On May 31, 2012, in what instantly became the landmark case of Commonwealth of Massachusetts v. US Department of Health and Human Services, the 1st Circuit Court of Appeals ruled that the Defense of Marriage Act is unconstitutional on equal protection grounds because there is no legitimate basis for singling out same sex couples who are legally married under state law for denial of federal benefits that are available to heterosexual couples who are also legally married under state law. The court, obviously aware that this issue will be ultimately resolved by a Supreme Court that may not necessarily be friendly to the righrs of same sex couples, decided the case on narrow grounds, namely that the statute contains an invidious form of discrimination against a traditionally unpopular group of people, namely gays and lesbians.
Circuit Judge Michael Boudin, writing of a unanimous three judge panel, refused to hold that there is a constitutional right to same sex marriage, or that denying federal benefits to legally married same sex couples violates the rights of the states under the 10th Amendment. Nor did he hold that DOMA requires either "strict scrutiny" or "heightened scrutiny" two of the most common reasons for invalidating an act of Congress under the Equal Protection clause.
Instead, Judge Boudin wrote::
"To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it provides this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."
Judge Boudin's decision listed a number of ways in which denial of federal benefits adversely affects same sex couples, including tax and social security treatment, among others. However, nowhere did he mention denial of immigration benefits, one of the most important and persuasive of all possible reasons for finding that DOMA contains invidious discrimination against same-sex couples. In the light of this powerful and carefully reasoned decision, there is no reason the the Obama administration to continue to deny immigration benefits of spouses in legal same-sex marriages, at least not unless and until the US Supreme Court rules otherwise.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.