Reading (into) Windsor: Presidential Leadership, Marriage Equality, and Immigration Policy

Abstract

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as opposite-sex ones is a model of presidential leadership on what would otherwise be a controversial issue. While some might be concerned that the executive branch is overstepping its bounds by creating a de facto national immigration policy in the absence of specific congressional fiat and in the midst of a robust national debate over marriage equality, President Obama's directive embraces the promise of integrative egalitarianism, the hallmark of our post-Brown equality jurisprudence, by setting forth an inclusive, uniform federal policy that enhances, rather than diminishes, equality for all.

Keywords: immigration, defense of marriage act, marriage equality, integrative egalitarianism, same-sex marriage, Windsor