Revisiting the Meaning of Marriage: Immigration for Same-Sex Spouses in a Post-Windsor World
11 Pages Posted: 8 Sep 2013 Last revised: 21 Oct 2013
Date Written: September 7, 2013
When the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of lesbian, gay, bisexual and transgender (LGBT) families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration and/or citizenship purposes? This essay describes and supports the Obama administration’s adoption of a uniform place-of-celebration rule in response to the first question. It then briefly discusses the questions of legal marriage alternatives and of parent-child relationship recognition, suggesting possible solutions.
Keywords: Windsor, United States v. Windsor, U.S. v. Windsor, DOMA, Defense of Marriage Act, Section 3, LGBT, lesbian, gay, bisexual, transgender, marriage, civil union, domestic partnership, same-sex, spouse, parent, child, parent-child, presumed, citizenship, immigration, INA, nationality
JEL Classification: K1, K10, K19
Suggested Citation: Suggested Citation