Wednesday, May 26, 2010
Titshaw: “The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA”
Scott Titshaw (Mercer University School of Law) has posted The Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a World Without DOMA, 16 William & Mary Journal of Women and the Law, 537 (2010) on SSRN. Here is the abstract:
An estimated 35,000
Reform options that would help these couples stay together
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,
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.