What the Supreme Court’s Decision to Hear a Challenge to DOMA Should Mean for Same-Sex Bi-National Couples

On Friday, the Supreme Court agreed to hear Edie Windsor’s challenge to the discriminatory, so-called Defense of Marriage Act (DOMA). Despite the fact that Edie and her late spouse, Thea Spyer, were together for more than four decades and were legally married in Canada in 2007, DOMA required the federal government to treat the couple as legal strangers. When Thea passed away in 2009, Edie was forced to pay more than $363,000 in federal estate taxes that would have otherwise been zero had she been married to a man.

Edie’s case illustrates one of the many ways DOMA harms married same-sex couples and their families every day. Perhaps one of the cruelest is in the area of immigration law. Americans with opposite-sex foreign national spouses can sponsor their partners for residency in the United States. Because of DOMA, this option is not available to married same-sex couples in which one of the partners is a foreign national. As Chris Johnson of the Washington Blade points out, this discrimination causes same-sex bi-national couples to live with the fear of separation and the risk that the immigrant partner could become subject to deportation.

On Monday, a coalition of more than 50 organizations, including the ACLU, sent a letter to President Obama urging the administration, following the Supreme Court’s decision to hear Edie’s challenge to DOMA, to hold – rather than deny – applications from same-sex bi-national couples for lawful permanent residence that would be approvable but for the law, pending a decision from the court.

As the letter points out, holding these applications in what is known as abeyance is a way to preserve the status quo and prevent “irreparable, unconstitutional harm that otherwise would be caused to legally married families.” Such a step is not without precedent and is in keeping with previous actions taken on behalf of the surviving spouses of U.S. citizens and foreign nationals living with HIV.

The letter follows a decision by the Congressional Hispanic Caucus in late November to include protections for same-sex bi-national couples as a key part of the principles for guiding comprehensive immigration reform.

In addition, on October 5th, the Department of Homeland Security (DHS) issued written guidance that the ties of a same-sex partner or spouse would be counted as a positive factor in determining discretionary relief from deportation in immigration cases. This guidance, which made clear that “family relationships” include LGBT immigrant families, was a welcome step forward for DHS.

The decision to hear Edie’s case is hopefully the beginning of the final chapter of the one remaining federal law that mandates discriminatory treatment of individuals based on their sexual orientation. By acting now on abeyance, the administration could remove a cloud of fear and uncertainty that hangs over these couples by allowing them to remain securely together until the Supreme Court issues its ruling. The ball is now squarely in the administration’s court.

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