Ari Ezra Waldman | DOMA | Immigration | Law - Gay, LGBT

Problems Ahead In a Post-DOMA World: The Fate of Binational Couples

Monica-Alcota-and-Cristina-Ojeda-DOMABY ARI EZRA WALDMAN

This is the fourth in a series of analyses about the Supreme Court's decision to hear cases challenging the constitutionality of the Defense of Marriage Act and Proposition 8.

Today's discussion: What the DOMA case does not address.

In about six weeks, the Supreme Court will hear arguments on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) and Proposition 8. Fifteen weeks later, the Court will hand down a decision in which a majority is likely to declare that part of DOMA unconstitutional. Although that will be a great day for gay rights, in general, and married gay couples, in particular, it is by no means the end of the story.

The end of DOMA Section 3 means that the federal government will return to doing what it has always done: recognizing those couples the States say are married. Section 3's discriminatory definition of marriage denies legally married same-sex couples the thousands of federal rights normally associated with getting married, including everything from health insurance to survivorship benefits to immigration rights for bi-national couples.

It is the last issue that is particularly vexing not only because gay binational couples have had to survive under a tragic regime that rips apart two people in love, but also because the end of DOMA is a half measure that leaves thousands of these men and women without equal rights.

In a post-DOMA world, the U.S. citizen of a legally married gay binational couple who was married and lives in a marriage equality state would be able to sponsor his foreign national spouse for a visa. But, what if you were married in New Hampshire (an equality state) and live in Kansas (a non-equality state that doesn't recognize out-of-state same-sex marriages)?

Well, that's an open question that we can discuss AFTER THE JUMP...

DomaConsider this hypothetical: Eddie and Marius are gay and were married last year in a civil ceremony in the State of New York. Eddie was born in Redmayne, New Jersey; Marius is a citizen of France. The two men live in Lincoln, Nebraska, where Eddie is a chef and Marius is a French teacher. Marius's temporary work visa has expired and the government is getting ready to send him back to France. Naturally, the couple wants to stay together, but Eddie cannot leave Nebraska, let alone the United States, at this time. Can Eddie, a U.S. citizen, sponsor his husband Marius for a spousal visa? 

Today, the answer is easy: No, he can't. DOMA prevents the federal government, which handles all immigration issues, from recognizing the marriage as valid simply because it is a marriage between two men. 

But, if DOMA were gone, if the Supreme Court declares it unconstitutional or Congress passes the Respect for Marriage Act, the answer is unclear. The central question is this: What matters for federal recognition of a marriage: The state of celebration, i.e., where the couple got married and got a marriage certificate from the state, or the state of domicile, i.e., where the couple lives, works, and pays taxes?

Non-lawyers might find this distinction aggravating. That someone lives in Fort Lee, New Jersey (the first town just west of the Hudson River), but got married 10 minutes away in Manhattan, seems a poor, unjust, and heartlessly semantic reason to rend apart a loving and committed couple.

Nevertheless, the distinction's injustice does not make it inapplicable.

Some evidence suggests that it is the state of domicile that matters. A similar case might involve first cousin marriage, which is banned in 30 states (as of last year). Arizona is among those 30 states and it has refused to recognize out-of-state first cousin marriages even if the marriages were legal where performed or celebrated. As a result, Arizona state courts have denied widows of such marriages any rights vis-a-vis the state after spousal death (e.g., In re Mortenson's Estate). And, in many cases, federal tax benefits have denied to these types of widows upon the death of the first-cousin spouse.

DumpdomaThen there are cases like In re Jose Mauricio Lovo-Lara at the Board of Immigration Appeals (BIA). The BIA is an intermediate administrative review board within the Department of Justice that reviews the decisions of immigration judges, kind of like the Second Circuit reviews decisions from the Southern District of New York. Lovo-Lara concerned the spousal visa application for an El Salvadorian man married to a post-operative male-to-female transgender individual, a U.S. citizen and resident of North Carolina. North Carolina recognized both the sex change and the marriage as valid. The BIA said that DOMA did not apply because the marriage was not between two individuals of the same-sex and that the federal government should accept as valid based on the state of celebration. The panel also reminded us that other states need not recognize the marriage if marriages involved transgender individuals conflict with the deeply rooted public policy of that state.

There is something to be said for taking one step at a time. The question of the constitutionality of DOMA's discriminatory definition of marriage is also a distinct legal question from the source of the definition of marriage in a post-DOMA world. In the legal world, that means we need another case: judges generally address only the discrete legal question before them, so this question is beyond the reach of Windsor v. United States. In the political world, we can lobby the Obama Administration to direct immigration judges and the BIA to accept the validity of marriages for federal law based on the state of celebration. Although this strategy could be reversed by a future, antigay administration, an executive order could still save countless committed gay couples from being ripped apart.

That said, let's get rid of DOMA first.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.

(top photo and screencap - Lavi Soloway - The Doma Project)

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  1. Actually, it's not just in matters of immigration where state of domicile will matter if the Supreme Court throws out Section 3 of DOMA. I'd guess all federal recognition will depend on where you live, not where you were married. We'll see ...

    Posted by: K in VA | Feb 6, 2013 12:06:11 PM

  2. For a full discussion of the queston see:

    Not an easy read, but beats the rather far off-the-point discussion of In re Jose Mauricio Lovo-Lara above.

    Posted by: Bingo | Feb 6, 2013 12:12:20 PM

  3. Your article just shows why it is very important that the Uniting American Families Act introduced yesterday by Rep Nadler ( and soon by Sen Leahy MUST be included in comprehensive immigration reform (CIR) bill. Our country's principle on immigration policy is about family reunification and LGBT Families are families too!

    Posted by: amos lim | Feb 6, 2013 12:38:40 PM

  4. Great article as usual Ari. I had a question in general about what might happen if we win both the DOMA and Prop 8 cases. I hope this is the correct place to post such inquiries. Imagine we see the best case scenario, and not only does the court overturn DOMA completely, they also rule sexual orientation is a protected class and should receive the highest level of protection from the Constitution.

    These pending cases have been compared to Brown v Board of Education and Roe v Wade. Those two cases lead to huge legal and cultural changes regarding civil rights. However, both cases lead to pushback from conservative states not ready to make the changes the Supreme Court was asking of them. In response to these decisions, we saw states passing laws to restrict the legal victories women and people of color had won.

    The same states which had/have problems with those two decisions will definitely have problems with full equality for LGBT people. What type of legislative reactions do you think we could see? Do you think any state would go as far as getting rid of marriage altogether? Do you think states would pass laws saying government employees do not have to do anything involving gay marriage? Are there any other possible moves state legislators could do to counter act our possible victory at the Supreme Court?

    While these two cases could significantly advance gay rights in this country, I doubt our legal battles will be over soon. I would love to read your thoughts on the matter.

    Posted by: joeyhegele | Feb 6, 2013 12:41:06 PM

  5. Deport all illegal aliens.
    Secure the border.
    Make individual decisions on immigration based on needed professions (like doctors and scientists, not chefs and tomato pickers).
    Give LRA and PTC to foreigners who invest a half million dollars or more.
    Stop chain migration.
    Reverse Kim Wong Ark and restore the intended meaning of the 14th amendment.

    Posted by: David Hearne | Feb 6, 2013 1:10:12 PM

  6. This isn't anything new. Problems with choice of law have existed for over hundred years when it came to divorce and other differences in marriage law.

    Some laws are written to only recognize a marriage valid in the place of residence (like Veteran's Benefits), but others recognize all marriages. It depends.

    Posted by: Steve | Feb 6, 2013 1:17:52 PM

  7. I think there's a somewhat easy solution to deal with the whole state of celebration vs state of domicile issue, should the issue arise post-DOMA. Get married in a foreign country where same-sex marriage is legal like Canada. If the federal government starts recognizing same-sex marriages for the purpose of visa sponsorship, then the legal marriage document issued by the government of a foreign country should be treated as legal by the US government in similar fashion to visa sponsorship by opposite-sex binational couples.

    Posted by: gayalltheway | Feb 6, 2013 1:28:51 PM

  8. Bi-national couples have always been a sticky situation even for straights with children involved.

    Ultimately the issuing of marriage licenses is a "states' rights". I find it amusing that Ari is quick to dismiss Kansas as some backwater state when MA only allowed its residents to get married in the state until 2008.

    Posted by: Sam | Feb 6, 2013 1:38:51 PM

  9. Support international co-dependents!

    Posted by: David Hearne | Feb 6, 2013 1:58:07 PM

  10. The sad reality is that this immigration law will be abused and will lead to even more deception. I live in Miami, I should know. This is no excuse not to grant same sex couples their right, but it is a concern that needs to be addressed in the law and its enforcement.

    Posted by: Jay | Feb 6, 2013 2:32:54 PM

  11. If a Canadian marriage won't work, there is always the Hetty Green precedent: domicile is a matter of intent. We can all become New Yorkers regardless of where we pillow our heads at night.

    Posted by: Rich | Feb 6, 2013 4:01:54 PM

  12. Okay, so what if that bi-national couple from Nebraska that runs into immigration issues simply picks up and moves to Iowa? Do the immigration issues automatically go away? Can the American spouse then sponsor the French spouse for citizenship and, afterward, return to Nebraska? Of course, it's difficult to move (and impossible for some), but moving to a marriage equality state is much easier than relocating to another country or being separated.

    Posted by: Jere | Feb 6, 2013 4:09:50 PM

  13. Re moving to a marriage equality state.

    Folks who need to do this have had years to get legal advice and think about it. Yes, some can't relocate for all sorts of reasons. But it's hard to wonder about those that could manage the relo. MA has had same-sex marriage for 8 yrs and like 9 months now. And immigration cases drag on. Time to get a move on.

    LOTS of other legal questions if DOMA sec 3 goes away. This seems like one of the easier ones.

    For example. A case like Windsor's. A married lesbian couple moves to Nebraska. One dies. Does the IRS tax the estate because it doesn't recognize that the survivor is a widow? Yup. IRS goes by "were you legally married in the state in which the decedent was domiciled?"

    Anyone who can move should. Waiting for a warm climate option?

    Posted by: Chuckles | Feb 6, 2013 4:54:59 PM

  14. Jere: Yes, they could move to Iowa. Once the spouse gets a green card, they could probably move anywhere in the US.

    Ari: Doesn't the Respect for Marriage Act specifically state that the federal government will recognize any marriage that at least one state recognizes as valid? I think that would solve all these issues.

    Posted by: Matt N | Feb 6, 2013 4:56:34 PM

  15. Hi! I am so grateful to read the articles on your site. Please keep up the excellent and thoughtful work!! It has been hard to get legal insight into the situation of all binational couples since we all have such different situations. We should intensify our fight to pass the UAFA as soon as possible to remedy our situations. Would the UAFA help binational couples both in states where they can't marry and in states where they can marry? We should make a concerted effort for people to know about the bill. When I ask people if they have ever heard of it, they say no.

    Posted by: Carrie | Feb 6, 2013 7:12:55 PM

  16. Immigration is federal. For the purposes of immigration, the validity of the marriage is the question, not where you live. With s3 of Doma gone, anyone legally married has the same right to apply for an immigration visa for a spouse or fiance

    Posted by: Cathy Johansen | Feb 6, 2013 8:00:53 PM

  17. Yes, immigration is federal, but in the past, the federal government has refused to recognize a marriage that is against the public policy of the state that the couple resides in. This is the very point that Ari is making in his article.

    Thus, simply getting rid of DOMA may not change anything for couples who live in states that are strongly anti-same-sex marriage.

    The Respect for Marriage Act would fix that, as it would force the federal gov't to recognize any marriage that is legal in at least one state.

    Posted by: Matt N | Feb 6, 2013 10:53:53 PM

  18. For all same-sex binational couples, this piece by immigration attorney, Lavi Soloway, is a must read and the DOMA Project is where to go for accurate information on what to expect from a post-DOMA universe.

    Posted by: Brynn Gelbard | Feb 7, 2013 12:44:36 AM

  19. Thank you Brynn. Ari, you don't know what you are talking about. Full stop. Please stop misinforming people.

    Posted by: Dan | Feb 7, 2013 12:13:41 PM

  20. @dan: with respect, mr soloways argument on his webpage is just that, an argument. it is a good argument, and an argument that he would make in a brief before a court, hoping to win. it is by no means a settled area of the law. @brynn sent us to a particular interpretation of the law that would have to be argued. nothing in my post is inconsistent with mr. soloways argument, which is on one side of the issue. i hope a court ends up agreeing with him. and, please show respect on this forum.

    Posted by: Ari Ezra Waldman | Feb 7, 2013 12:17:39 PM

  21. I appreciate the insight from both writers on the post-DOMA possibilities. It is important to think critically about the different realistic outcomes for those of us whose lives and decisions are based on this. Each author presented possibilities which may occur. I like to know not only the best-case scenario, but also the worst case and the middle of the road scenario. Thanks to all who contribute thoughts and ideas to this complicated issue. Hearing all views helps us to iron out what we really need to do.

    Posted by: Carrie | Feb 7, 2013 6:22:01 PM

  22. @Ari -- I was respectful. I'm just not buying what you're selling.

    Posted by: Dan | Feb 7, 2013 6:30:18 PM

  23. Ari,

    What about non-permanent residents? My husband and I are both from Belgium, married in Belgium. He got relocated to the US for his work and obtained a H1-visa. If DOMA dissapears, does this mean that the Federal Gouvernement will recognize our marriage? So will I be able to obtain a H4 visa?

    Hope you know the answer.


    Posted by: Vince | Mar 27, 2013 9:37:10 PM

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