In a highly-anticipated decision, the United States Supreme Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. June 26, 2015). The Court held that “same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.” Id.
In reaching its decision, the Court examined how marriage has evolved over the years and noted that “it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change.” The Court noted that “[t]here is no difference between same- and opposite-sex couples with respect to this principle” and yet same-sex couples have been harmed in many ways. They were “consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” This exclusion has “the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. June 26, 2015)
The Court recognized the urgency of resolving this legal disability and discrimination:
“The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” (citation omitted) This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Id.
Prior to this decision, the attorneys in Zneimer & Zneimer pc have witnessed the injustice same sex couples suffered. Even after the Administration announced that same-sex couples can petition for a spouse, the legal disability imposed by the states continued. For example, a U.S. citizen that lived in Wisconsin could not file a state income tax with the same-sex spouse because the State of Wisconsin refused to recognize the same-sex marriage. Now, the State of Wisconsin and other states can no longer discriminate same-sex couples.
However, U.S. citizens petitioning for same sex spouses or fiances continue to face challenges abroad. Many countries have blasphemy laws or secular laws that criminalize same sex relationships. Our LGBT clients continue to be vulnerable. We strongly urge anyone that wishes to petition for a foreign spouse or fiance to contact an immigration attorney to ensure that your loved one will not be exposed to danger as a result of the petition.