DOMA, or the “Defense of Marriage Act,” was passed in 1996 by Congress and signed into law by President Bill Clinton. Section 3 of DOMA is the part that prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state.
However, in 2013, in United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 unconstitutional because it violated equal protection rights. In that case, Edith Windsor sued the United States after she was forced to pay over $363,000 in estate taxes after her same-sex spouse died. Had her spouse been a man, she would not have had to pay the tax. Following this decision, Windsor’s marriage will be federally recognized.
The Supreme Court case did not challenge Section 2 of DOMA, which says that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. Only the section that dealt with federal recognition was ruled unconstitutional.
What this basically means is that if a couple’s home state allows them to be legally married, then they will be able to get federal benefits. Federal benefits include: health insurance (and hospital visitation rights) and pension protections for federal employees’ spouses, social security benefits for widows and widowers, support and benefits for military spouses, joint income tax filing and exemption from federal estate taxes, immigration protections for binational couples—binational couples will be allowed to sponsor foreign-born spouses for U.S. residency, and many more.
Those that are married in a state where marriage equality is legal, but live in a state where it is not may have a harder time receiving benefits. Because different organizations base benefits off of where a couple lives, as opposed to where they were married, those who are legally married but live in a state without marriage equality may not be able to take part in these newly accessible benefits.
Following the Supreme Court decision President Obama declared that federal agencies including United States Citizenship and Immigration Services (USCIS) implement regulations which will allow benefits for same-sex couples.
This means that now same-sex couples can apply for benefits of their spouses, and or fiancé. The spouse will be required to show the marriage was valid in the state where it occurred and prove the bonafides of the relationship.
In order to apply for same-sex marriage the citizen spouse should file for a Petition for Alien Relative [Form I-130] on behalf of the Beneficiary or Immigrant spouse for further information about processing these applications please schedule a consultation with our office.