Our latest Footnote Forum installation comes from Professors Janet M. Calvo, Shirley Lung, and Alizabeth Newman.*

Janet M. Calvo, Shirley Lung, Alizabeth Newman^†

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Non-citizens who are afforded Deferred Action for Childhood Arrivals (DACA) qualify for New York State bar membership. Over four hundred thousand young people in the United States have been approved for DACA, a program for non-citizens who came to the United States as children.[1] Approximately one percent of DACA-eligible non-citizens have pursued graduate education,[2] including law school. The admission of those approved for DACA to the bar is supported by New York statutes and the constitutional jurisprudence of the United States Court of Appeals for the Second Circuit and the New York Court of Appeals. The New York Judiciary Law explicitly precludes alienage as a basis for denial of bar admission. New York has a history of routinely admitting non-citizens to the bar; there is no categorical exclusion from bar admission of any particular category of law graduates based on immigration status. An individual’s immigration category does not determine whether he or she possesses the skills, competence, and moral character to serve as an advocate in the courts of New York and to ethically represent the best interests of clients.

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Caitlin E. Borgmann[1]

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Introduction

One might expect that a Supreme Court decision addressing the constitutionality of a citizen initiative that bars marriage between same-sex couples would yield a predictable political division among both the Justices and Court commentators. Liberal Justices and commentators, one might conjecture, would want the Court to recognize a fundamental constitutional right to marriage equality, while conservative Justices and commentators would prefer the issue be left to the political process. The Supreme Court’s recent decision in Hollingsworth v. Perry reflected no such tidy outcome, however. The majority opinion addressing California’s Proposition 8 (“Prop 8”), which amended the state’s constitution to exclude same-sex couples from legally recognized marriage, sidestepped the substantive issue through a procedural maneuver. Rather than reach the merits, the Court held that the official proponents of Prop 8, who had defended its constitutionality both in the district court and on appeal, lacked standing to appeal the district court’s opinion invalidating the initiative. The Court’s decision left marriage equality as the rule in California (although not elsewhere). Liberal Justices Breyer, Ginsburg, and Kagan joined Chief Justice Roberts’s majority opinion, as did Justice Scalia, while conservative Justices Thomas and Alito, and liberal Justice Sotomayor, joined Justice Kennedy’s vigorous dissent. Some liberal commentators who favor marriage equality applauded the Court’s decision.^[2]

It is of course not possible to know exactly what motivated each of the Justices in Hollingsworth. But standing is a doctrine that the Court has notoriously manipulated to reach desired results on the merits.^[3] Commentators have widely speculated that the liberal Justices who sided with the majority preferred not to reach the merits either because they believed there were insufficient votes to find Prop 8 unconstitutional,^[4] or because they believed such a decision might be politically premature and therefore counterproductive, as it might prompt a backlash.^[5] Some proponents of marriage equality were quietly relieved by the Court’s refusal to address the merits, since it allowed the district court’s invalidation of Prop 8 to stand without risking an adverse Supreme Court decision that would be binding on all states.^[6]

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We are proud to introduce Prof. Janet Calvo’s discussion of the Windsor decision’s impact on immigration law as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For more on this opinion, see Prof. Ruthann Robson’s related piece.

Janet M. Calvo*

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The Defense of Marriage Act (DOMA), barred federal immigration authorities[1] as well as other federal officials from recognizing same-sex marriages. Now that DOMA has been declared unconstitutional in U.S. v. Windsor,[2] the federal officials that implement immigration law have declared that same-sex marriages will be recognized to the same extent as opposite-sex marriages. This has implications for several aspects of immigration law and practice. On July 1, 2013 the Secretary of Homeland Security directed the U.S. Citizenship and Immigration Services (USCIS) “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,”[3] and the USCIS posted additional information about implementation.[4] On August 2, the Secretary of State similarly stated “when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,”[5] and the Department of State website provided further detail, in line with the USCIS position.[6]

Further, on July 17, 2013, the Board of Immigration Appeals (BIA) issued a decision[7] stating that DOMA was no longer an impediment to recognition of same-sex marriages; therefore, a same-sex spouse would be recognized under immigration law if the marriage were valid in the state in which it was celebrated, and was bona fide.[8] This case involved the non-citizen same-sex spouse of a U. S. citizen who had filed a petition on behalf of that spouse. The Director’s determination had found that the marriage was valid under the laws of Vermont where the marriage was celebrated, but did not grant the petition. The BIA held that, after Windsor, the sole remaining issue was whether the marriage was bona fide—i.e., whether the marriage was entered into solely for the purposes of immigration—and remanded the case to allow the Director to make that determination.

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We are proud to introduce Prof. Ruthann Robson’s comment on United States v. Windsor as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For a discussion of this decision’s impact on immigration law, see Prof. Janet Calvo’s related piece.

Ruthann Robson*

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A landmark. A victory for “gay rights.” An example of judicial activism.

Each of these appellations is an accurate descriptor of the Court’s decision in United States v. Windsor, rendered on the last day of the 2012–2013 term. By a bare majority, the Court declared Section 3 of the Congressional Defense of Marriage Act (DOMA) prohibiting federal recognition of same-sex marriages unconstitutional. The Court resolved the threshold issue of whether it had Article III power to hear the case, given the unusual posture of the litigation, in favor of rendering a decision, unlike the outcome in the companion case of Perry v. Hollingsworth involving the constitutionality of California’s Proposition 8.[1] The Court’s reasoning included a discussion of Congressional power to pass DOMA, given that marriage and other family matters are generally within the province of the states under federalism as it has developed in the United States. Ultimately, however, the issue was not one of Congressional power. Instead, the majority concluded that DOMA’s Section 3 violated the equal protection component of the Fifth Amendment.

The facts underlying United States v. Windsor have been subject to much media attention. Edith Windsor is a sympathetic and charismatic plaintiff, aged 83 at the time of the decision, whose monetarily specific injury consisted of the $363,053 she paid to the federal government in federal estate taxes because of the non-recognition of her same-sex marriage to her deceased partner, Thea Spyer.[2] The couple had been married in Canada in 2007, and their marriage was recognized by their home state of New York when Thea Syper died in 2009, although New York itself did not itself license same-sex marriages until 2011.[3] Thus, except for the operation of DOMA Section 3, Edith Windsor would have been considered a “spouse” under federal law and entitled to the spousal exemption from estate tax.

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