What Gay Couples Can Expect If DOMA Falls


The U.S. Supreme Court is expected to rule on a challenge to the federal Defense of Marriage Act (“DOMA”) before its summer recess, and legal experts are already in disarray over what the ruling could mean for same-sex married couples who live in, work in, or move to one of the 38 states that specifically bar the recognition of gay marriage.

Nine states and the District of Columbia specifically permit gay marriage (three have no explicit imprimatur) and married gay couples living in those states will certainly see their marriages recognized by the federal government if challenged provisions in DOMA are struck down. Such a favorable ruling would then qualify those couples for a wide array of federal benefits authorized under more than 1,100 federal statutes pertaining to benefits.

But it will likely remain uncertain as to what would happen if a same-sex married couple moved from a state that explicitly permitted gay marriage to a state that prohibited it. Legal experts are all tangled up over what would happen in that case to the acknowledgement and processing of various tax breaks, Social Security survivor benefits, medical leave rights and other benefits and privileges of marriage.

The only thing the experts agree upon is that if the challenged provisions of DOMA are struck down by the Court, then there will be a case-by-case conflict resolution concerning the applicability of hundreds of benefits and privileges associated with statutes relevant to the marriage status.

The fact is, however, that many benefits would have to be made available to same-sex couples, regardless of their state of residence. For instance, same-sex couples will almost certainly be able to apply for green cards for their spouses as soon as DOMA falls, no matter where they live. That is because a marriage is valid, for purposes of immigration law, if it is recognized in the place where it was performed.

On the other hand, in estate tax planning and will administration, a marriage is generally valid only if it is recognized in the state where the residing spouse dies, so the results could be different for gay couples who leave an estate in a jurisdiction that does not recognize gay marriage.

The only thing we know for sure is that a conflict of laws among the states and the federal government will result in a massive proliferation of lawsuits, leading to more challenges that will likely go to the U.S. Supreme Court for resolution. In fact, Harvard Law School Professor Noah Feldman has reportedly predicted a “storm of legal chaos” that could result in gay couples being married for some purposes and not for others, such as tax returns, estate planning, social security benefits, hospital visits, and other ordinary “course of life” issues.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, particularly those gay and lesbian couples who need help with immigration benefits related to their marriage status. Please call us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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