On June 26, 2013, the Supreme Court of the United States struck down section 3 of the Defense of Marriage Act (DOMA).*  United States v. Windsor, 570 U.S. ___ (2013).  In so ruling, the Court held that it is unconstitutional for the federal government to deprive married same-sex couples of the rights and privileges it grants to married opposite-sex couples.

The decision puts an end to a long history of discriminatory treatment of GLBT persons by USCIS, DHS, and immigration courts around the country.  As early as 1952, the U.S. Congress made homosexuality a ground for exclusion.  (See Act of June 27, 1952, §212(a)(4); 66 Stat. 163, 182.)  Initially, homosexuals were excludable as those “afflicted with psychopathic personality… or mental defect.”  (As noted in Boutilier v. INS,  387 U.S. 118, 120 (1967), Congress intended these terms to encompass homosexuality.)  In 1965, to explicate its intent, Congress amended §212(a)(4) to exclude those exhibiting “sexual deviation”.  The ban on homosexual non-citizens remained until 1980, when Congress amended INA §212(a).  This initiative initially sparked hope that same-sex couples would soon receive equal treatment in their family-based visa petitions.  Just six years later, however, President Clinton signed DOMA into law.

The Windsor decision is a significant victory for equal protection, and its impact is particularly obvious in the immigration context.  After almost 70 years of discriminatory treatment, GLBT persons will be treated fairly by our immigration system.   U.S. citizens or lawful permanent residents in same-sex marriages can petition for a spouse’s “green card”, employment authorization document, and other immigration benefits.  As a long-time activist for marriage equality, I look forward to representing married couples in the GLBT community as they embark on their visa journeys.

*Contrary to popular belief, the Court did not strike down DOMA in its entirety.  Rather, the Court only invalidated the portion of the Act pertaining to the federal government.  Still good law is the portion of DOMA that allows state governments to discriminate against couples in same-sex marriages.  Section 2 of DOMA allows states to ignore the “full faith and credit clause” of the Constitution as it relates to same-sex marriages.  Accordingly, even if a same-sex couple marries in a state that recognizes marriage equality, another state need not treat the couple as legally married.  Challenges to what remains of DOMA are already in the works- the ACLU has filed suits on behalf of couples in Pennsylvania, North Carolina, and Illinois in the hopes that the Supreme Court will review the constitutionality of Section 2.