On June 26, 2013, the Supreme Court of the United States ("SCOTUS") held that Section 3 of the Defense of Marriage Act ("DOMA") was unconstitutional. United States v. Windsor, Executor of the Estate of Speyer, No-12-307 (U.S. 2013). Windsor involved a federal estate tax refund claim by the survivor of a same sex-marriage recognized as valid by the State of New York. Ms. Windsor had sought a federal estate tax exemption as the surviving spouse, but the Internal Revenue Service ("IRS") denied the claim based on Section 3 of DOMA. 1 U.S.C. § 7. Section 3 defines the terms "marriage" and "spouse" for more than 1,000 federal statutes as follows: "marriage" means "only a legal union between one man and one woman as husband and wife," and "spouse" refers "only to a person of the opposite sex who is a husband or a wife." The IRS found that it was precluded by DOMA from recognizing Ms. Windsor’s status as a surviving spouse.

Ms. Windsor sued the IRS, and both the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit found that Section 3 of DOMA was unconstitutional. When Ms. Windsor appealed to the SCOTUS, however, the Obama administration advised both the House of Representatives and the SCOTUS that it agreed with the Second Circuit and would not defend the statute. In response, the House voted to intervene to defend DOMA’s constitutionality.

The SCOTUS found that Section 3 of DOMA was unconstitutional as a deprivation of the equal protection guaranteed under the Fifth Amendment to the U.S. Constitution. In reaching this conclusion, the SCOTUS noted that both the definition of "marriage" and its regulation traditionally have fallen under the authority of the states. While Congress has enacted discrete federal laws to maintain a uniform federal definition of "marriage" that promotes a specific federal policy, DOMA provides a broad definition that affects more than 1,000 federal statutes without regard to any specific overriding federal policy. DOMA’s effect, therefore, is to deny marital status to a class of persons that certain states, like New York, have sought to protect. The SCOTUS found that this was a violation of equal protection because it interfered with New York’s constitutional power to regulate domestic relations.

The SCOTUS’s Windsor decision already has had a direct impact on immigration cases, and this impact will expand as the federal government develops and promulgates regulations implementing it. Derivative immigration benefits are available to the "spouses" of sponsored foreign nationals ("FNs") in most immigrant (green card) and nonimmigrant classifications, and as part of derivative citizenship and naturalization applications. Sorting out the ripple effect of the SCOTUS’s Windsor decision will not be an easy task. The U.S. Department of Homeland Security ("DHS") has announced that same-sex couples can apply for immigration benefits immediately if they were married in a state that recognizes the relationship. Presently, the Human Rights Campaign has identified 14 jurisdictions—13 states and the District of Columbia—that recognize same-sex marriages. On July 1, 2013, The New York Times reported that the U.S. Citizenship and Immigration Services ("USCIS") already has approved a green card application for a FN who applied for permanent residence based on a state-recognized same-sex marriage. On July 17, 2013, the Board of Immigration Appeals reversed the denial of an immediate relative I-130 petition and held that DOMA no longer is a bar to the recognition of same-sex marriages for immigration purposes as long as they are valid under the laws of the State where the marriage was celebrated. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013).

There are a variety of relationships, both same-sex and heterosexual, which may equate to marriage under U.S. and foreign laws. Also, as in the Windsor case, there are other situations where the marriage took place abroad but was recognized by one of the 50 states. Thus, it may be hard for the USCIS to limit any federal definition of "marriage" for immigration purposes to just these 14 jurisdictions. The USCIS has a definite interest in establishing a definition of "marriage" that will apply uniformly under federal immigration laws, and this may survive the Due Process objections noted by the SCOTUS in Windsor. Developing and implementing the Windsor decision in this context presents major challenges, and USCIS proposals are likely to be the subject of major debate and challenge given the variety of the contexts out of which these claims arise and the highly charged nature of the issue. For this reason, those that apply for same-sex immigration benefits, or even those heterosexuals in non-traditional relationships, can expect delays as the USCIS develops the guidance required to adjudicate their applications.

The definition(s) of "marriage" and "spouse" developed by the USCIS and U.S. Department of State ("DOS") are likely to have a ripple effect beyond the immigration benefits they permit. More areas of law, such as employee benefits, estates and trusts, domestic relations, taxation, personal injury litigation, and others, may feel the effect of the USCIS decision. Remember, where FNs are concerned, it is typically the USCIS or DOS that first opines on their status when deciding whether they are qualified to enter the United States based on a marriage. The USCIS decision that an individual qualifies (or does not qualify) as a spouse may influence or control determinations that employers seek to make on the same issue in other legal contexts. For this reason, it is important for employers to consider the full range of implications attached to a decision to sponsor a FN and his/her spouse for immigration benefits. At Epstein Becker Green ("EBG"), we have formed a comprehensive interdisciplinary task force designed to assist employers with these issues. Contact your EBG representative, or any of the lawyers identified at the end of this alert, to take advantage of our knowledge and experience in this area.