Comment: DOMA And Immigration - In the wake of New York’s enactment of marriage equality, immigration practitioners in that state (and other states, for clients contemplating a move to NY) are faced with enquiries from same sex couples as to possible immigration benefits for same-sex couples. In light of these enquiries, it may be useful to bear in mind that Attorney General Holder may soon make a constitutional determination on the President’s behalf on this matter, long before the courts get around to opining on the Defense of Marriage Act (DOMA) Section 3 itself. “The decision not to allow I-130 immediate relative petitions based on same-sex marriages is a political not a legal one”, writes Gary Endelman, in an article we carry below, examining the constitutional position of the matter. For attorneys counseling clients on the state of the law, not the likely political course of events, it is important to realize that the President is not in any way bound to enforce DOMA, in fact, the law appears to be that the President is compelled to ignore DOMA Section 3 (since he has already found it to be unconstitutional).
It appears that President Obama had two legally consistent positions open to him: One, he could continue to enforce DOMA, including in the immigration context, while waiting for the courts to decide on its constitutional soundness. Two, he could decline to enforce DOMA, for the reasons given in Mr. Endelman’s article, in part to precipitate action by the Judiciary on the matter. Mr. Obama’s current position – where he continues to enforce DOMA, while declining to defend it in court – is not logically consistent, and may be constitutionally unsound. Here is Rachel Maddow, a news anchor with MSNBC, on Mr. Obama’s clear-as-mud position: "The president does oppose same-sex marriage but he supports equality for gay and lesbian couples in benefits and other issues. Got that? So the line from the administration is that Barack Obama does not want gay people to be allowed to be married, but when gay people can be married and other people are trying to take away that right like in California, he doesn't want the right to be taken away. But, he's not in favor of that right in the first place. You got it? The president is against gay marriage but he is also against constitutional amendments to ban gay marriage, which means that he'd apparently prefer that gay marriage be banned through flimsier tactical means? That's the president's position. Clear as mud.”
Immigration Daily is not a newspaper covering issues concerning equality for people on the basis of their sexual orientation, instead our focus is always on immigration. We have consistently taken positions advocating expanded immigration benefits, and marriage equality is no exception to our general position. While we comment on marriage equality, and constitutional issues connected thereto, our spotlight always remains on immigration law and immigration practice. The day when same-sex bi-national couples will be able to file I-130 positions is not far off, and when we will get to that day is a political decision in the hands of Mr. Obama and Mr. Holder (there appear to be no legal barriers in their path). Stay tuned to Immigration Daily for the latest.
Article: DOMA: What President Obama Can Do Now by Gary Endelman
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