Does California’s recent ruling mean that same-sex couples can now get married?
Gill: This is not necessarily the end of the road for Prop. 8. Right now, gay couples still can’t get married in California – there was a stay issued on the decision of the lower court. This is not going to go into effect until the appeal is resolved.
So then what’s the significance of Tuesday’s ruling?
Gill: This ruling is a very big victory – legally very important. It’s the first federal court of appeals to find that a ban on marriage for same-sex couples violates the federal constitution. But it doesn’t mean that folks will be able to get married tomorrow.
It’s expected that California’s ruling will be appealed. If a higher court upholds the unconstitutionality of Prop. 8, then same-sex marriage would be legal in California. In that event, would undocumented partners in a same-sex marriage with a U.S. citizen be protected from deportation?
Gill: It doesn’t change the status of undocumented immigrants – partners of gay couples cannot become citizens by marriage.
The bigger problem with respect to undocumented immigrant partners of gay and lesbian couples in the U.S. is that it is a federal law, which actually prohibits their recognition as a citizen. State laws don’t govern immigration.
So even in a state where gay marriage is legal, protections are not afforded to undocumented immigrants?
Gill: Even in states like Massachusetts where gay marriage is legal, it’s still the case that immigration discrimination happens. That’s because of the federal Defense of Marriage Act, enacted in 1996. That prevents the federal government from recognizing any marriage that’s not between a man and a woman.
What about state laws such as SB 1070 in Arizona and HB 56 in Alabama that are trying to govern immigration?
Gill: A lot of the arguments that the ACLU and federal government are making in the court cases against those laws is that the state law cannot create immigration policy. And it is for sure the case here [with the same-sex marriage], that the problem is federal law. Federal law does certainly govern who gets recognized as a spouse for immigration purposes.
Are there any attempts to repeal the federal Defense of Marriage Act?
Gill: There are a number of lawsuits challenging the constitutionality of the Defense of Marriage Act. Lower courts have found that it is unconstitutional. Several suits are pending in California. There is one out of Massachusetts, one out of New York, one out of Connecticut.
In Massachusetts, a district court found that the Defense of Marriage Act is unconstitutional. That ruling is waiting for a decision in the 1st circuit court of appeals. After that, the next step would likely be the Supreme Court. Litigation is often very slow – it is likely to take years.
There’s also congressional legislation proposed to repeal the federal Defense of Marriage Act – but that hasn’t made it through the congressional process either.
There are a bunch of moving parts involved – both favorable federal law and favorable state law. This ruling on Prop. 8 helps us get to a favorable state law. It’s not a final decision on a favorable state law – but it doesn’t help with the federal law.
Unfortunately for undocumented gay and lesbian folks, there’s a ways to go.
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