I had my first consultation with a same sex couple in a post Defense of Marriage Act (DOMA) world. Without giving away any specific facts, this was a gay couple in a long term relationship living in Virginia seeking immigration advice. I suggested that if they were to get married in the District of Columbia, we could file a visa petition on behalf of the non-citizen spouse. But, there would be one issue that could complicate matters.
That is, under current Virginia law a same sex marriage performed in a state where it is legal will not be recognized. I warned that USCIS could use that as a reason to deny the petition. That is, while the marriage would be legal where it was performed, it would not be legal in the state of residence.
In my honest opinion, I don't think this Administration would split hairs like that. To the contrary, given how quickly USCIS approved a visa petition for a married gay couple two days after the Supreme Court decision striking down DOMA, I think this Administration would likely approve a petition involving a DC marriage even if the couple is living in Virginia. Nonetheless, my opinion could be wrong, and thus I had to warn my potential clients up front.
But this does bring up an interesting issue. The Constitution requires the states to give full faith and credit to the actions and records of another state. Thus, a marriage performed in Ohio, for example, must be recognized in Virginia.
Still, I believe that some states will stick to their guns, and continue to refuse to recognize same sex marriages until forced to do so by the Supreme Court. I think Virginia and North Carolina are among those states.
The next round of litigation may be over the full faith and credit clause of the Constitution. In fact, I would not doubt that some organization has already drafted up the Complaint, ready to file for the right case. In the end, I believe that same sex marriages will have to be recognized in all states. Otherwise, the full faith and credit clause would be meaningless. Virginia may not be required to allow same sex couples to marry within its borders. But eventually, Virginia may be required to recognize a DC same sex marriage as legal.
By: William J. Kovatch, Jr.
Info@kovatchimmigrationlaw.com
