A Modest Proposal: To Deport the Children of Gay Citizens, & etc.: Immigration Law, the Defense of Marriage Act, and the Children of Same-Sex Couples

79 Pages Posted: 23 Aug 2010 Last revised: 12 Jun 2013

Scott Titshaw

Mercer University School of Law; Mercer University - Walter F. George School of Law

Date Written: August 18, 2010

Abstract

The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships.

The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can legally join her family in the U.S., be deported, or even qualify as a citizen upon birth abroad. Therefore, if DOMA affected parent-child recognition under the INA, it would have profound implications for the growing number of same-sex couples raising children in U.S. and foreign jurisdictions that recognize their marriages.

This article explores the language, context, legislative history, and purposes of both DOMA and relevant sections of the INA. In the absence of reported cases on point, it reviews opinions in related areas, such as the recognition of children born to concubines or second-wives in polygamous marriages. Finally, it analyzes each relevant section of the INA in turn, concluding that DOMA should not be read to affect parent-child relationships resulting from same-sex marriages under most, or all, circumstances.

Keywords: gay, lesbian, immigration, parent, child, children, same-sex, same sex, marriage, citizen, citizenship, derivative, transmission, sexuality, sexual orientation, DOMA, defense of marriage act, legislative history, INA, CIS, INS, immigration and natinoality act, nationality, 101(b), 301, FAM

JEL Classification: z00

Suggested Citation

Titshaw, Scott, A Modest Proposal: To Deport the Children of Gay Citizens, & etc.: Immigration Law, the Defense of Marriage Act, and the Children of Same-Sex Couples (August 18, 2010). Georgetown Immigration Law Journal, Vol. 25, 2011. Available at SSRN: https://ssrn.com/abstract=1661276

Scott Titshaw (Contact Author)

Mercer University School of Law ( email )

1400 Coleman Avenue
Atlanta, GA 30341-4155
United States

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

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