We see it quite frequently in our country: the interrelationship of law and politics producing a tug-of-war between lawmakers and lawyers, with each side trying to control the narrative of how law affects everyday folks. Think Frank Underwood and Remy Danton, for you House of Cards fans. But occasionally, we get to see a third, often volatile, element thrown in to the mix. When law, politics, and social policy intersect, the result can quite often be landscape-altering. Such was the case with Brown v. Board of Education in 1954 and Roe v. Wade in 1973. Each decision, while fraught with political controversy, would forever change the way that historically underrepresented groups would be perceived by the law.
That brings us to the 2013 U.S. Supreme Court case of United States v. Windsor. The Court’s decision, a 5-4 majority (based primarily along party lines), rendered the 1996 Defense of Marriage Act (DOMA) unconstitutional. In practical terms, the ruling essentially lifted the federal ban on recognizing same-sex marriages. This caused the predictable political ripples in Washington. But more importantly, it changed the way the law, particularly in an immigration context, would perceive same-sex couples.
The Immigration and Nationality Act (INA) allows for a relatively speedy adjustment to green card status for immediate relatives (which include spouses, unmarried children under the age of 21, and, in some cases, parents) of U.S. citizens. This policy stands in stark contrast to the long wait-lists for other relatives of U.S. citizens. So, if a nonimmigrant spouse of a U.S. citizen seeks a green card for permanent U.S. residence, the barriers to entry are relatively minimal from a wait-list perspective. Clearly, there’s a distinct advantage to being defined as a “spouse” of a U.S. Citizen.
So how did DOMA affect the same-sex “spouse”? Prior to Windsor, same-sex couples who wed in a state or country that recognized same-sex marriages were still denied the various marriage benefits associated with U.S. federal law, which included the benefit of “immediate relative” status for immigration purposes. The windfall of Windsor is that same-sex spouses now do receive “immediate relative” designation so long as they marry in a state or country that officially recognizes same-sex marriages. Furthermore, Windsor’s windfall applies regardless of the views held by the couple’s state of residence. Windsor, though not an unfettered referendum on same-sex rights, has gone a long way towards redefining the spousal relationship.
Where does all of this leave Washington? Undoubtedly, still engaging in the ubiquitous tug-of-war over the final say on same-sex marriage. President Underwood and Remy Danton would be proud.