NINE states and the District of Columbia (D.C.) legally recognize same sex marriages. When one of the parties in the relationship who is either a lawful permanent resident or a U.S. citizen, files an immigrant petition for his/her partner, the petition is still expected to be denied by the U.S. Citizenship and Immigration Services.
Regina entered the United States as an H1B visa holder. In 2004, she married her partner, Jane, in a civil ceremony held in San Francisco, California when same sex marriage was still legal. When her visa expired in 2009, her employment was terminated and her authorized stay expired. She decided to stay with her same sex partner Jane who is a U.S. citizen. Regina is now undocumented. She realizes that the U.S. Citizenship and Immigration Services do not recognize their marriage. With the recent hearings conducted by the U.S. Supreme Court, Regina is hopeful that her marriage to Jane may soon be recognized and she can receive her green card through her partner’s petition. What are the chances that these aspirations of Regina become a reality? How many more non-U.S. citizens are in the same predicament as Regina?
Supreme Court Cases on Gay Marriages
For two consecutive days this month, the US Supreme Court heard oral arguments in two cases involving same-sex marriages.
The first case involves the constitutionality of California’s Proposition 8. This case started a few years back when the Mayor of San Francisco started performing same-sex marriages. Immediately, conservative organizations questioned the validity of these marriages by filing test cases in California courts. Eventually these cases reached the California Supreme Court which declared these same-sex marriages as valid.
These conservative and religious groups, of course, did not want to accept the California Supreme Court’s decision as the final word. Instead, they decided to go directly to the people of California by starting a ballot initiative and asking for their vote to ban same-sex marriages. This ballot initiative became known as Proposition 8 (or, Prop 8). The Prop 8 ballot initiative banning same-sex marriages passed by majority vote.
Hence, we had a Supreme Court of California’s decision declaring same sex marriage as legal and a Prop 8 initiative banning same sex marriage. With these contradictory resolutions, the matter is now with the U.S. Supreme Court for review.
Parties who were denied marriage licenses because of Prop 8 filed test cases in California courts questioning the validity of Prop 8. The simple argument is that “marriage” is a basic civil right and the ban on same-sex marriage is unconstitutional. The Governor of California as well as the Attorney General of California agreed; and, refused to defend the constitutionality of Prop 8 in court. They instead authorized private parties, who were the original proponents of Prop 8, to defend Prop 8 in court. Federal district court, as well as the subsequent federal Court of Appeals case, issued judgment in favor of same-sex marriages. Hence, the case was brought to the US Supreme Court.
There are a number of ways that the US Supreme Court can decide this matter. The hope of the LGBT community, of course, is for the US Supreme Court to issue a ruling that marriage, regardless of the sex of the couple, is a constitutional right and made applicable to all 50 states. The argument for the proponents of Prop 8 is that the ban on same-sex marriages was passed by the vote of the people and courts should not impose their judgment on the voters. The oral arguments on the first of these 2 same-sex marriage cases were heard on March 26, 2013. It is expected that the US Supreme Court will come out with a decision in June 2013.
The second of the same-sex marriage cases involves the Defense of Marriage Act (DOMA), which was heard on March 27, 2013. This case involves a same-sex couple who had been together for more than 2 decades. This couple got married 2007 in Canada (where same-sex marriage is legal). The couple lives in New York (where same-sex marriage is also legal). One of them died in 2009 and the survivor inherited the property. Under federal law spouses can inherit properties from each other tax-free. The parties in this DOMA, however, faced an inheritance tax bill of $360,000 from the IRS simply because federal law does not recognize benefits for same-sex couples.
Similar to the Prop 8 case, this DOMA case was not defended by the executive branch of the US government. President Obama is of the opinion that DOMA is unconstitutional and has refused to defend the DOMA law in court. Instead, the House of Representatives Republicans hired their own lawyer to defend the law. Since this matter is now with the U.S. Supreme Court, if DOMA is declared unconstitutional there would be an end to discrimination against gay married couples in terms of the administration of federal programs and in the area of immigration.
Having had centuries of marriages involving only man and woman, it is understandably hard to change the minds of people to accept a different norm. So how is the same-sex marriage issue before the US Supreme Court relevant to us as Filipinos? If either one or both of the two cases before the US Supreme Court results in a favorable judgment for same-sex marriages, then it will have far-reaching consequences. Under current law, same sex couples like Regina and Jane may not obtain immigration benefits that is the non-U.S. citizen spouse in the same-sex relationship cannot be petitioned by a US citizen spouse. However, if either of the two same-sex marriage cases is a win, then federal immigration laws (as well as all other laws as diverse as taxation, insurance, SSS benefits, survivors’ benefits, etc.) will have to radically change. Benefits accruing to same-sex couples, benefits that opposite-sex couple now merely take for granted as a given, will be enormous. The U.S. Supreme Court will decide on the cases in June 2013 and quite predictably, in analyzing the recent development in these cases, it will not be hard to see the day the non-U.S. citizen party in the same-sex relationship may migrate to the United States.
(Tancinco may be reached at law@tancinco.com or at 1-888-930-0808 (US) or 02 887 7177 (Manila) or visit her website at tancinco.weareph.com/old)
