On October 6, 2014 the United States Supreme Court made a
landmark decision on the subject of gay marriage, by making no
decision at all. The Supreme Court was being urged to hear
arguments as to whether lower courts had ruled appropriately in
finding that gay marriage bans violated the Equal Protection Clause
of the Constitution. By refusing to hear the cases, the bans
remain unconstitutional and gay marriage either is, or will soon
be, legal in the states affected.
The practical effect of the Supreme Court's refusal to hear
the appeal is that gay marriage is now legal in 30 states and the
District of Columbia. In five more states there are federal
appellate court rulings in favor of the right to marry, which means
we can expect the law in those states to allow gay marriage
soon. In an additional 8 states, cases are still waiting to
be heard by the appellate courts following pro-gay marriage ruling
by lower courts. At last count only six states still have a gay
marriage ban that has not been impacted by an adverse court
decision (these states are: ND; SD; NE; MS; AL; GA).
Earlier this year, the Supreme Court held in United States
v. Windsor that section 3 of the Defense of Marriage Act was
unconstitutional. This opened the door for Federal
recognition of same-sex marriages and the extension of benefits
therewith, including the filing of joint tax returns and the
ability of US citizens to petition for green cards for their
foreign national same-sex spouses. It was surprising, however, that
the Court refused to hear any of the more recent appeals. Lower
courts have been applying Windsor broadly, going so far as
to find that gay marriage bans violate equal protection rights
under the 4/14th amendment – something the Supreme
Court had been careful not to do.
What this means on the immigration front is that it is easier
for LGBT Americans to access immigration benefits for their foreign
national spouses, including petitioning for a green card. For
a same-sex couple to be able to apply for a green card for their
foreign national spouse, they must be married in a state that
recognizes gay marriage. Depending on where the couple lives,
they may have to travel long distances to get a valid marriage
certificate. Now, with more states legalizing gay marriage,
it is increasingly easier for same-sex couples to access the same
rights as their heterosexual peers. With momentum moving in
the direction of further legalization, there will be increasing
pressure on states that still have bans in effect.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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