Home – The Supreme Court Repeal of DOMA Section 3 and Its Effect on Immigration Law

The Supreme Court Repeal of DOMA Section 3 and Its Effect on Immigration Law


Recently, the Supreme Court found a part of the Defense of Marriage Act (DOMA) unconstitutional. The case, United States v. Windsor, 133 S. Ct. 2675 (2013), actually involves estate taxes, but has direct ramifications on same-sex marriages and permanent residency status for those same-sex spouses. The ruling aligned with the Obama Administration’s desire to equalize federal benefits for same-sex legally married couples, and will cause an increase of permanent residency applications for this population.


In 1996, Congress enacted the Defense of Marriage Act (DOMA). Section 3 of DOMA (1 U.S.C. § 7) states:


“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.”


There has been increasing demand over time from liberal groups to repeal Section 3, due to its effect on any issue pertaining to same-sex marriage. For the same reason, conservatives have staunchly defended this Act. Some believe that as long as the federal government enforces DOMA, it would be difficult for a state-level ruling to supercede it. This relates to same-sex marriage because it has been left to states to decide if this type of marriage is viewed as legally recognizable.


The Facts of U.S. v. Windsor


In 2007, two women residents of New York, Edith Windsor and Thea Spyer, were married in a lawful ceremony in Ontario, Canada, but continued to reside in New York. The State of New York deemed their Ontario marriage valid. Spyer died in February 2009 and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax.


Windsor paid $363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a “surviving spouse.”  Windsor commenced a refund lawsuit in the United States District Court for the Southern District of New York, contending that DOMA violates the guarantee of equal protection as applied to the Federal Government through the Due Process Clause of the Fifth Amendment.  The United States District Court found Section 3 of DOMA unconstitutional on June 6, 2012, and ordered the Treasury to refund Windsor’s tax with interest, with the verdict upheld in Appeals court.


Permanent Residence


This case affects immigration law because it opens the door to same-sex marriage partners considering applying for permanent residency status, since the DOMA statute had prohibited the federal government from recognizing same-sex marriages as the grounds for ANY visa. Janet Napolitano, Secretary of Homeland Security, issued the following statement:


“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”


This seemingly concrete change in policy has been attacked by conservatives, most notably by former Attorney General Alberto R. Gonzales and David N. Strange in an Op-Ed in The New York Times® on July 17, 2013.  They stated that Congress did not intend to confer immigration benefits to same-sex couples, citing Adams v. Howerton, 673 F.2d 1036 (9th Cir 1982) and that the repeal of Section 3 of DOMA does not affect Congress’ almost plenary power to admit or exclude aliens. In 1982, the 9th Circuit held in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) that the homosexual marriage of an American citizen and a non-citizen did not qualify the non-citizen as a spouse pursuant to INA 201(b). At that time, the INS considered homosexuals to be excludable because they were considered to be “afflicted with a psychopathic personality, sexual deviation, or mental defect.” Gonzales’ viewpoint that there is still legal ambiguity concerning same-sex marriage and immigration due to the 1982 case is countered by the fact that the reasons cited by the court in the Adams case have been thoroughly undermined by more recent decisions, including the interpretation of Section 201(b). Congress repealed the statutory exclusion of homosexuals as psychopaths in 1990, and now a number of states recognize same-sex marriage. 


Finally, the argument that Congress has primary power concerning immigration status, as demonstrated by DOMA, cannot reconcile the violation of the 5th Amendment as stated in the ruling in U.S. v. Windsor. The fact that DOMA has now been found to be unconstitutional does not lessen Congress’ power, just levels the playing field in which all marriages are now examined equally concerning potential permanent residency status.


To summarize:


The Obama administration has adopted the view that federal immigration benefits with regard to immigration visa petitions under Section 201(b) extend to same-sex foreign spouses of American citizens, and has moved quickly, since the repeal of DOMA section 3, to put this view into action.

      1. The Obama administration has adopted the view that federal immigration benefits with regard to immigration visa petitions under Section 201(b) extend to same-sex foreign spouses of American citizens, and has moved quickly, since the repeal of DOMA section 3, to put this view into action.
      2. Immigration attorneys should see a sharp rise in applications from same-sex couples who never tried applying in the past due to the knowledge they would be automatically rejected.
      3. This ruling does NOT supercede the fact that any marriage created solely to achieve residency status constitutes fraud.
      4. The U.S. v. Windsor ruling only eliminates the prior discrimination towards same-sex couples in terms of their request for permanent resident status, equalizing their chances for success with opposite-sex couples.  It does not seem to undermine Congress’ power concerning immigration.


Evie P. Jeang is a Taiwanese-American litigator who has been practicing for more than ten years. As founder and managing partner of Ideal Legal Group, Inc., she emphasizes workers’ compensation, labor and employment, family law, immigration and international divorce. Ms. Jeang regularly represents domestic and international companies in business disputes, as well as advises international business owners and executives seeking entrance into the U.S. market on labor, employment, workers’ compensation and contract law. She is licensed to practice in California and New York, and is fluent in Mandarin Chinese and Taiwanese.

Disclaimer: The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.