On October 6, 2014 the Supreme Court made a landmark decision on the subject of gay marriage, by making no decision at all. The Supreme Court was being urged to hear arguments as to whether lower courts had ruled appropriately in finding that gay marriage bans violated the Equal Protection Clause of the Constitution. By refusing to hear the cases, the bans remain unconstitutional and gay marriage either is, or will soon be, legal in the states affected.
The practical effect of the Supreme Court’s refusal to hear the appeal is that gay marriage is now legal in 30 states and the District of Columbia. In five more states there are federal appellate court rulings in favor of the right to marry, which means we can expect the law in those states to allow gay marriage soon. In an additional 8 states, cases are still waiting to be heard by the appellate courts following pro-gay marriage ruling by lower courts. At last count only six states still have a gay marriage ban that has not been impacted by an adverse court decision (these states are: ND; SD; NE; MS; AL; GA).
Earlier this year, the Supreme Court held in United States v. Windsor that section 3 of the Defense of Marriage Act was unconstitutional. This opened the door for Federal recognition of same-sex marriages and the extension of benefits therewith, including the filing of joint tax returns and the ability of US citizens to petition for green cards for their foreign national same-sex spouses. It was surprising, however, that the Court refused to hear any of the more recent appeals. Lower courts have been applying Windsor broadly, going so far as to find that gay marriage bans violate equal protection rights under the 4/14th amendment – something the Supreme Court had been careful not to do.
What this means on the immigration front is that it is easier for LGBT Americans to access immigration benefits for their foreign national spouses, including petitioning for a green card. For a same-sex couple to be able to apply for a green card for their foreign national spouse, they must be married in a state that recognizes gay marriage. Depending on where the couple lives, they may have to travel long distances to get a valid marriage certificate. Now, with more states legalizing gay marriage, it is increasingly easier for same-sex couples to access the same rights as their heterosexual peers. With momentum moving in the direction of further legalization, there will be increasing pressure on states that still have bans in effect.
Same-sex couples interested in helping their foreign national spouse obtain a green card are encouraged to contact us for more information. To receive timely information on these developments, and other immigration news, please sign up for our mailing list.