Does the recognition of same-sex marriage in Pennsylvania have any effect on immigration visa petitions for Pennsylvania citizens?

by Mercedes Bugallo (Summer Associate)

Immigration visas, unlike marriage recognitions, are regulated by the federal government, not the individual states.  This means that the Pennsylvania Whitewood decision, albeit groundbreaking on a state level, has no effect on a same-sex couple’s application for green cards or fiancé visas.

Fortunately, however, the federal government has been treating both same-sex and opposite-sex married couples alike for immigration purposes since shortly after the U.S. Supreme Court declared the federal Defense of Marriage Act (“DOMA”)
unconstitutional in 2013, in the case of United States v. Windsor.  Before Windsor, a U.S. citizen could not sponsor his or her foreign spouse for a green card or fiancée visa. Now, bi-national same-sex couples are afforded the same consideration as opposite-sex couples for immigration purposes.  Indeed, according to the U.S. Citizenship and Immigration Services (USIS), which is the organization in charge of the visa process for spouses of American citizens, USIS reviews immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.

Keep in mind that “the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. . . . The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.” In other words, USCIS will consider visa petitions of same-sex couples who have a valid marriage license from a U.S. state or foreign country where same-sex marriage is legal, even if the couple lives in a state that does not recognize same-sex marriage. But, it will not consider visa petitions for same-sex spouses whose marriage was performed in a country or state that does not recognize same-sex marriage, even if the couples lives in a state that does recognize same-sex marriages, because the marriage was not lawfully entered into.

 The U.S. Citizenship and Immigration Services’ FAQ section for same-sex marriage applications and benefits can be found at: http://www.uscis.gov/family/same-sex-marriages.

Are out-of-country same-sex marriages (e.g., Canada) now recognized in Pennsylvania?

by  Mercedes Bugallo (Summer Associate)

Seventeen countries have legalized marriage for same-sex couples nationwide (Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, New Zealand, Britain, and Luxembourg).  Two others allow same-sex marriage on a regional basis (Mexico and the United States).

Same-sex couples who married abroad can rest assured that the state of Pennsylvania will automatically recognize their marriage. There is no formal process or forms to fill out for the marriage to be recognized in the state.

However, marriages from other countries are not automatically registered in the Commonwealth of Pennsylvania. This means that while Pennsylvania will recognize foreign marriages of same-sex couples, it will not maintain records of those marriages, because marriage records are maintained by the jurisdiction that granted the marriage license. Same-sex couples getting married abroad should, therefore, obtain certified copies of their marriage license from the country in which it took place. There are a various reasons why someone may need a copy of his or her marriage record. For example, proof of marriage may be required for name changes, to collect Social Security or pension benefits, for adoption purposes, and for some passport applications.

For more information, listen to Equality Pennsylvania’s “Questions and Answers about Marriage in PA”: http://www.equalitypa.org/questions-and-answers-about-marriage-in-pa/

By:  Alaura Maglio (Summer Associate)

Question: Does Whitewood v. Wolf Provide Any Protection from Sexual-Orientation Discrimination in Pennsylvania?  

In Whitewood v. Wolf, a federal judge struck down a Pennsylvania law that limited the definition of marriage to that between “one man and one woman.”  In his momentous opinion, Judge Jones also declared that classifications based on sexual orientation are subject to “intermediate scrutiny.”   As a result, when a state or local law classifies people (i.e. discriminates) on the basis sexual orientation, the government must prove that this classification is substantially related to an important government purpose.  This is quite a difficult standard to meet.

As this language indicates, to receive legal protection for discrimination, there must first be an applicable law.  It is important to understand that unfair or discriminatory treatment, on its own, is probably not an illegal practice.   For instance, we know that employers employees aged 40 or older are protected against being fired because of their age.  However, this is not just because discrimination is a bad practice; it is because a federal law, the Age Discrimination in Employment Act (ADEA), prohibits such practice.  Had Congress not passed the ADEA, there would be no law barring employers from firing employees based on their age, and such discrimination would not be illegal.

In sum, Whitewood only announced how rigorously a court must examine the purpose of an existing law.  There is currently no statewide Pennsylvania law that protects against sexual orientation discrimination.  Judge Jones did not create a law prohibiting discrimination based on sexual orientation (nor could he have done so).

There is, however, pending legislation in Pennsylvania that would provide some of these protections.  Senate Bill 300 seeks to add “sexual orientation” and “gender identity or expression” to the protected categories under the Pennsylvania Human Relations Act (PHRA).  If Senate Bill 300 were to pass, it would allow persons discriminated against in employment, housing or public accommodation because of their sexual orientation or gender identity or expression to seek redress under the PHRA.   For example, if an employer fired an employee because of her sexual orientation, she could bring a claim to the Pennsylvania Human Relations Commission (PHRC).   If the former employee proved to the PHRC that she was terminated because of her sexual orientation, she could receive redress as provided by the Act.  Such redress includes: compensation for loss of work, reinstatement to her former position, and an order to the employer to pay a civil fine.  However, keep in mind that there is no law in Pennsylvania that regulates purely private conduct.  Outside of employment, housing, or public accommodations, Senate Bill 300 would not protect against or provide remedies for discrimination.

In sum, Whitewood represents an important step toward providing increased protections to the LGBT community by requiring courts to closely examine potentially discriminatory laws.  However, the court’s opinion does not provide recourse for discriminatory practices, and it also represents the conclusion of just one judge.  Such protections can be provided at a state level by the passage of laws like Senate Bill 300.