouses of the opposite sex and that it did not want to give immigration benefits to same-sex couples. Part I then turns to the analogous case of transsexual marriages to underscore that the difference between transsexual marriages--which receive immigration benefits--and same-sex marriages--which do not--is congressional intent. Part II revisits Adams to see if the test would come out differently today. Even though same-sex marriages are recognized by several states and there have been significant legal and social changes in the same-sex marriage debate, the definition of "marriage" is, at best, ambiguous and Congress's intent regarding the gay community in the immigration context is unclear.

As a result of the ambiguities surrounding congressional intent, Part II looks at how U.S. Citizenship and Immigration Services, the agency in charge of granting immigration visas, might interpret the meaning of "marriage" if there were no DOMA explicitly banning same-sex marriage. The agency's interpretation would depend on the executive branch and whether the president would promote an interpretation of marriage that encompasses same-sex marriage. Given the uncertainties surrounding how courts might interpret the INA, Part III changes gears and explores legislative and administrative options to permit same-sex marriage immigration. The best option would be for Congress to pass a law, such as the Uniting American Families Act ("UAFA"), which is currently moving through committee. The UAFA would grant same-sex couples immigration benefits. Finally, this Note concludes that even without DOMA, explicit congressional authorization is necessary to authorize same-sex marriage immigration. While repealing or striking down DOMA would afford the gay community numerous benefits, same-sex marriage immigration requires an explicit affirmative act of Congress. This Note urges proponents of same-sex marriage immigration to focus their efforts on passing legislation to clearly allow same-sex couples immigration equality.

1. THE IMPORTANCE OF CONGRESSIONAL INTENT TO DEFINE "SPOUSE"

   Until DOMA explicitly defined marriage as a heterosexual institution, the Ninth Circuit's two-part test in Adams v. Howerton was the primary roadblock preventing same-sex marriage immigration. The test looks at (1) "whether the marriage is valid under state law," and (2) "whether that state-approved marriage qualifies" under the INA. (22) This Part first analyzes the Adams court's reasoning to understand the parameters of the test and then looks to transsexual marriages as an analogy of how same-sex marriages would fare under Adams if DOMA did not exist. Both the Adams analysis and the transsexual comparison illustrate that the most important factor is not the legality of the marriage, but Congress's intent.

   1. Adams v. Howerton: The Standard Definition of Spouse Before DOMA

      In 1982, the Ninth Circuit held that the term "spouse," as used in the INA, refers to a person of the opposite sex. (23) In Adams, Richard Frank Adams, a male American citizen, and Anthony Corbett Sullivan, a male foreign national from Australia, obtained a marriage license from a county clerk in Colorado. Subsequently, Adams petitioned Immigration and Nationality Services ("INS") (24) to classify Sullivan as an immediate relative of an American citizen, based upon Sullivan's status as Adams's spouse. That petition was denied. Since the INA does not define the word spouse," (23) the Adams court developed a two-step analysis to determine whether a marriage would be recognized for immigration purposes: (1) "whether the marriage is valid under state law," (26) and (2) "whether that state-approved marriage qualifies under the [INA]." (27)

      Even though the Ninth Circuit did not reach the issue of whether the marriage was valid under Colorado law, the court explained that "the mere validity of a marriage under state law [is not] controlling." (28) Therefore, even if a state validated a same-sex marriage, the INS did not have to grant immigration benefits to a couple from that state. For example, the INS did not recognize legally valid marriages in which the parties did not intend to live together. (29) Thus, the court did not discuss the first prong of the test and instead...