June 17, 2013— -- Before U.S. lawmakers decide whether they will address same-sex couples in a comprehensive immigration overhaul bill, the Supreme Court could make the decision for them.
The high court faces a choice this month to uphold or strike down all or parts of the federal Defense of Marriage Act's definition of marriage as being between a man and a woman. If DOMA is struck down, gay marriage advocates will view it as an unambiguously positive outcome for their cause because, in part, it also resolves the question of whether the immigration law can apply to same-sex couples.
"For the first time in immigration equality's history, our legal team is now assisting couples in preparing their green card applications," said Steve Ralls, the communications director at the advocacy group Immigration Equality. "We're definitely preparing couples. The court ruling and the backup plan of congressional legislation make us confident more so than at any other time."
Click HERE to read more about the Supreme Court DOMA case.
But a court decision has its downsides as well. Although the Obama administration is likely to implement the court's decision in a way favorable to gay marriage advocates, a future administration might not.
If DOMA is upheld or if the court's ruling on the constitutionality of a federal definition of marriage is less clear, the result could be continued legal uncertainty for gay couples. One way Democrats in the Senate and gay marriage advocates have hoped to resolve this is by attaching an amendment to the immigration bill that would give same-sex couples the same benefits as heterosexual couples under the immigration law.
Read more about the Senate's immigration push HERE.
But Democrats face an uphill struggle in Congress where Republicans have staunchly opposed the inclusion of a same-sex marriage amendment in the immigration bill. A principal Republican sponsor of the legislation, Sen. Marco Rubio, R-Fla., said Thursday he would walk away from his own immigration bill if a same-sex marriage amendment is included.
With the court's final decision fast approaching, here are some ways the issue could shake out:
The Supreme Court Upholds DOMA, Congress Does Nothing
If the Supreme Court upholds DOMA, there is only one way for same-sex couples to be recognized by immigration law: congressional action.
"Their status as spouses or as married is invisible for U.S. immigration law purposes because of DOMA," said Scott Titshaw, associate professor of law at Mercer University in Macon, Ga.
That means any benefits given to heterosexual couples couples in the immigration bill, like the ability to petition for a green card on behalf of a spouse, would not apply to same-sex couples.
The Supreme Court Upholds DOMA, Congress Addresses Gay Couples
Even if the Supreme Court keeps DOMA in place, Congress could pass legislation like the one sponsored (and immediately withdrawn) by Sen. Patrick Leahy, D-Vt., which would have recognized marriages that were entered into in states where same-sex marriage is legal.
That means that in any of the 12 states that recognize same-sex marriage, the federal government would defer to the states in determining whether that marriage is valid for immigration purposes. And marriages entered into in other countries would also be recognized.
Advocates have also proposed a second option that would take marriage out of the equation altogether, by allowing the government to recognize couples in a "permanent partnership." Such an amendment, based on the Uniting American Families Act, would allow couples who live in states where gay marriage is not recognized to be recognized under U.S. immigration law.
Advocates still believe that Leahy's amendment stands a chance if it is brought up again on the Senate floor, but they do not believe the House will include an amendment on gay marriage.
"I don't think that lesbian and gay couples will be part of a House bill," Ralls of Immigration Equality said. "Our legislative plan has always been to fight very hard to be in the Senate bill so that when the Senate and House go to conference, our champions in both chambers will protect the Senate bill and make sure it is in the bill when it reaches the president's desk."
The Supreme Court Strikes Down DOMA, Congress Does Nothing
If DOMA's federal definition of marriage is struck down, the question of how immigration law is interpreted when it comes to gay couples falls to the Obama administration to decide.
That's a good thing for immigration advocates who view the administration's decision to stop defending DOMA in federal courts as a clear indication that they will interpret the immigration statutes in a way that favors gay couples.
"Immigration law is actually pretty clear on how things could work," Ralls said. "The precedent under the immigration system is that a marriage is eligible for immigration benefits based on the place of celebration, meaning where the marriage is performed rather than the place of residency. We're also fortunate that we have an administration that I think will act quickly to implement a ruling in the best way possible.
"We've certainly made the Obama administration aware of what our view is and I have not heard any disagreement from the administration on that."
But unlike a congressional amendment, which would put the issue on sound footing even if the Supreme Court does not rule in favor of gay marriage advocates, relying solely on the court to strike down DOMA could mean that a future administration could reverse Obama's actions when it comes to immigration law.
"There's some possibility that a future administration that is less friendly to LGBT people could go back and change their policy and argue that same-sex marriages, or at least certain same sex marriages, were not recognized for immigration purposes," Mercer's professor Titshaw said.
The Supreme Court Strikes Down DOMA, Congress Addresses Marriage
If Congress chooses to cover its bases even if the Supreme Court strikes down DOMA by explicitly stating in the law that same-sex couples are recognized by immigration legislation, it would take the issue out of a future administration's hands and would make court challenges more difficult.
"My opinion is that such an amendment would nail it shut," said David Leopold, an immigration lawyer with David W. Leopold & Associates in Cleveland. "Without it, we would prevail on some same-sex couple cases and you'll see the agency begin to adjudicate those cases and grant those cases.
"But then you're going to have people who will come up the other way and argue that the law isn't being interpreted the way Congress intended it," Leopold said. "There's ambiguity in the current statue."