Does the Windsor/DOMA ruling mean federal protections for gay immigrants now? (user search)
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  Does the Windsor/DOMA ruling mean federal protections for gay immigrants now? (search mode)
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Author Topic: Does the Windsor/DOMA ruling mean federal protections for gay immigrants now?  (Read 394 times)
True Federalist (진정한 연방 주의자)
Ernest
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« on: June 26, 2013, 05:22:54 PM »

I don't think so.

Kennedy's decision basically boils down to Congress having to defer to the wishes of the States concerning who may be married.  However in Article I Section 9 Clause 1, Congress is explicitly granted the power to ban the immigration of people that only some States think should be admitted. (The provision was intended to apply to slaves, but because the Founders refused to explicitly refer to slavery in the Constitution, they worded it more broadly and obliquely.) Hence in immigration law, Congress does not have to defer to the States.  Until a Federal case is decided in which same-sex marriage is required to be recognized by a State that does not do so, or a case directly applicable to immigration is brought, I don't see immigration law aspects being voided.

That said, I expect that it'll only take a couple years at most for the cases needed to address that issue to wind its way thru the courts and resolve the immigration issue in the favor of SSM advocates.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #1 on: June 26, 2013, 05:34:17 PM »

Well, I doubt that the Obama administration will put up much in the way of roadblocks, but if Romney had won in 2012, his administration would be and I think the courts would back him enough to allow the case to be fought thru the courts, tho I think ultimately he'd lose.

Basically, it's at the point where each time a spouse of a same-sex marriage wants to immigrate, they'll need to litigate it until there is a final resolution of the issue.  While there's not much doubt as to the final result, the issue is not finally settled.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #2 on: June 26, 2013, 06:49:06 PM »

It's entirely possible Obama's administration will do some roadblocking as well, just as it did with the Windsor case.  By that I mean, they'll continue to deny same-sex spouses the immigration status opposite-sex spouses would have, but not defend the policy in court.   Obama has shown a strong tendency to play rope-a-dope with laws it doesn't like, but which it can't get Congress to change.
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