The United States policy regarding same-sex immigration denied couples in same-sex relationships the same rights and privileges afforded different-sex couples based on several court decisions and the Defense of Marriage Act (DOMA) until the U.S. Supreme Court ruled Section 3 of DOMA unconstitutional in United States v. Windsor on June 26, 2013. [1] [ unreliable source? ]
In 1967, the Supreme Court of the United States ruled that a homosexual individual could be deported from the United States on the grounds of "psychopathic personality" in Boutilier v. Immigration and Naturalization Service , based on a 1952 statute. [2] This was abrogated in the Immigration Act of 1990, which rejected sexual orientation as a qualification for immigration. [3]
In 1982, the United States Court of Appeals for the Ninth Circuit ruled in Adams v. Howerton , 673 F.2d 1036 (9th Cir. 1982), that for the purposes of immigration law the term "spouse" as used in the Immigration and Nationality Act referred to an opposite-sex partner, and that the definition met rational basis review. It was one of the first lawsuits to seek recognition of a same-sex marriage by the federal government. [4] The Supreme Court declined to hear an appeal of that decision. [5]
In 2011, before the federal government recognized same-sex marriage, one study estimated that the U.S. had about 28,500 same-sex couples in which only one person was a U.S. citizen and another 11,500 same-sex couples in which neither person was a citizen. [6]
Beginning in 1996, section 3 of the Defense of Marriage Act (DOMA) prevented the federal government from recognizing the marriages of same-sex couples on the same basis as the marriages of different-sex couples. Under DOMA, persons in same-sex marriages were not considered married for immigration purposes. U.S. citizens and permanent residents in same-sex marriages could not petition for their spouses, nor could they be accompanied by their spouses into the U.S. on the basis of a family or employment-based visa. A non-citizen in such a marriage could not use it as the basis for obtaining a waiver or relief from removal from the U.S. [7] The United States Citizenship and Immigration Services (USCIS) reaffirmed its policy of denying green card applications in such cases in March 2011. [8]
With respect to obtaining a visitor's visa, the Bureau of Immigration rules treated bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners". [9]
Challenges to USCIS decisions met with mixed results, [10] sometimes succeeding only by enlisting the support of an important legislator. [11] There were a number of legal challenges to DOMA as applied to immigration law. In June 2012, immigration rights advocate Lavi Soloway said that recent legal maneuvers by the Board of Immigration Appeals (BIA) suggested it was "essentially setting the stage for being able to approve [green card] petitions in a post-DOMA universe." [12]
Legislation to establish immigration equality, the Uniting American Families Act (UAFA), has been introduced in the U.S. Congress since 2000. [13] The latest version of the legislation, H.R. 1537, S. 821, would amend the Immigration and Nationality Act to permit permanent partners of United States citizens and of lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and of lawful permanent residents. It would also penalize the use of fraudulent permanent partnerships to evade immigration law and provide for the review of a sponsored partner's legal immigrant status if the partnership ends within two years. At the end of the 112th Congress in January 2013, UAFA had 144 cosponsors of UAFA in the House of Representatives and 29 in the Senate. [14] [15]
Since the legislation was first introduced, it has been expanded to provide rights to the children or stepchildren of the foreign-born partner, and has been included as Title II of the Reuniting Families Act (H.R. 1796), a broader immigration reform bill, last introduced in the United States House of Representatives on May 6, 2011, by Representative Michael Honda (D-CA). [16]
Advocates for the legislation have identified 22 countries that recognize same-sex couples under their immigration law, including France, Germany, Israel, and the United Kingdom. [17] [18]
The Defense of Marriage Act did not provide a legal definition of man or woman. [19] [20] Until 2002, USCIS tended to recognize marriages that included a transgender partner if those marriages were considered valid in the jurisdiction where the marriage was established. Beginning in 2002, USCIS rejected all applications of couples in which one partner was transgender, [21] which became formal policy in 2004. [22] Later that year, the Board of Immigration Appeals (BIA) rejected the policy in a non-precedential decision. [23]
In 2005, the precedential ruling in In re Lovo-Lara, [24] BIA established a precedent that invalidated the 2004 policy of rejecting all marriage applications in which one of the partners was transgender. That ruling stipulated that USCIS had to determine whether a marriage was valid in the location where it was established as well as in the location where the couple resided. [24] The ruling of the BIA was made official in 2009 [25] and revised in 2012. Under these rules, immigration first has to determine whether the marriage is a heterosexual or same-sex marriage in the state the couple enjoined the marriage, then the same for the state the couple resides in, and finally they have to determine whether the marriage is valid under the DOMA. Although this resolved the issue of immigration for heterosexual couples from states and countries where they could get married, same-sex couples remained barred from immigration based on marriage just as other same-sex couples.
The rules let to the advice from lawyers to postpone transitioning in order to gain permanent residence based on marriage when the couples would be a same-sex couple after transitioning even when they have a valid heterosexual marriage. In 2012, this approach was challenged by a same-sex couple who got married in Texas in 2010 where they are considered a heterosexual couple under the ruling in Littleton v. Prange. Their petition was originally rejected by immigration, but in January 2013, in a non precedential decision, the Board of Immigration Appeals remanded the case back to USCIS with instructions to apply the rules set forth in In re Lovo-Lara, [24] and determine whether the couple had a valid marriage under the laws of the State of Texas. [26] The case was held up by USCIS until the US supreme court struck down Section 3 of DOMA in June 2013.
Once the U.S. Supreme Court ruling in United States v. Windsor ended enforcement of Section 3 of DOMA in June 2013, couples in which a partner is transgender are treated the same as all other couples for the purposes of immigration.
Immigration Equality , founded in 1994, is an advocacy organization working for equal rights for LGBT and HIV-positive individuals with respect to policies maintained by the U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service). [27] [28] [29]
On December 11, 2012, more than 50 LGBT advocacy groups and immigration rights groups asked President Obama to put a hold on immigration cases involving Americans seeking legal residency visas for foreign-born spouses of the same sex, pending Supreme Court action in United States v. Windsor, a case which challenges the constitutionality of DOMA section 3. [30]
According to Immigration Equality, an advocacy organization, in 2009 there were roughly 36,000 bi-national same-sex couples unable to secure green cards for one partner. [31] [32] The census recorded 594,391 same-sex couples, six percent composed of one citizen and one non-citizen. [33] A 2006 report compiled by Human Rights Watch and Immigration Equality documented the cases of couples who did not report their participation in a same-sex relationship to the 2000 U.S. Census because they feared anti-LGBT bias in the immigration process or because their foreign partners were living in the United States illegally. [34]
The Supreme Court's decision in United States v. Windsor on June 26, 2013, ruling Section 3 of DOMA unconstitutional was recognized as ending the disparate treatment of same-sex and different-sex couples in matters of immigration. Before the decision Senator John McCain said: "If the Supreme Court throws out DOMA, then those rights are gonna be there." [35] Following the decision, Senator Patrick Leahy announced he no longer saw a need for legislation addressing the needs of same-sex couples under immigration law. [36] Department of Homeland Security Secretary Janet Napolitano said: "[W]e will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws". [37]
On the day Windsor was decided, a judge suspended deportation proceedings in the case of the Colombian husband of an American man. [38] Two days later, a Florida man learned that his application for a green card for his Bulgarian husband had been approved. [39]
Former U.S. Attorney General Alberto R. Gonzales and David N. Strange, an immigration lawyer, called Napolitano's action "not consistent with the law". They cited the Windsor decision's own emphasis on same-sex marriages as defined by the states for state purposes, while immigration is an entirely federal matter. They noted that the Ninth Circuit's decision in Adams v. Howerton (1982), which the same court cited in 2010, held the word spouse as used in immigration law can not be read to mean same-sex spouse. They advised that "Congress ... should also take up the issue of immigration benefits for same-sex couples, to provide clarity given the legal uncertainty around this matter. The Supreme Court has not settled this question, and the Obama administration should not act as though it has." [40]
The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton on September 21, 1996. It banned federal recognition of same-sex marriage by limiting the definition of marriage to the union of one man and one woman, and it further allowed states to refuse to recognize same-sex marriages granted under the laws of other states.
The availability of legally recognized same-sex marriage in the United States expanded from one state (Massachusetts) in 2004 to all fifty states in 2015 through various court rulings, state legislation, and direct popular votes. States each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognize marriage as a fundamental right guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as first established in the 1967 landmark civil rights case of Loving v. Virginia.
GLBTQ Legal Advocates & Defenders (GLAD) is a non-profit legal rights organization in the United States. The organization works to end discrimination based on sexual orientation, HIV status, and gender identity and expression. The organization primarily achieves this goal through litigation, advocacy, and education work in all areas of LGBT rights and the rights of people living with HIV. In addition, GLAD operates a legal information line, GLAD Answers, where LGBTQ & HIV+ residents of New England can receive attorney referrals and information about their rights. The organization changed its name to GLBTQ Legal Advocates & Defenders in February 2016.
Lesbian, gay, bisexual and transgender (LGBT) rights in the United States rank among the highest in the world, with public opinion and jurisprudence changing significantly since the late 1980s. However, LGBT rights have continued to face legal attacks from elements of the political right, particularly on a state level.
The legal status of same-sex marriage has changed in recent years in numerous jurisdictions around the world. The current trends and consensus of political authorities and religions throughout the world are summarized in this article.
The Uniting American Families Act is a U.S. bill to amend the Immigration and Nationality Act of 1952 to eliminate discrimination in immigration by permitting permanent partners of United States citizens and of lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and of lawful permanent residents and to penalize immigration fraud in connection with permanent partnerships. If the partnership ends within two years, the sponsored partner's immigrant status would be subject to review.
Same-sex unions in the United States are available in various forms in all states and territories, except American Samoa. All states have legal same-sex marriage, while others have the options of civil unions, domestic partnerships, or reciprocal beneficiary relationships. The federal government only recognizes marriage and no other legal union for same-sex couples.
Immigration equality is a citizens' equal ability or right to immigrate their family members. It also applies to fair and equal execution of the laws and the rights of non-citizens regardless of nationality or where they are coming from. Immigration issues can also be an LGBT rights issue, as government recognition of same-sex relationships vary from country to country.
Nepal does not recognize same-sex marriages, civil unions, domestic partnerships, or any other form of recognition for same-sex couples. In 2011 and 2012, as the country was undergoing a political transition, there was an attempt to add LGBT-inclusive language to the proposed constitution. However, negotiations among political factions failed in spring 2012 and the drafting of a new constitution was placed on hold until new elections were held. A constitution was approved by the Constituent Assembly on 16 September 2015, and while it includes several provisions pertaining to the rights of LGBT people, it does not address same-sex marriages.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Louisiana may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Louisiana, and same-sex marriage has been recognized in the state since June 2015 as a result of the Supreme Court's decision in Obergefell v. Hodges.
Same-sex marriage in Ohio has been legal since the U.S. Supreme Court's ruling in Obergefell v. Hodges, a landmark decision in which the court struck down Ohio's statutory and constitutional bans on same-sex marriage on June 26, 2015. The case was named after plaintiff Jim Obergefell, who sued the state of Ohio after officials refused to recognize his marriage on the death certificate of his husband. Same-sex marriages were performed in Ohio beginning shortly after the Supreme Court released its ruling, as local officials implemented the order.
The Respect for Marriage Act is a landmark United States federal law passed by the 117th United States Congress and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. federal government and all U.S. states and territories to recognize the validity of same-sex and interracial civil marriages in the United States, and protects religious liberty. Its first version in 2009 was supported by former Republican U.S. Representative Bob Barr, the original sponsor of DOMA, and former President Bill Clinton, who signed DOMA in 1996. Iterations of the proposal were put forth in the 111th, 112th, 113th, 114th, and 117th Congresses.
This is a list of notable events in the history of LGBT rights that took place in the year 2010.
Gill et al. v. Office of Personnel Management, 682 F.3d 1 is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challenging the constitutionality of section 3 of the Defense of Marriage Act (DOMA), the section that defines the term "marriage" as "a legal union between one man and one woman as husband and wife" and "spouse" as "a person of the opposite sex who is a husband or a wife."
This is a list of events in 2011 that affected LGBT rights.
United States v. Windsor, 570 U.S. 744 (2013), is a landmark United States Supreme Court civil rights case concerning same-sex marriage. The Court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment.
Adams v. Howerton, 673 F.2d 1036, cert. denied, 458 U.S. 1111 (1982) is a decision from the United States Court of Appeals for the Ninth Circuit that held that the term "spouse" refers to an opposite-sex partner for the purposes of immigration law and that this definition met the standard at the time for rational basis review. It was the first U.S. lawsuit to seek recognition of a same-sex marriage by the federal government.
This is a timeline of notable events in the history of the lesbian, gay, bisexual, and transgender community in the United States.
Hong Kong does not recognise same-sex marriages or civil unions. However, same-sex couples are afforded limited legal rights as a result of several court decisions, including the right to apply for a spousal visa, guardianship rights and joint custody of children, and spousal benefits for the partners of government employees.
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