One clear result if DOMA is struck down: Immigration benefits for gay couples

Liz Goodwin
The Ticket

Earlier this week, we wrote about how if the federal Defense of Marriage Act is struck down by the Supreme Court this summer, it may lead to confusion for same-sex married couples who live or work in the 38 states that specifically bar the recognition of gay marriage.

If DOMA is struck down, same-sex couples who live in the nine states (and District of Columbia) that allow gay marriage will see their marriage recognized at the federal level for the first time ever, qualifying them for more than 1,100 federal statutes that provide benefits and responsibilities to married couples.

But if a same-sex married couple moves from New York, which allows gay marriage, to North Carolina, which does not, would their marriage still be recognized at the federal level for things like tax breaks, Social Security survivor benefits, and the ability to apply for family medical leave from work?

An exchange between the attorney arguing against DOMA, Roberta Kaplan, and Justice Samuel Alito during oral arguments in the case last week suggested that the answer might be no.

Alito asked whether a New York gay couple who moved to North Carolina could qualify for the same federal estate tax breaks that heterosexual married couples enjoy if one spouse dies. "Our position is only with respect to the nine states ... that recognize these marriages," Kaplan responded.

Kaplan's answer suggested that if DOMA is struck down, same-sex married couples who moved to states that don't recognize their union would lose both federal and state recognition of their marriage, effectively causing their union to temporarily disappear.

But since we ran that story, we've been contacted by other legal experts who say they believe many, if not most, federal benefits would still be available to same-sex couples even if they moved away from the state that granted their marriage into one that prohibits gay marriage.

Lavi Soloway, an attorney who represents same-sex married couples on immigration issues, said he expects his clients will be able to apply for green cards for their spouses as soon as DOMA is struck down, no matter which state they reside in. That's because in immigration law, your marriage is recognized if it's valid in the place where it was performed. In estate tax, the specific case Kaplan and Alito talked about, a marriage is considered valid only if it's recognized in the state you are residing in when your spouse dies.

If DOMA is struck down, then, it will probably lead to a case by case analysis of the 1,138 federal statutes that use marriage as a factor to see which benefits gay couples who move away from states that grant same-sex marriages will qualify for. In some of those statutes—such as estate tax exemptions—the place of residence will be the deciding factor, while in others, such as the ability to apply for a green card for your spouse, it will only matter where your marriage license was issued. In cases where it's not clearly spelled out, it will most likely be up to the federal agency to decide whether the marriage is valid or not.

"Whether North Carolina will recognize their marriage or not, they're still married," said Erwin Chemerinsky, founding dean at the University of California Irvine school of law. "Their marriage doesn't disappear."

The state-federal conflict will likely lead to legal chaos and a bevy of lawsuits, nonetheless. Chemerinsky predicts the issue will reach the Supreme Court again, with same-sex couples arguing that states' not recognizing their marriages denies them their right to equal protection under the law.

Couples could also argue that states' refusal interferes with their constitutionally guaranteed right to interstate travel.

In a column for Bloomberg, Harvard law professor Noah Feldman imagined a scenario in which couples are "both married and unmarried for purposes of the same tax returns, mortgages and hospital visits." He called the potential upcoming lawsuits—and divergent conclusions drawn by different courts—"legal chaos."