In Febuary 2011, President Obama declared that the Department of Justice would no longer be defending the Defense of Marriage Act (DOMA) in certain Courts of Appeals. This radical stance change has had a profound effect on undocumented aliens and foreign nationals in the LGBT community. However, due to certain legal realities, the DoJ has had to continue with its defense of DOMA in certain parts of the country.
Prior to February 2011, the government had a very clear position on DOMA, namely that they would defend the law at all costs. They used several rationales to justify their defense of the law: Congress passed it and thus the DoJ must uphold the laws of the land; the president had instructed the executive branch (which the DoJ is a central part of) that they must continue to enforce it until DOMA is repealed; that marriage is about having children and that gay couples do not make good parents. Some arguments were stronger than others.
After February 2011 the DoJ’s position changed drastically. The DoJ effectively admitted that DOMA is unconstitutional by stating that “DOMA is not just an immigration issue; any law that targets people based on their sexual orientation is unconstitutional.” While this statement may suggest that the DoJ will be taking the same simple, clear-cut approach that they took in defending DOMA (but now in reverse) the reality is anything but simple.
The President’s statement of DOMA’s unconstitutionality does nothing to keep the DoJ from defending it in a Court of Appeals circuit. These nine circuits are grounded in federal law but each circuit sets its own precedents. When it comes to the particular defense of DOMA, the DoJ has used “Rational Basis” to defend it. Thus, if a circuit allows “Rational Basis” to be used in the defense of DOMA, then the DoJ must defend the law in those courts. If the circuit has set no precedent, or has stated that Rational Basis may not be used to defend the law, then the DoJ is not obligated to defend it.
Rational basis review is the most deferential standard of review that federal courts use to evaluate the constitutionality of legislation when challenged on due process or equal protection grounds; however, just because a law discriminates does not mean that certain “discrimination” is unconstitutional. For example, US lawful permanent residents are not allowed to vote-a clearly discriminatory law that has never been challenged as unconstitutional (although it should; permanent residents pay taxes like everyone else and should have a right to elect their officials).
This lack of accord among the CA circuits has not only put the DoJ and the DHS in the unenviable position of having to, in some circuits, defend a law that has been declared unconstitutional, but has also made life for undocumented LGBT aliens and LGBT foreign nationals in valid status that much more complicated. However, the DHS does have one thing working for them in the form of Prosecutorial Discretion. Prosecutorial Discretion allows the DHS to decline to detain and deport an alien that it decides is not a dangerous threat to the United States. The DHS has made clear that its enforcement priorities are national security, public safety, border security and repeat immigration law violators. Since foreign nationals in same same-sex couples rarely fall into any of those categories, they may qualify for prosecutorial discretion.
As it stands, the DoJ does not seem too eager to prosecute same-sex couples, but it is bound by law to continue to enforce DOMA. Until DOMA is repealed or deemed unconstitutional, or there is a change in executive policy, this situation will continue as is.