News that the Justice Department is delaying cases involving married same-sex couples in anticipation of the repeal of Defense of Marriage Act -- coming just after the President's decision to stop deporting young illegal immigrants -- makes "stalling while awaiting some other branch of the federal government" seem like the hot immigration policy strategy of the week.
Unlike with Obama's shift on illegal immigrants, the Department of Justice hasn't officially announced a change of tactics in its enforcement policies with regard to gay couples, but Chris Geidner of the D.C-based Metro Weekly examined several cases in which Board of Immigration Appeals officials requested follow-up before deciding whether to grant visas or remove non-citizens. According to Lavi Soloway, an attorney arguing on behalf of the couples, the tactic shows the DOJ's assumption that "there may very well be, a year from now, a post-DOMA world." BIA officials appear to be following suit on Attorney General Eric Holder's decision last year to vacate a ruling against a man in a New Jersey civil union who faced removal.* From Geidner:
Holder, among other questions, had asked the BIA to resolve "whether [Dorman]'s same-sex partnership or civil union qualifies him to be considered a 'spouse' under New Jersey law" and "whether, absent the requirements of DOMA, respondent's same-sex partnership or civil union would qualify him to be considered a 'spouse' under the Immigration and Nationality Act."
As in, "is everything here in order except the fact that your marriage is invalidated by Section 3 of DOMA?" All four cases examined by Geidner ask similar questions, which looks like they are buying time for these couples by preparing their files for a day when they can settle cases in a DOMA-free world. This is the executive branch saying, "Hey Supreme Court, we could kind of use a permanent answer here."
When President Obama issued an executive order giving young illegal immigrants reprieve from deportation, critics pointed out that the order didn't provide them that much security because it was only a temporary fix. Sen. Marco Rubio called it "a short term answer to a long term problem." Obama pointed out that he'd prefer a permanent one but for that he'd need a more favorable Congress. "Send me the DREAM Act, put it on my desk and I will sign it right away," he said in his remarks Friday. In other words, "Hey Congress, we could kind of use a permanent answer here."
This immigration angle also gives a little more urgency to the question of when and in what order the Supreme Court will take up DOMA. Ever since a federal court found DOMA unconstitutional, shortly after which the U.S. 9th Circuit Court of Appeals declined to rehear the challenge to California's Prop. 8, the question has become, when and in what order will the Supreme Court take up the two big gay marriage cases that coincidentally are coming to a point at the same time? The answer is probably sometime next year, but as Jacob Combs writes in the Huffington Post, "Any answer to this question is necessarily rooted in the imprecise tea-leaves science of court watching." Of course California couples are probably quite anxious and hopeful the court will strike down Proposition 8 quickly. But for couples affected by DOMA, particularly international couples, the fact that the government is setting itself up on fact finding missions just to buy time before it has to deny one half of the couple a visa seems like an especially, concretely urgent reason to have the Court to rule on DOMA.
Correction: The post originally misspelled the name of Lavi Soloway, lawyer to the gay couples whose cases Geidner examined. Additionally, the post originally stated the New Jersey partner whose decision Holder vacated sought a green card. He actually sought a "cancellation of removal." Apologies for the errors.