Colorado Same-Sex Marriages Should Be Valid for Immigration Purposes

10/7/2014

On Monday, October 6, 2014, the United States Supreme Court declined to hear seven same-sex marriage cases, allowing the decisions of the Circuit Courts of Appeals in favor of same-sex marriage to stand.  Colorado is one of the states affected by this decision.  A cascade of events rapidly unfolded Tuesday, removing all legal impediments to issuing marriage licenses in the state.  Colorado Attorney General John Suthers ordered all county clerks to begin issuing marriage licenses to same-sex couples on Tuesday

What does this mean for same-sex couples with mixed immigration status?  Same-sex couples that are married in Colorado should be able to move forward on filing petitions for each other, and feel confident the legality of their marriage should not be in question. They should also be able to claim the protections available under the law where a qualifying relative “spouse” is required.  

For federal immigration purposes, same-sex marriages have been recognized since June 2013, just after the Supreme Court struck down the provision of the Defense of Marriage Act as unconstitutional that defined marriage as exclusively between a man and a woman.  Yet many states retained their own bans on same-sex marriage.  Colorado mixed-immigration status couples had to travel out-of-state to marry in one of the states that recognized same-sex marriage because civil unions—which became legal in March 2013—were not full-fledged marriages under the law.  There were some marriage licenses issued in the interim in Boulder, Denver, and Adams counties, but the Colorado Supreme Court issued an injunction ordering the county clerks to stop issuing the licenses until the U.S. Supreme Court took up the issue.  The question of whether those licenses issued resulted in valid marriages, despite the state’s continuing ban on same-sex marriage, loomed.  Until yesterday, it was still a better idea to marry elsewhere to have a strong immigration petition for a same-sex partner.  Now, marriages in Colorado are legal and it is unlikely to change.

Why just unlikely?  Isn’t it settled yet?  The U.S. Supreme Court did not issue a decision that state bans on same-sex marriage are unconstitutional.  It simply declined to take up the issue, allowing the decisions in the lower Circuit Courts of Appeals to stand.  It may be because the Circuits Court cases petitioning for certiorari were all in agreement that same-sex marriage bans are impermissible.  However, if some of the remaining Circuit Courts uphold the same-sex marriage bans, the U.S. Supreme Court may decide to take the case in the future.  If it were to rule that states have the right to ban same-sex marriage, Colorado same-sex marriages could be at risk again. 

Still, the language of the June 26, 2013 decision in United States v. Windsor, 133 S.Ct. 2675 (2013), strongly suggests the U.S. Supreme Court finds the arguments made in favor of these bans unpersuasive:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.  

United States v. Windsor, 133 S.Ct. 2675, 2695-96 (2013).  It seems unlikely the Court would allow the states to displace protections of “personhood and dignity . . . by treating those persons as living in marriages less respected than others,” but not the federal government.

So same-sex marriages in Colorado are safe for now, and it is unlikely to change.  For mixed-immigration status same-sex couples, this means improved opportunities to keep families together and greater security overall.