Same-sex binational couples in America: You can marry, but don’t leave your state

On June 26, 2013, the Supreme Court of the United States of America decided the fate of over 25,000 same-sex binational couples in America in the case of U.S. v. Windsor. The ruling struck down Section 3 of the federal Defense of Marriage Act (DOMA), which for federal purposes had defined marriage as “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ [as] only a person of the opposite sex who is a husband or wife.”

This federal definition had meant that for years same-sex couples had to pay federal estate tax when one spouse died, couldn’t receive normal spousal benefits if one spouse was employed by the federal government, and worse, couldn’t apply for a green card for the foreign spouse, even if their state recognized them as married. In fact, DOMA denied same-sex couples access to more than 1,000 federal programs and benefits available to opposite-sex married couples.

Same-sex couples who wanted to live together in America had limited options. Some of the foreign spouses managed to live legally in the U.S. on student visas, paying enormous sums of money in order to have legal immigration status. Some from countries known for homophobia and/or criminalization of same-sex sexual acts sought asylum in the U.S.. Many had no legal immigration status, forced to live in constant fear of being deported and separated. Without green cards, none of the foreign spouses could adopt their US citizens’ children, even in states that allow same-sex couples to adopt.

The Supreme Court decision is a step towards changing this. The federal government will now recognize same-sex marriages from states that offer them. Unfortunately, only 13 states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maryland, Maine, Rhode Island, Delaware, Minnesota, and California) and the District of Columbia currently allow same-sex marriage. Same-sex foreign spouse recipients of green cards will then be eligible to co-adopt in states that have gay marriage (so that the spouse can get a green card) and allow this (Massachusetts, New York, Rhode Island, Vermont, Washington, California, and the District of Columbia).

As this small list of states that will have actual legal equality shows, the new Supreme Court ruling is far from actually granting same-sex couples actual equality. Same-sex couples whose states do not permit same-sex marriage will still be ineligible to apply for green cards, and foreign spouses without green cards will still be ineligible to adopt. (Since the Supreme Court ruling doesn’t address whether or not same-sex civil unions will qualify as “marriages” for federal purposes, one can expect many heated cases about this in the near future.)

Even those same-sex couples who can get married will face problems if they chose to move to another state. Section 2 of DOMA, which the Supreme Court did not rule on, allows states to refuse to recognize same-sex marriages performed under the laws of other states. What that means is that a couple who legally marries in New York and then moves to a different state that refuses to recognize their New York marriage will no longer be considered legally married, leading to a taxing and benefit nightmare for the couple.

One can only hope that at some point in the near future the Supreme Court will use actions instead of soaring rhetoric to prove their commitment to equality and strike down the rest of DOMA. However, this may take a while. In the meantime, congratulations to the binational couples of Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maryland, Maine, Rhode Island, Delaware, Minnesota, and Washington D.C. on your new rights—go get married!! Just don’t leave your state…

Carrie Tirrell