In a stunning policy shift, President Obama announced that the Justice Department will no longer defend a 1996 law that banned recognition of same-sex marriages. The Defense of Marriage Act (DOMA) defined marriage as “a legal union between one man and one woman”. Gays and lesbians argued that the law discriminated against them, by denying them benefits that were available to man\woman marriages (such as social security benefits, inheritance rights, right to visit in hospital, etc.), in violation of the Equal Protection Clause of the US Constitution.
According to Attorney General Eric Holder Jr., “the president and I had concluded that classifications based on sexual orientation” should meet a “rigorous” legal standard, making a crucial provision of the DOMA “unconstitutional”.
The Administration’s recognition that the DOMA is unconstitutional insofar as it unlawfully discriminates against same-sex marriages indicates that the federal government may soon recognize the validity of gay marriages. (There are already several states in the US that do recognize the legality of gay marriages, such as Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and District of Columbia.)
If a gay or lesbian marriage is performed in a state that recognizes same sex marriages, then it would seem that gay and lesbian aliens could be petitioned by their same-sex US citizen “spouse.” After all, if the marriage is legal, gay marriages should be afforded all the rights and benefits of opposite sex marriage, including the right and ability to petition one’s spouse.
I know that there are many gay and lesbian couples who are deeply committed to and in love with each other. However, they have been discriminated against because of their sexual orientation. With this significant policy change, it is possible that immigration policies may soon recognize same-sex marriages. But I would strongly suggest that you seek the advice of a reputable attorney, who can evaluate your situation and advise you on how to proceed. But at least this gives new hope to same-sex couples.
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