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NJ Immigration Issues, DOMA and Same-Sex Couples

10
Mar
2011

by in Immigration

The Justice Department made an important immigration announcement this week. They stated that President Obama has decided that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The administration will therefore stop defending the law in immigration and other courts.

After considering litigation originating from the Second Circuit Court of Appeals, which has no real precedent for what standard to properly apply to cases involving same-sex couples, the Obama administration decided that such cases should be decided by a higher standard of review than that which has previously been applied in other jurisdictions. However, the proclamation also said Section 3 of DOMA will remain in force until either it is repealed or “there is a final judicial finding that strikes it down,” and until such time “the Executive Branch will continue to enforce the law.”

Section 3 of DOMA, 1 U.S.C. § 7, states that under federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” USCIS and the former INS both interpreted this statement to mean that a same-sex spouse cannot be granted immigration benefits by virtue of his or her marriage to a U.S. citizen or green card holder.

This is great news for those who support the rights of gay and lesbians. While section 3 will remain the law until a court declares it to be unconstitutional, this opens up a path not before available to immigrations who seek to obtain their benefits through a same-sex marriage to a U.S. Citizen.

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