Same Sex Marriage

C

cregan

Registered Users (C)
Hi Everyone,

I miss this forum :) I visit once in a while, but feel out of it as I'm done. I need to get back into it. My little brother is eligible to apply for N400 in December. I had ask the question previously, but because it's been a while I want to ask again and get more details. He lives in Cali and he got married (same sex marriage). For federal tax purpose the marriage is not recognized, for the State it is. I'm assuming for the citizenship application he will file single? If so, isn't that lying? When he has the interview, will the IO discriminate on his choices?

Thanks for your input

(pls be nice) :)
 
cregan said:
For federal tax purpose the marriage is not recognized, for the State it is. I'm assuming for the citizenship application he will file single?
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Yes. Federal law does not recognize same-sex marriage. It's not lying.

When he has the interview, will the IO discriminate on his choices?
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Exceptionally unlikely. However, I don't see any reason why he needs to disclose the existence of his marriage.
 
cregan said:
Hi Everyone,

I miss this forum :) I visit once in a while, but feel out of it as I'm done. I need to get back into it. My little brother is eligible to apply for N400 in December. I had ask the question previously, but because it's been a while I want to ask again and get more details. He lives in Cali and he got married (same sex marriage). For federal tax purpose the marriage is not recognized, for the State it is. I'm assuming for the citizenship application he will file single? If so, isn't that lying? When he has the interview, will the IO discriminate on his choices?

Thanks for your input

(pls be nice) :)
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You are correct that the federal law does not recognize same sex marriage. The so-called "Defense of Marriage Act of 1996" says that the federal government defines marriage as a legal union exclusively between one man and one woman. As far as I know, this law has not been overriden by any subsequent federal laws and has not been overturned by the courts.

I think in the case of your brother he can answer either "single" or "married" to the marital status question and both answers would be technically correct.

I do not believe that his N-400 application would be adversely affected if he discloses to the IO the fact that he is in a same sex marriage.
 
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Save him trouble and tell him to check single, in order to avoid trouble with a possibly bigot I/O.
 
baikal3 said:
I do not believe that his N-400 application would be adversely affected if he discloses the fact that he is in a same sex marriage to the IO.
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Is it speed-reading, or sometimes the eyes just want to lie?

the fact that he is in a same sex marriage to the IO.​
 
I would suggest to answer "married" because of the single fact that he indeed got married according to the laws of California. The Supreme Court of California ruled that his marriage remain valid, so he is married from the state's point of view. Whether the federal government wants to recognise his marriage or not, it is not for him to figure out. Plus, it will be the most correct option to check.
 
König said:
I would suggest to answer "married" because of the single fact that he indeed got married according to the laws of California. The Supreme Court of California ruled that his marriage remain valid, so he is married from the state's point of view.
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Yes, but the State of California has as much jurisdiction over US immigration as the Republic of Kazakhstan - none. The only definition of marriage which matters in an immigration proceeding is what US federal law defines it as, and same-sex marriage doesn't qualify.
 
TheRealCanadian said:
Yes, but the State of California has as much jurisdiction over US immigration as the Republic of Kazakhstan - none. The only definition of marriage which matters in an immigration proceeding is what US federal law defines it as, and same-sex marriage doesn't qualify.
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I understand that. However, he has gotten the same marriage certificate as any other couple in California, and it is not his fault that the federal government created this confusing situation with the marriage. It is not in the jurisdiction of federal government to marry people, so they rely on state-issued documents pertaining to marriage. If they decide to discriminate amongst people who hold valid certificates from the same state, then they should correct N-400 applications with "invalid" marriages themselves. It is better to be on the safe side and let an IO to correct it during the interview than simply put "single, never married".
 
TheRealCanadian said:
Yes, but the State of California has as much jurisdiction over US immigration as the Republic of Kazakhstan - none. The only definition of marriage which matters in an immigration proceeding is what US federal law defines it as, and same-sex marriage doesn't qualify.
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The question on N-400 is not "are you married according to the federal law's definition of marriage". In the U.S. marriage has always been the province of the states and the federal government does not issue marriage licenses. The OP's brother has a valid marriage license issued by a U.S. state, and the validity of the marriage was confirmed by the Supreme Court of that state.
So I think the answer "married" would be perfectly justified in this case, probably more justified than "single" (although IMO both answers are technically correct here).
 
baikal3 said:
The question on N-400 is not "are you married according to the federal law's definition of marriage".
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With the N-400 being a Federal form, every word of every question is according to the Federal definition of it unless stated otherwise.
In the U.S. marriage has always been the province of the states and the federal government does not issue marriage licenses.
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That doesn't mean the Federal government can't have their own definition of marriage.
 
Jackolantern said:
That doesn't mean the Federal government can't have their own definition of marriage.
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Actually, I think it does and I think the DOMA law is unconstitutional on several grounds. For example, IMO, it violates the "Full Faith and Credit" clause of Article IV of the U.S. Constitution. That clause has been consistently interpreted in the past to mean that things like marriage licences, adoption decrees and orders of protection issued by one state should be honored by all other states and by the federal government.
There is also a problem with DOMA in terms of the equal protection clause of the 14-th Amemndment. Finally, arguably, the act contradicts Article I of the U.S. Constitution which specifically limits the powers of the federal government to certain explicitly enumerated areas (of which regulation of marriage is not one) and vests all other powers in the states and the people.
In this last regard marriage has always been understood to be the province of the states; I do not believe that the federal government has the right to invalidate a marriage license issued by a state, at least not without amending the U.S. Constitution first.

As far as I know, there are several pending federal lawsuits against DOMA on constitutional grounds.
 
baikal3 said:
In this last regard marriage has always been understood to be the province of the states; I do not believe that the federal government has the right to invalidate a marriage license issued by a state, at least not without amending the U.S. Constitution first.
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They surely don't have that right when it comes to state benefits, but I think the courts will find that the Federal government does have the right to grant or refuse Federal benefits based on a Federal definition of marriage. And remember we're talking about a marriage involving an alien. Once an alien is involved, several Constitutional rights (not all, thankfully) and other legal rights go out the window. For example, look at how USCIS can override the state definition of what is a "conviction", and how some immigration penalties were made retroactive (i.e. the 1996 law that retroactively turned some offenses into deportable crimes).

Until the Federal courts or Congress say otherwise, for now the Federal definition of marriage does not include same-sex.
 
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In the end, you can either put married or not married..it won't change a thing since same sex spouse won't receive any immigration benefit.

Gay Marriages

Can a gay marriage (even in a state where these are legal) be the basis for a Form I-130, Petition for Alien Relative, for purposes of immigration? For the purposes of immigration, a marriage’s validity is a question of Federal law, not of State law. In 1996, Congress clarified the Federal law concerning recognition of marriage by enacting the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996). The DOMA contains a statutory definition of "marriage," and of the related term, "spouse." Pursuant to the DOMA, in order for a relationship to qualify as a marriage for purposes of Federal law, one partner must be a man, and the other must be a woman. This definition applies to the construction of any Act of Congress and to any Federal regulation. USCIS must, therefore, administer the Immigration and Nationality Act in light of the DOMA, and cannot recognize the validity of any same sex marriage.


http://www.uscis.gov/portal/site/us...toid=5aa3e6b0eb13d010VgnVCM10000048f3d6a1RCRD
 
The bottom line is that the OP's brother is married. Not providing benefits to same-sex couples does not equal putting "single, never married" on N-400. Besides, this question is irrelevant in this situation because the applicant is not seeking any benefits based on his marital status.

On a side note, I think that the DOMA should be repealed, and the federal government should go by the state's definition of marriage instead. I agree with baikal that DOMA violates the "Full Faith and Credit" clause of article lV.
 
Guys,

Just like the US govt, I don't recognize same sex marriage. It is unnatural for two men or women to be together, let alone share a bed. This isn't a question of bigotry or hatred, of natural laws as we found them set on stone when we born into this world. Whatever the CA Supreme Court decided, it is irrelevant to the federal law...:cool:

For support of this behavior, how do the gays and lesbian procreate? :confused: The use of artifical insemination is out of question, because you are planting a semen into a woman's womb which was produced by a man. Cheney's daughter can have as many kids as she would like, the fact remains gays and lesbian won't procreate on their own, cause it is unnatural...:p

In my view, anytime you have more than two balls and jock straps in the same bed, problems are bound to happen.....eek:
 
König said:
Besides, this question is irrelevant in this situation because the applicant is not seeking any benefits based on his marital status.
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Exactly, so either way it wouldn't make a difference in this case. It's not like USCIS would claim he failed to disclose the marriage and therefore lacks moral character. On the other hand, if he did disclose it, IO may strike it out and say "USCIS does not recognize same sex marriage, and therefore should not be disclosed on the N-400 federal application"

That brings up an interesting question: If USCIS does not recognize same sex marriage, how do they deal with same sex bigamy or polygamy if the applicant was never convicted of either?
 
Al Southner said:
Guys,

Just like the US govt, I don't recognize same sex marriage.
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Yet unlike the government, your opinion in this issue doesn't matter one bit as regards to laws, immigration or other government benefits. I also don't recall anyone asking you anything related to what you recognize or do not.
 
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