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A Glimmer of Hope from Windsor v. United States?

Where does church and state intersect in federal law? Recent case developments give us immigration practitioners a glimmer of hope when it comes to representing same sex couples in immigration proceedings. Seasoned immigration attorney Kenneth Cohen, Partner at Kavinocky Cook, LLP, in Buffalo, New York, provided me with the following thoughts:

On October 18, 2012, the U.S. Court of Appeals for the Second Circuit struck down the Federal Defense of Marriage Act’s (DOMA) definition of marriage as being between a man and a woman. It ruled this definition was not substantially related to an important government interest. Unless the Supreme Court reverses that decision, Edith Windsor will receive an estate tax refund for the marital deduction she was not allowed to claim when her long time same sex spouse died. In addition, the federal government will not be able to use that definition to deny benefits under federal law to same sex spouses in the three states, New York, Connecticut and Vermont which comprise the Second Circuit. From Bankruptcy law to Immigration law and beyond this decision will have many repercussions. The court took a hard deliberate swipe at the religious right. At the conclusion of its opinion it stated: “But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” This decision recognizes our basic governmental principle of separation of church and state. I hope this part of its message is never lost.

This brought to mind what a wise attorney once told me, “Don’t ask questions for which you are unprepared for the answers.” The way I interpreted this piece of advice was to ensure that all points of contention on appeal was supported by solid legal rationale and/or or factual evidence. As luck would have it, the right balance of the two will land you good case with good facts. This is exactly how the case of Windsor v. United States unfolded on appeal (IMHO).

How will immigration cases involving binational same-sex couples be challenged in light of Windsor v. United States? Would same-sex couples ever receive the same level of immigration benefits opposite-sex couples already receive? Although a September 2012 letter from DHS Secretary Janet Napolitano may be enough for temporary stays of removal, what about long-term solutions for binational same-same couples? Legislation may never become an immediate reality so perhaps a good legal battle is in order? Some simple ingredients:

• Sympathetic plaintiffs with a long-term relationship

• Mounds of documentation demonstrating life as a couple

• Significant inequity(ies) or hardship(s)

What kind facts in an appellate case would you like to see get all the way to the Supreme Court? Stay updated on immigration developments and practice tips with the Case Management Guru Blog.