Say “I Do”: The Judicial Duty to Heighten Constitutional Scrutiny of Immigration Policies Affecting Same-Sex Binational Couples
Cori K. Garland, 84 Ind. L.J. 689 (2009)
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This Note will explore the constitutionality of immigration law’s discrimination against same-sex binational couples-that question is contingent upon the constitutionality of same-sex marriage bans in general-and the role the judiciary should play in remedying this situation. Part I evaluates the constitutionality of same-sex marriage bans and argues that a heightened form of scrutiny should be applied to challenges to these bans. Part II describes current immigration law, its overarching policies, and how these laws affect same-sex binational couples. Part III scrutinizes Congress’ plenary power and the judiciary’s deference to this power despite the historical use of immigration law to discriminate against gays and lesbians and various ethnic groups. Finally, this Note proposes that the discrimination against U.S. citizens in same-sex binational couples warrants heightened judicial scrutiny of immigration laws and less deference to Congress’ plenary power than what the courts historically have given to immigration matters.
