The recent DOMA decision has received as much criticism as it has praise. Recently former White House counsel Alberto Gonzalez voiced a highly publicized dissenting opinion on the interpretation of United States v. Windsor which posits the position that immigration benefits should not be awarded to same-sex, bi-national couples. Their disagreement with the decision has been met by from opposition from counselors Gary Endelman and Cyrus D. Mehta as well as BIA and the Obama administration.
Gonzalez, now a professor of law at Belmont University Law School forms his argument around the basis of congresses plenary power over immigration and more importantly that the decision in United States v. Windsor did not in fact overrule the earlier decision of Adams v. Howerton which contends that, the them “spouse” did not apply to the same-sex couples under the Immigration and Nationality Act. According to Gonzalez, federal immigration benefits should only be applied to same-sex marriages entered into states which allow them by law.
Shortly after Gonzalez’s publication, opposing voices were heard in the form of a public response authored by Gary Endelman and Cyrus D. Mehta. Endelman, now Senior counsel ad Fostergroup takes the position that DOMA does not fit the typical mold for immigration law decisions up to date. More specifically his counter argument states, “What the Op. Ed. Does not tell us is the dramatic extent to which DOMA was an aberration, a break from the long-standing American tradition that the regulation of marriage belonged to the states”. He goes on to provide extensive case law against Gonzalez’s position – the full editorial can be found here.
The Obama administration along with BIA support Endelman’s argument and further the position that the Defense of Marriage Act is no longer “an impediment for same-sex couples”.
The momentum of DOMA seems to have swept up popular opinion in the public as well as in government administrations. However, the question of whether will Gonzalez or another individual provide a retort to Endelman and Mehta’s response remains unanswered.