By Julie Oliver-Zhang, Esq.

February 26, 2014

“Equal treatment of all individuals under the law is not merely an aspiration, it is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”

Our LGBT clients often ask our attorneys if they can get married in their home states and then apply for immigration benefits, such as a green card or non-immigrant visas for their spouses.  Often, the answer to that question is “no”, because the majority of the states still have not legalized gay marriage.  We counsel them to get married in one of the 17 states and the District of Columbia that have recognized legal gay marriage and then file for legal immigration status for their spouses.  We also have to be careful of civil unions and domestic partnerships because they may not be legal marriages in the eyes of the USCIS.  This contrived work-around is not only an inconvenience, but a testament to the broad legal inconsistencies within the United States when it comes to the issue of gay marriage and immigration.  However, the prejudicial laws against gay, lesbian, bisexual, and transgender same-sex couples have been falling like dominoes in the series of lawsuits filed across America challenging these unjust same-sex marriage bans.  Since December of 2013, Federal Judges in Utah, Oklahoma, Virginia, and Texas have all invalidated the same-sex marriage bans in their states as unconstitutional.  As the momentum builds, these decisions are now all stayed and awaiting the decision of the Supreme Court.  After Windsor, the Supreme Court may be hard-pressed to hedge on a clear ruling on the existing same-sex marriage bans across the United States.

Texas Ban Revoked:  Tradition is no Excuse to Deprive Gays of Dignity in Marriage

On February 26, 2014, federal Judge Orlando L. Garcia held that “Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process.”  The gay couples involved in the case, De Leon, et al., v. Perry, et al., No. SA-13-CA-00982-OLG, were in loving, committed relationships for years.  Three of the plaintiffs served in the military, and one was an honorably retired Major.  The married lesbian couple, de Leon and Dimetman, had to undergo expensive legal proceedings in order to become parents.  Texas law considered the legal spousal status conferred to those gay marriages sanctioned in other states to be void.  Although de Leon was their child’s biological mother, Dimetman had to formally adopt the child in order to become a legal parent.

The Texas federal court recognized marriage as a fundamental right.  By denying LGBT couples the fundamental right to marry, Texas denied their relationship of the same status and dignity as those who are permitted to marry.  Gay and lesbian married couples have suffered real injuries, including “far-reaching legal and social consequences, along with the pain of humiliation, stigma, and emotional distress.”  The Court also defeated the argument of tradition, and explained that “tradition alone cannot justify the infringement on individual liberties.”  Same-sex married couples are entitled to the same legal, social, and financial benefits of marriage that opposite-sex couples enjoy.  The Court stated:  “Equal treatment of all individuals under the law is not merely an aspiration, it is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”

Setting a Trend of LGBT Equality in Immigration and Other Rights

     The Texas decision follows on the heels of Attorney General Eric Holder’s historical policy memorandum issued on February 10, 2014, ensuring that post-Windsor, federal benefits, including immigration benefits such as green card and non-immigrant visa benefits, are extended equally to all legally married same-sex couples.  All levels of the Department of Justice employees are instructed to the equal treatment of married gay, lesbian, bisexual, and transgender couples:  “The Department is committed to ensuring equal treatment regardless of sexual orientation, and to using every tool and legal authority available to combat discrimination and safeguard the rights of all Americans.”

This powerful, indubitable policy statement illustrates President Obama’s clear mandate on eliminating unconstitutional discrimination against same-sex couples.  In recent remarks, Attorney General Holder boldly counseled state attorney generals to actively refuse to challenge a federal court’s decision invalidating same-sex marriage bans if they believe the ban to be unconstitutional.

The latest Texas decision in one of the most conservative jurisdictions in America is a huge victory for the LGBT community.  It is perhaps imaginable that in the near future, lawyers will no longer have to advise gay and lesbian couples who require immigration benefits like green cards or cancellation of removal proceedings to marry in another state.

As always, if you are seeking assistance with gay immigration issues, please contact our LGBT attorneys at Oliver-Zhang Law for a free consultation.