Same Sex Marriage and Green Cards

Same Sex Marriage and Green Cards

An omission in the provisions of the Defense of Marriage Act, serves as an opening to deny same sex couples the right to sponsor their partner for a green card. This omission conveys, in effect, that if you are a US citizen who happens to be in a same sex marriage, you must leave the country to maintain your togetherness with your partner. The omission denies same sex couples the ability to petition for their partner, and therefore subjects them to the risk of being in the country illegally.

The article below proposes not a change to the immigration laws, merely an executive order from the President that directs the executive branch of the government, not the citizens of the country, to rectify the omission by allowing same sex partners to sponsor their spouses for green card and legal immigration status in America.

A portion of the article follows below.

Same-Sex Green Cards: The Case for a Presidential Executive Order 2011

Melanie Nathan
Dec 30, 2010

At the federal level of government in the United States, laws are made almost exclusively by legislation. Legislation originates as an Act of Congress passed by the Congress of the United States; such acts were either signed into law by the President or passed by Congress after a presidential veto.

Legislation is not the only source of regulations which have the force of law. There is also judge-made common law and constitutional law. The President can issue executive orders pursuant to a grant of discretion from Congress, or under the inherent powers that office holds to deal with certain matters of foreign policy.

When it comes to immigration matters, the standing law is that covered by the Immigration and Naturalization Act of the USA. This law cannot be changed, without the involvement of Congress through an amendment process. However I believe that when it comes to the regulations to effect the intent behind the law or something that unexpectedly and detrimentally impacts the law, the President of the USA can provide an executive order to adjust the circumstances, so impacted.

I do not believe that it was ever the intention of the Defense of Marriage Act to deny the de facto relationships of same-sex couples. I believe President Clinton who signed it into law would attest that it was never his intention to cause American citizens and Residents in same-sex relationships to have to exile the USA to pursue their Constitutional right to happiness. However Americans in the USA, in same sex relationships are denied the possibility to sponsor a partner for a green card.

Accordingly I believe that President Obama has the power to effect an Executive Order on behalf of same-sex couples who are specifically excluded by DOMA, from participating in the US Immigration laws. This quest would specifically denote a right by way of process to an American (citizen or resident) and not a right to an immigrant; the right of the American to Petition for a same-sex partner to reside in the USA, that is currently excluded via laws that simply fail to include the de facto situation, thereby causing extreme hardship to American Families.

I do not believe the Immigration law needs to change for this to happen in the short term; I do not believe that this reflects in any way shape or form on the marriage equality debate. It does not seek to change DOMA and nor does it impact the Immigration Act as we know it, at all.

There have been many early executive orders during all Presidencies; the State Department began numbering executive orders in the early 20th century, starting retroactively from President Abraham Lincoln’s Executive Order Establishing a Provisional Court in Louisiana issued in 1862. An executive order is an order issued by the President, the head of the executive branch of the federal government, generally to staff of the executive branch and not to the citizens of the country. Article I, Section 1 of the US Constitution specifically reserves all federal legislative authority to Congress, not the president.

However here what would occur would be the President ordering the inclusion of same-sex partners under existing law, based on the de facto existence of relationships, the anomaly caused by State law that endorse such relationships, while the Federal government fails to secure the right of the American to remain at home in a relationship of their choice.

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.