Alberto Gonzales and David Strange Are Wrong About SSM and Immigration

By Mike Dorf

In a NYTimes Op-Ed last week, former Attorney General Alberto Gonzales and immigration attorney David Strange argue that a three-decades-old decision of the U.S. Court of Appeals for the Ninth Circuit--Adams v. Howerton--obligates the Obama Administration to exclude same-sex spouses of U.S. citizens at the border, notwithstanding the Supreme Court’s invalidation of the Defense of Marriage Act in the Windsor case last month.  I think they are wrong for a number of reasons.

(1) Adams is not and never was binding on the whole country.  At most it was binding in the states comprising the Ninth Circuit--although even then, there is at least some authority for the executive branch adopting a uniform national policy even though it contradicts the law in particular circuits.  I'm not a big fan of this "non-compliance" approach when (as during the Reagan Administration) it puts individuals to the expense of bringing lawsuits to vindicate their rights, but it seems to me quite different when, as here, the government would be providing people with more rights than the court in some circuit says they're entitled to.

(2) Adams was based in part on deference to the executive branch.  The Ninth Circuit stated:
Where a statute has been interpreted by the agency charged with its enforcement, we are ordinarily required to accord substantial deference to that construction, and should follow it "unless there are compelling indications that it is wrong." [citations].  Thus, we must be mindful that the INS, in carrying out its broad responsibilities, has interpreted the term "spouse" to exclude a person entering a homosexual marriage.
To be sure, the Ninth Circuit went on to find independent support for the conclusion that the statute, standing alone, was sufficient to render same-sex spouses ineligible for the immigration status that otherwise-similarly-situated opposite-sex spouses are entitled to.  But the Ninth Circuit did not say--because it had no occasion to say--whether the statute was so clear that it would render the Obama Administration's position invalid.

(3) Windsor supersedes Adams.  Gonzales and Strange argue that Windsor is irrelevant because Adams relied on the immigration statute itself, not the Defense of Marriage Act, for its conclusion that in the immigration context, Congress meant "spouse" to cover only traditional opposite-sex spouses. Perhaps Windsor should have left that option open but it didn't.  The Court's analysis proceeded in three steps: (i) The Court acknowledged that Congress has, in some instances, expressly adopted a federal definition of marriage (or other domestic relations terms) in the exercise of its enumerated powers; but (ii) went on to say that, in light of the states' traditional reserved power over domestic relations, federal courts have treated federal law as incorporating state law definitions of marriage; and (iii) invalidated DOMA on equal protection grounds.  Crucially, the Court then simply affirmed the Second Circuit ruling, which in turn affirmed the district court ruling that treated Windsor as a spouse for purposes of federal taxation law.  The Court did not undertake any further inquiry into whether the Congress that enacted the estate tax meant to limit the spousal exception to opposite-sex spouses. 

Consequently, and in light of (i), as a matter of statutory construction, Windsor is best read for the proposition that where a federal statute uses the word "spouse" but does not expressly indicate whether it thereby means to include or exclude same-sex spouses, it should be read to incorporate state law.  (I say this is how to read Windsor as a matter of statutory construction because, as a matter of constitutional equal protection, Windsor may have implications for whether state law must recognize SSM.  In dissent, Justice Scalia thought it would, while CJ Roberts thought it should not.  Time will tell.)

Therefore, to the extent that Gonzales and Strange are making the argument that even absent DOMA, each federal statute that uses the term spouse must be parsed to determine whether the Congress that enacted it meant to include or exclude same-sex spouses, I think they are plainly wrong.  Windsor establishes a presumption in favor of incorporation of state law that only express statutory language can overcome.  And the federal immigration law contains no relevant express statutory language.

(4) Perhaps, however, Gonzales and Strange could be read to say that while Windsor generally means that federal law follows state law on the definition of marriage, immigration is different.  They refer to the so-called "plenary power doctrine," stating that "Congress has almost total power over immigration, and its decisions in this realm are subject to limited judicial review."  Fair enough, but that still leaves us with the question of what Congress did with respect to immigration.  And it's important to remember that Congress no more expressly barred same-sex spouses here than it did in the estate tax.

Gonzales and Strange endorse the reasoning of the 1982 Ninth Circuit opinion in Adams, but that opinion in turn relied on the subjective animus of Congress.  The Ninth Circuit said that when, in 1965, Congress expressly made an alien's homosexuality a ground for affirmative exclusion from the country, even if he or she was otherwise eligible to immigrate, it could not possibly have also meant to include same-sex spouses under the preferential treatment for family members of citizens.  I think that's undoubtedly a fair inference insofar as inferring the subjective intent of the Congress that wrote the current version of the immigration statute is concerned.  But there's nothing in that line of analysis that distinguishes immigration law from any other federal law.  The Congresses that wrote "spouse" in the thousand-some-odd other federal statutes also undoubtedly had in mind to exclude same-sex spouses.  But unless they said so expressly--and without animus, if that is possible--under Windsor, state law prevails.

(5) My point in (4) is that simply as a matter of post-Windsor statutory construction, same-sex spouses should count as spouses for immigration purposes.  The plenary power doctrine might come into play if, contrary to that analysis, one were to say that Congress did define spouse in the immigration context as limited to opposite-sex spouses.  At that point, the question would arise whether an equal protection challenge could prevail.  There is authority for upholding immigration laws against challenges based in constitutional rights when laws addressing other topics would be invalidated based on challenges of equal strength.  I think some of that authority is misguided, but Gonzales and Strange are right that it exists.  However, as I've endeavored to demonstrate, it's largely irrelevant, because one doesn't get to the constitutional question: As a matter of statutory construction, Windsor means that absent express language otherwise, spouse includes state-recognized same-sex spouse.

(6) At the very least, the Administration's policy to that effect is within the realm of permissible interpretations, and thus entitled to deference from the courts.  Given his association with a past Administration that believed strongly in judicial deference to executive authority, Alberto Gonzales ought to recognize as much.