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DOMA has been struck down and held unconstitutional

| Feb 7, 2024 | Firm News

By Grace Alano

The Supreme Court has struck down the Defense of Marriage Act, or DOMA, which barred the federal government from recognizing same-sex marriage.  The law was seen as a violation of the Equal Protection clause of the Constitution.  The decision does not change any laws regarding whether same-sex couples can marry, but rather determines whether they can receive federal benefits that apply to heterosexual couples.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others.

“This does open the door for  bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”

I had been holding my breath for the last several days, anxiously awaiting the decision and cried some happy tears this morning.  It is going to affect many couples that I have been working with.   I will continue to monitor the news and what the decision means for immigration.

Grace Alano is an immigration attorney at The Law Offices of Grace R. Alano in San Francisco, CA. Find Grace on  Google+, Twitter and Facebook.