“We love each other. We want to share our lives and raise a family and be happy like everyone else,” said Morales, 39, who came to the United States six years ago and has since been hopping between work and student visas. “Our families are very supportive. We are good people and we have worked hard to make a contribution. We deserve equality.”
Morales and Costello, 30, an elementary school teacher of English as a second language, are among a growing number of binational gay couples who are caught between state laws that allow them to marry and federal laws that bar the U.S. citizen spouse from sponsoring the immigrant spouse for legal residency. Advocates estimate that more than 36,000 such couples are in the same situation.
The 1996 Defense of Marriage Act, known as DOMA, defines marriage as the legal union between and man and a woman. It denies gay spouses a long list of federal benefits, including access to pension and inheritance funds after their partner dies, as well as blocking their right to immigrate through marriage.
However, 10 states and the District have moved to legalize gay marriage since DOMA was passed. As the concept of same-sex legal unions has gained more public acceptance, a legal and political movement against DOMA has grown. Lawyers for the Obama administration have found that portions of the law are unconstitutional, and federal courts in eight cases around the country have agreed.
Two weeks ago, the Supreme Court announced it would hear arguments on the law’s constitutionality this spring, based on a challenge by the American Civil Liberties Union in which Edie Windsor, a widow whose same-sex spouse died, was forced to pay $363,000 in federal estate taxes that a husband would not have had to pay.
If the high court rules in favor of Windsor, it will wipe out the same section of DOMA that denies immigration rights to gay foreign spouses. In the meantime, a coalition of national rights groups and some lawmakers have asked the Obama administration to defer all pending green card petitions for gay spouses until the Supreme Court rules.
“This law hurts same-sex couples in many ways, and immigration is one of the cruelest,” said Ian Thompson, a legal adviser at the ACLU in Washington. He noted that when DOMA became law, it was mostly symbolic, because no states allowed same-sex marriage. “Today, you have thousands of couples whose legal marriages are not recognized by the federal government,” he said. “Now the harms are tangible.”