United States v. Windsor: How does it work? | Goose Creek Family and Immigration Attorneys

Last week the Supreme Court of the United States announced their landmark decision of United States v. Windsor, which declared Section 3 of the federal Defense of Marriage Act (DOMA) unconstitutional. Section 3, which defined “marriage” and “spouse” as specifically excluding same-sex partners, was struck down in the Opinion issued June 26, 2013.

But what does this mean for same-sex couples, and how will it affect day-to-day life?

For starters, the decision does not necessarily “legalize” gay marriage. In the decision, which you can read here, the Court emphasized that “by history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” Because New York and eleven other states have passed legislation that specifically aims to protect same-sex marriage, the federal government’s intervention of the regulation was the primary question. The Court, later in the Opinion, also stated that marriage is an “essential part of the liberty protected by the Fifth Amendment” and that by targeting a group certain states have specifically aimed to protect, the federal government is violating that protected liberty.

Not all of DOMA was struck down, however. Section 2, which still stands, allows the states the ability to choose not to honor same-sex marriage within their own jurisdiction. So, in terms of how this ruling will affect same-sex couples: it will immediately allow access to some federal benefits (example: exemption from estate tax of a marital home, which is the issue that triggered the Windsor case); but will not entitle same-sex couples to other benefits due to the ban that may still exist in some states.

The decision also means changes for immigration law – changes that are already being implemented by USCIS. In response to President Obama’s directive that the “implication for federal benefits for same-sex legally married couples [should be implemented] swiftly and smoothly,” Secretary of Homeland Security Janet Napolitano instructed USCIS to review immigration visa petitions involving same-sex couples. The most substantial change resulting from this directive is that a U.S. citizen in a same-sex relationship with a foreign national may now file an application to sponsor their spouse. That application will be considered based on current immigration law(s), as opposed to an automatic denial based on the same-sex nature of the marriage. Click here to read the full statement from Homeland Security, and the implementation through USCIS.

If you or a loved one is is in need of legal representation or would like to know how the Windsor decision applies to your specific circumstances, contact Miller|Conway, Goose Creek Family and Immigration Attorneys, at 843.764.3334 for a consultation. You can also like us on facebook, follow us on twitter, or visit the firm’s website for more information on the attorneys at our firm and our other areas of practice.