Marriage equality with a stroke of a pen

Just last month Sen. Patrick Leahy (D-Vt.), in the interest of achieving the broader goal of comprehensive immigration reform, withdrew his Uniting American Families Act amendment, a provision that would have allowed the foreign spouses of same sex couples to immigrate.  Perhaps the most poignant moment was when Leahy, referring to the Defense of Marriage Act's denial of benefits to same sex couples, wondered, "Will our grandchildren ask why this law was even on the books?"

The immediate effect of the Court’s ruling in U.S. vs Windsor is that it takes marriage equality out of the immigration reform debate.  Simply put, it obviates the need to amend the immigration law so that same sex marriages qualify for immigration benefits.  Bi-national couples facing the specter of separation can focus instead on building a future for themselves and their families. 

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For instance, “Steve” who was a decorated soldier, who put his life on the line for our country in Iraq, recently faced the prospect of being separated by oceans from the partner he chose to spend his life with.  But because of this historic change, he and other Americans like him can now focus on what’s important, building an American family.  

But the battle for immigration equality is far from over.  It now shifts from federal to state law.  As a technical legal matter, to be recognized under federal immigration law, the marriage must be valid in the state in which the couple lives.  If the couple lives in a state that does not recognize same sex marriage, it should also be valid under the federal immigration law, so long as that state has not expressed a sufficiently strong public policy against same sex marriages.   It is less clear what the Supreme Court decision will immediately mean in states that recognize civil unions or domestic partnerships, but not the marriages of same sex couples. 

Today, I’m proud of my country, of the founders who established the three branches of government in order to allow for exactly this sort of decision.  A decision that brings our nation closer to equality for all and turns away from prejudice and injustice.

Leopold is general counsel for the American Immigration Lawyers Association.