Enacted into law in 1996, the federal Defense of Marriage Act (DOMA) singles out lawfully married same-sex couples for unequal treatment under federal law. Legally married same-sex couples cannot avail themselves of many federal benefits, for example, take unpaid leave to care for a sick or injured spouse, receive surviving spouse benefits under social security, file joint federal taxes, or petition for immigration benefits on behalf of their partner.
Civil rights groups are challenging the constitutionality of this law, and it is heavily anticipated that the Supreme Court may take up this question during its upcoming Fall 2012 term. Meanwhile, advocates search for ways to dampen the discriminatory effects of the DOMA. In the immigration context, we were provided with a tool to do just that with the recent announcement of the Department of Homeland Security (DHS) instructing immigration officers to recognize same-sex families when considering whether to exercise prosecutorial discretion for an individual in removal proceedings.
While many jurisdictions including Los Angeles and New York have, in practice, already been recognizing same-sex families for the purposes of prosecutorial discretion, DHS’s directive is a rare species of federal recognition of same-sex couples. This announcement will have enormous benefit for those same-sex couples who face imminent deportation, but may also be seen as a volley in the upcoming battle to overturn DOMA and afford LGBT persons in the U.S. the dignity to choose their own destinies.