IT WAS two years ago that I wrote a piece for this page asking, “Will Same-Sex Binational Couples Get Justice?” With the 5-to-4 decision in Windsor v. United States on June 26, the Supreme Court answered my question with a resounding “yes.” Section 3 of the Defense of Marriage Act was ruled a violation of the principle of equal protection as guaranteed under the Fifth Amendment. One consequence of the ruling is that federal benefits such as the ability of a U.S. citizen to file for his or her spouse’s Lawful Permanent Residency (the “green card”) must now be granted to binational same-sex couples.
Of the nearly 40,000 same-sex binational couples in the U.S., many were married in one of the fourteen states that allow same-sex marriage but reside in a state where the statutory definition of marriage allows only for “one man and one woman.” The Windsor decision, however, will allow marriage-based immigration petitions to proceed regardless of where the couple resides, so long as the marriage is valid where it took place.
Such is the case for U.S. citizen Cindy Elliot and South African citizen Heather Grant. The couple was legally married in New York, one of the states that allows same-sex marriage, but they reside in Florida, where gay marriage has been constitutionally banned since 2008. After losing her request for an intra-company transfer from her foreign employer, being denied her green card, and being put in deportation, Grant will now be allowed to petition for a green card.
The other major case on which the Supreme Court ruled in late June was Hollingsworth v. Perry, which concerned the merits of California’s Proposition 8. While the Court could have gone wide and struck down all state bans on same-sex marriage as unconstitutional, instead it chose to punt and returned the case to a lower court. For now—though things are changing fast on the marriage equality front—many binational same-sex couples will have to travel out of state to get married legally, but at least they won’t have to uproot their lives for the sake of a green card.
Elizabeth Ricci is an attorney who practices complex immigration law in Tallahassee, Florida.