Marriage Without Papers Ok, Says CLINIC

by Dave Bennion

category: Immigration Law

Published June 14, 2009 @ 07:09PM PT

CLINIC has issued a useful memo (pdf) on whether state and local officials have any legal basis for denying marriage licenses to applicants who don’t have a valid Social Security number.  The short answer: they don’t.

Nevertheless, based on a misreading of applicable federal law, county clerks in a number of states have implemented a policy of denying marriage licenses to applicants who can’t produce a Social Security number.  The federal government examined the issue and found that this reading of the law is wrong.  Each state attorney general that has issued an opinion on the issue (Michigan, Ohio, Virginia, South Carolina, North Carolina, Tennessee, North Dakota, and Florida) decided that the state cannot deny a license to applicants who do not have a Social Security number.

Why is this important?  In many cases, a person who entered the U.S. lawfully, overstayed the visa, and then married a U.S. citizen can apply for a green card based on a petition filed by the U.S. citizen spouse, provided it is a bona fide marriage not entered into solely for immigration purposes.  [Note: Every case is different and there are a million ways to get deported, so it’s best not to file anything with Immigration without the advice of a reliable lawyer.]

The U.S. Supreme Court has held that the right to marry is a fundamental constitutional right.  In Loving v. Virginia, the Court noted that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.”

This issue has been litigated in federal court here in Pennsylvania, and the court found that the policy of denying a license unconstitutionally infringed on the fundamental right to marry of both the undocumented immigrant and his U.S. citizen fiancée. Buck v. Stankovic, 485 F.Supp.2d 576 (M.D. Pa. 2007).

Kudos to CLINIC for providing this useful tool for immigrants trying to start a family and get back into legal status.  One of the Catholic Church’s principal reasons for getting involved in the immigration policy debate in the U.S. and elsewhere is the harmful consequences flawed immigration laws so often have on families.

I hope the day will come when the Catholic Church and other churches will acknowledge the harm that prohibitions on same-sex marriage and limitations on immigration benefits for same-sex couples cause to families, and act accordingly.

[Image: uploaded to Flickr by Thomas Hawk]