Scott Titshaw, A Modest Proposal: To Deport the Children of Gay Citizens, & Etc.: Immigration Law, the Defense of Marriage Act, and the Children of Same-Sex Couples (August 18, 2010). Available at SSRN: http://ssrn.com/abstract=1661276
The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. It might also have a tragic unintended effect on some parent-child relationships.
The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “step-parent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. Parent-child relationships determine whether a person can legally join her family in the U.S., be deported, or even qualify as a citizen upon birth abroad. Therefore, if DOMA affected parent-child recognition under the INA, it would have profound implications for the growing number of same-sex couples living with children in U.S. and foreign jurisdictions that recognize their marriages.
This article explores the language, context, legislative history, and purposes of both DOMA and relevant sections of the INA. In the absence of reported cases on point, it reviews opinions in related areas, such as the recognition of children born to concubines or second-wives in polygamous marriages. Finally, it analyzes each relevant section of the INA in turn, concluding that DOMA does not proscribe recognition of parent-child relationships resulting from same-sex marriages under most, or all, of the sections.
