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Bloggings: Same-Sex Spouses' Right to Equal Protection, by: Danielle L. C. Beach-Oswald

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Same sex marraige

Recent polls and statements by
political leaders including President Obama demonstrate a growing trend in
favor of legalizing same-sex marriage. As of this writing, same-sex marriages
are nationally recognized in 13 countries worldwide. Nine states and the District of Columbia
allow gay marriage. Nevertheless, current laws in the majority of U.S. states and
at the federal level continue to deny same-sex married couples a wide range of
rights and privileges enjoyed by couples in 'traditional' opposite-sex marriages.
In this context, this week the United States Supreme Court heard two cases
challenging the constitutionality of state and federal prohibitions on
recognizing same-sex marriage, the outcomes of which will have major
implications for bi-national same-sex spouses.

On March 26, the Court heard oral
arguments in the case of Hollingsworth v. Perry, which challenges California's Proposition
8. In 2008, California
voters' passage of Proposition 8 overturned a State
Supreme Court ruling legalizing same-sex marriage and briefly allowing same-sex
couples to marry in California. Later federal rulings overturned Proposition 8,
but same-sex marriages have so far not been reinstated, pending a decision by
the nation's highest court. The Supreme Court could rule that same-sex couples
have a right to marriage equal to that of opposite-sex couples, thus
potentially overturning anti-same-sex-marriage laws in every state across the
country. This approach, if taken, would be a huge success for marriage
equality, thereby creating uniformity amongst states in granting same-sex
couples equal rights under the law. However, the Court could also issue a more
narrow ruling limiting the right to marry only to California, or more broadly
to states including California that allow civil unions granting every right
conferred by marriage without the title itself. Alternately, the court could
deny standing to Proposition 8's proponents (California's governor declined to
appeal the lower court ruling) on the grounds that they are not directly harmed
by the legalization of same-sex marriage and therefore are ineligible to bring
the case to begin with, in which case same-sex marriage could be legalized in
California but would not be extended to any other state. Lastly, the court
could deem Proposition 8 legal, thereby reinstating the law's ban on same-sex
marriage in California.

On March 27, the Court heard the
second of the two marriage equality cases. United
States v. Windsor
was brought as a challenge to the federal Defense of Marriage Act (DOMA), which
was signed into law by President Bill Clinton, who recently argued in a
Washington Post op-ed that he now believes the law is unconstitutional and
should be struck down. The main argument against DOMA in the Windsor case is that the federal government
is denying same-sex couples equal protection under the law by its failure to
grant federal recognition and benefits to same-sex spouses who were wed in
states where same-sex marriage is legal. Just as California's governor has
opted not to defend Proposition 8, the Obama Administration has stated that it
believes DOMA (and Proposition 8) unconstitutional and has opted not to defend
the law, but nevertheless requested that the issue was important enough that
the Supreme Court should review the case. As a result there is a question of
standing in United States v.
Windsor as
well, but most observers believe that the Court will make a ruling one way or
the other in this case.

According to the gay rights
organization Immigration Equality, current regulations under DOMA mean that
more than 1,100 federal programs and benefits are unavailable to married
same-sex couples in the United
States. The most important issue at stake
from an immigration standpoint, however, is that citizenship rights cannot
currently be extended to a non-citizen by virtue of his/her marriage to a
same-sex American spouse. In effect, U.S. citizens with same-sex
partners have been denied the right of petitioning for their spouses and have
been largely powerless when their spouses face deportation. Such citizens have
had to choose between remaining in the States without their husband or wife or
leaving the U.S.
in order to stay together. Should the Court strike down the section of DOMA
currently under review, Americans in same-sex marriages with non-citizens would
for the first time be able to sponsor their husbands and wives for legal status
and eventual American citizenship. A narrow ruling by the Supreme Court
striking down DOMA would allow same-sex marriage only in those states where courts
have also deemed its prohibition unconstitutional, but a broader decision could
void the unjust effects of DOMA countrywide.

Assuming the justices grant
standing in either Hollingsworth v. Perry or United
States v. Windsor,
the ideologically divided court's deciding vote in both cases is expected to
rest with Justice Anthony Kennedy. The outcome of the cases will not be known
until the Court's decisions are released (likely sometime in June). However,
media reports based on this week's proceedings have suggested that Kennedy,
along with the Court's 'liberal wing,' appears ready to strike down the portion
of DOMA currently being challenged, ruling it unconstitutional on equal
protection grounds.  I remain hopeful that the day will soon come when U.S. citizens
in same-sex partnerships will be allowed equal rights under federal law and
finally be able to petition for their non-citizen husbands and wives. It has
been long overdue, but until DOMA's ban is overturned, family-based immigration
laws will continue to be unjustly denied to U.S. citizens in same-sex

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