The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA

An estimated 35,000 U.S. citizens are living in our country with same-sex foreign partners, but these couples have no right to stay here together on the basis of their relationship. Many of these Americans are faced with a choice between their partners and the country they love. This is true even if the couple is legally married in one of the growing number of U.S. states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” for all federal purposes as an exclusively heterosexual institution, stands squarely in their way. Reform options that would help these couples stay together in the United States include a judicial determination that marriage discrimination violates the U.S. Constitution, federal legislation specifically recognizing these couples under U.S. immigration law, and the repeal or striking down of DOMA. This article focuses on the latter possibility. Repealing or striking down DOMA would not necessarily result in a clear, uniform rule recognizing all same-sex marriages under the Immigration and Nationality Act (INA). There is, however, a wealth of guidance about how our immigration system deals with marriages that are recognized in some, but not all, U.S. states. This article maps out the legal terrain that would remain in an immigration world without DOMA. U.S. immigration cases involving marriage validity have been decided in a piecemeal, case-specific manner. A systematic review of the case law, however, reveals that U.S. Attorneys General, the Board of Immigration Appeals (BIA), immigration officials, and most federal courts have consistently applied the same standards to determine marriage validity under the INA. These standards have been employed in dozens of cases involving biracial marriage, marriage between close relatives, marriage involving minors, marriage involving transgender spouses, proxy marriage, polygamy, and even same-sex marriage before DOMA. After distilling and describing a three-step test that embodies the well-established rules for dealing with disputed categories of marriage, this article applies this analysis to same-sex spouses whose marriages are recognized by a U.S. state or a foreign country. It identifies some answers and illuminates possible approaches to a few hard questions that would remain

International Digital Nomads: Immigration Law Options in the United States and Abroad

Remote work has become common, allowing many people to choose to work anywhere with an adequate internet connection. Some are adopting a “digital nomad” lifestyle, moving with the seasons or years from place to place, including foreign locations. Yet, such international movement raises immigration and other legal issues. Many countries have adopted specific digital nomad visas and other immigration policies to encourage and regulate this trend. The United States is not one of them. Arguing that the United States should consciously plan for digital nomads, this article compares the current U.S. approach with the innovations of other countries, identifying the advantages and disadvantages of different options. It proposes that the United States adopt Canada’s visitor visa policy allowing remote work for foreign employers as a realistic first step in planning for international digital nomads

Same-Sex Spouses Lost in Translation? How to Interpret “Spouse” in the E.U. Family Migration Directives

This Article analyzes the word “spouse” in the European Union’s Family Migration Directives in detail, focusing on the treatment of married bi-national same-sex couples. Through these directives, the European Union exercises significant authority over family-based immigration and internal migration, expressly providing immigration rights to the “spouses” of E.U. citizens and legal residents. However, family law, including the familial status of “spouses” is governed by individual E.U. member states. While a growing number of member states authorize same-sex marriage, the majority still do not. The E.U., therefore, must determine how to treat migrating couples who are legal spouses in one member state, but not in another. This issue echoes the choice the U.S. faced in 1996 and again in 2013: should federal law determine spousal status based on the law of the jurisdiction where a marriage was celebrated or where the couple resides, or should it create its own independent federal definition? The two U.S. approaches, a federal definition and a place-of-celebration choice-oflaw rule, may help Europeans as they develop their own answer. This Article describes and rigorously applies the European Court of Justice’s five methods of directive interpretation (textual, systematic, historical, teleological, and comparative analyses) to the directives, concluding that the best interpretations of the directives result in an autonomous definition of “spouse” that includes same-sex spouses or in a member-state-of-celebration choice-of-law rule. This exercise provides some insight for European courts and scholars about the various paths the European Court of Justice may take to interpret the word “spouse” in the Family Migration Directives. It also provides an introduction to European family-based immigration and an example of the interpretation of directives generally, for judges, attorneys, scholars, and students from outside of the E.U

Inheriting Citizenship

Most of us become citizens at birth based either on our birthplace or our parents\u27 citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and hybrid birthright systems. It also examines some foundations of property inheritance laws and family law concepts to illuminate the deep connections between the doctrines of property, family, and citizenship inheritance. Hopefully, in the process, it will enlighten the ongoing U.S. debate regarding birthplace citizenship, a discussion that has rarely considered the role of inherited citizenship, which is the other half of our dual birthright citizenship system

Revisiting the Meaning of Marriage: Immigration for Same-Sex Spouses in a Post-\u3ci\u3eWindsor\u3c/i\u3e World

As U.S. states and foreign nations began recognizing same-sex marriages over the last dozen years, the anti-gay definitions of marriage and spouse in Section 3 of the Defense of Marriage Act ( DOMA\u27\u27) rendered those marriages invisible for immigration purposes. Thousands of U.S. citizens were left with a cruel choice between country and family: Remain alone in the United States or start anew with spouses and stepchildren abroad. Other couples did not qualify to emigrate anywhere together, leaving them no choice at all. DOMA also devastated children. Not only might they be separated from one parent, but their own immigration or even citizenship status often hinged on definitions of terms like stepchild\u27\u27 and born in wedlock. When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of families. Yet Windsor was not an immigration case, and the Court\u27s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized civil union or registered partnership ? How about children born to spouses or registered partners in same-sex couples: will they be recognized as born in wedlock for immigration purposes? The Obama administration appears to have answered the first question, concluding that same-sex spouses who celebrate their marriage in a jurisdiction where it is valid are married for immigration purposes, even if they reside in a state where it is not valid. In the context of immigration law, this uniform place-of­celebration rule rests on firm legal, precedential, and policy ground. As described below, the last two questions have not been resolved

ART, Surrogacy, Federalism and Jus Sanguinis Citizenship in the US, Australia, and Canada

This paper examines the jus sanguinis inherited citizenship of children conceived through assisted reproductive technology under United States, Australian, and Canadian law. While most countries use one set of rules to determine parentage for both citizenship and other purposes, these countries do not. They generally define parentage at the state, provincial, or territorial level, while independently determining parentage for citizenship purposes at the federal level. This article analyzes and compares these current federal approaches to families and citizenship, lays out alternatives, and discusses their merits and disadvantages

Throwing the Baby Out with the Patriarchy

Throughout the history of Europe and its former new world colonies, families have been a central unit for defining legal rights and duties, including those related to citizenship and immigration. Less than a century ago, a woman and her children automatically gained or lost citizenship in the U.S. and many other countries upon her marriage to a citizen or noncitizen. The family was treated as one unit reflecting the legal identity of the father-husband as “head of family.” Fortunately, the United States and other governments have increasingly recognized women – and, to a lesser extent, children – as independent persons with separate identities under the law. Women no longer lose their U.S. citizenship when they marry foreign men, and children born out of wedlock now may inherit their parents’ citizenship. However, the move away from a patriarchal legal definition of family has coincided with decreasing respect for marital and family unity as a basis for citizenship and immigration rights. While family unification remains a loadstar for immigration law, it already has been limited in numerous ways. The President of the United States and many members of Congress currently propose to limit it further. State legal definitions of family have become more liberal and egalitarian over time. In general, the formal rules regulating marriage are now gender neutral, and states now recognize biracial spouses, same-sex spouses, and, increasingly, de facto family relationships. While moving more slowly than state family law, federal birthright citizenship law also has liberalized its recognition of family status. But it has continued to limit family recognition to legal relationships, such as marriage and presumed parentage, and to biological parent-child relationships. De facto “parents” or “spouses” are not recognized. At the same time, it has begun focusing much more on biology, and family unity has been eroded as an inviolable principle. Three important forces have contributed to the trend deemphasizing family unity in the context of immigration and citizenship: (1) popular immigration restrictionism with significant racist and xenophobic elements; (2) the administrative desire for clear and simple definitions; and (3) the continuing popular desire for family unity. These forces help explain the trends introduced above. Decreasing racial obstacles to the use of family-based citizenship and immigration has changed the complexion of families being united, which may partially explain current proposals to dramatically cut family-based immigration. In light of the administrative interest in certainty and simplicity, technological developments such as genetic testing explain the shift from a traditional focus on legal and presumed paternity to the new focus on biological parentage, particularly in cases stemming from the use of assisted reproductive technology (ART). Finally, the history summarized below demonstrates a paradigm shift from a view of immigrant families as a single unit legally reflecting the husband-father who heads it, to a view of immigrants as sometimes-related individuals, each of whose immigration and citizenship status will be assessed independently. There is a great deal worth discussing about the liberalization of the definition of family membership and the coinciding de-emphasis on family-based immigration. But I will focus today on family-based citizenship acquisition, particularly on jus sanguinis automatic citizenship transmission from U.S. citizen parents to their children born abroad. (The Fourteenth Amendment clarifies the citizenship of almost everyone born on U.S. soil, so jus sanguinis citizenship is limited to children born abroad.) I will illustrate changes in this area, with three simplified snapshots in time: 1865, 1920, and today