Wednesday, June 26, 2013

AILA's Quick Take On Immigration Implications Of Today's DOMA Decision For Same-Sex Couples

AILA President Laura Lichter explains how today's landmark Supreme Court decision in U.S. v. Windsor opens up immediately a pathway for same-sex couples to receive the same immigration benefits currently enjoyed by opposite-sex couples. As long as a same-sex couple has entered into a lawful marriage in a jurisdiction which legally recognizes their marriage, a U.S. citizen will be able to sponsor his or her same-sex spouse for immigration benefits as a result of today's ruling.

Lichter believes today's ruling is fortuitous given the current immigration reform legislation making its way through Congress. I'm not sure I agree with her. One of the principal sponsors of that legislation, Florida's Sen. Marco Rubio (R), has steadfastly opposed any inclusion of benefits for same-sex couples in his legislation. After today's ruling, Rubio reaffirmed his stance. “I believe the Supreme Court made a serious mistake today when it overstepped its important, but limited role,” Rubio said. "I believe that marriage is a unique historical institution best defined as a union between one man and one woman."

A strong argument can be made that the benefits included in the legislation for persons in the country illegally and their family members will have to be extended equally to same-sex partners in light of today's ruling in order to withstand a legal challenge. Is that a bridge too far for Rubio and other conservatives who currently back the legislation? It will be interesting to see how that debate plays out going forward. The Supreme Court appears to have taken the choice out of the hands of Congress to decide how the current laws on the books for legal immigration are applied. Congress is under no obligation to extend any legal immigration benefits to persons who entered the country illegally, but if it chooses to do so as this legislation proposes to do for more than ten million undocumented aliens, it will need to proceed in a non-discriminatory fashion.

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