Same-Sex Spouses’ Right to Equal Protection

By: Maureen Johnson*

Recent polls and statements by political leaders including President Obama demonstrate a growing trend in favor of legalizing same-sex marriage. As of this writing, same-sex marriages are nationally recognized in 13 countries worldwide. Nine states and the District of Columbia allow gay marriage. Nevertheless, current laws in the majority of U.S. states and at the federal level continue to deny same-sex married couples a wide range of rights and privileges enjoyed by couples in ‘traditional’ opposite-sex marriages. In this context, this week the United States Supreme Court heard two cases challenging the constitutionality of state and federal prohibitions on recognizing same-sex marriage, the outcomes of which will have major implications for bi-national same-sex spouses.

On March 26, the Court heard oral arguments in the case of Hollingsworth v. Perry, which challenges California’s Proposition 8. In 2008, California voters’ passage of Proposition 8 overturned a State Supreme Court ruling legalizing same-sex marriage and briefly allowing same-sex couples to marry in California. Later federal rulings overturned Proposition 8, but same-sex marriages have so far not been reinstated, pending a decision by the nation’s highest court. The Supreme Court could rule that same-sex couples have a right to marriage equal to that of opposite-sex couples, thus potentially overturning anti-same-sex-marriage laws in every state across the country. This approach, if taken, would be a huge success for marriage equality, thereby creating uniformity amongst states in granting same-sex couples equal rights under the law. However, the Court could also issue a more narrow ruling limiting the right to marry only to California, or more broadly to states including California that allow civil unions granting every right conferred by marriage without the title itself. Alternately, the court could deny standing to Proposition 8’s proponents (California’s governor declined to appeal the lower court ruling) on the grounds that they are not directly harmed by the legalization of same-sex marriage and therefore are ineligible to bring the case to begin with, in which case same-sex marriage could be legalized in California but would not be extended to any other state. Lastly, the court could deem Proposition 8 legal, thereby reinstating the law’s ban on same-sex marriage in California.

On March 27, the Court heard the second of the two marriage equality cases. United States v. Windsor was brought as a challenge to the federal Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton, who recently argued in a Washington Post op-ed that he now believes the law is unconstitutional and should be struck down. The main argument against DOMA in the Windsor case is that the federal government is denying same-sex couples equal protection under the law by its failure to grant federal recognition and benefits to same-sex spouses who were wed in states where same-sex marriage is legal. Just as California’s governor has opted not to defend Proposition 8, the Obama Administration has stated that it believes DOMA (and Proposition 8) unconstitutional and has opted not to defend the law, but nevertheless requested that the issue was important enough that the Supreme Court should review the case. As a result there is a question of standing in United States v. Windsor as well, but most observers believe that the Court will make a ruling one way or the other in this case.

According to the gay rights organization Immigration Equality, current regulations under DOMA mean that more than 1,100 federal programs and benefits are unavailable to married same-sex couples in the United States. The most important issue at stake from an immigration standpoint, however, is that citizenship rights cannot currently be extended to a non-citizen by virtue of his/her marriage to a same-sex American spouse. In effect, U.S. citizens with same-sex partners have been denied the right of petitioning for their spouses and have been largely powerless when their spouses face deportation. Such citizens have had to choose between remaining in the States without their husband or wife or leaving the U.S. in order to stay together. Should the Court strike down the section of DOMA currently under review, Americans in same-sex marriages with non-citizens would for the first time be able to sponsor their husbands and wives for legal status and eventual American citizenship. A narrow ruling by the Supreme Court striking down DOMA would allow same-sex marriage only in those states where courts have also deemed its prohibition unconstitutional, but a broader decision could void the unjust effects of DOMA countrywide.

Assuming the justices grant standing in either Hollingsworth v. Perry or United States v. Windsor, the ideologically divided court’s deciding vote in both cases is expected to rest with Justice Anthony Kennedy. The outcome of the cases will not be known until the Court’s decisions are released (likely sometime in June). However, media reports based on this week’s proceedings have suggested that Kennedy, along with the Court’s ‘liberal wing,’ appears ready to strike down the portion of DOMA currently being challenged, ruling it unconstitutional on equal protection grounds. I remain hopeful that the day will soon come when U.S. citizens in same-sex partnerships will be allowed equal rights under federal law and finally be able to petition for their non-citizen husbands and wives. It has been long overdue, but until DOMA’s ban is overturned, family-based immigration laws will continue to be unjustly denied to U.S. citizens in same-sex partnerships.

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*Maureen Johnson is of Counsel to BOILA PC

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