Many in the LGBTQ community are understandably worried about the future of gay rights in the wake of Donald Trump's victory in the presidential election. However, while the Trump Administration is poised to challenge measures built over the past years to protect the rights of LGBTQ people, we are of the present opinion that foreclosing immigration benefits to the LGBTQ community is highly unlikely.
A mountain of case law stands in the way of overturning marriage equality and the subsequent immigration benefits to same-sex married couples. Two Supreme Court decisions protect the right to marry. The Supreme Court recognized that marriage is a Constitutional right that extends to same-sex couples in 2015, in Obergefell v. Hodges. Prior to that in 2013, the Court held that the section of the Defense of Marriage Act (DOMA) denying federal benefits to same-sex married couples was unconstitutional, in United States v. Windsor. Shortly after Windsor, the Board of Immigration Appeals (BIA) issued a precedent decision called Matter of Zeleniak, which held that Windsor is to be applied to non-citizen same-sex spouses seeking immigration benefits. This case law, plus a change in public opinion in favor of marriage equality, makes reversing such hard-fought gains an extremely difficult task.
Because of these decisions, no president will ever have the executive authority to unilaterally erase immigration benefits to gay couples. To change the law, the Court itself would have to agree to rehear the issue, and then change their prior ruling. It is unlikely the Supreme Court will decide to re-hear the matter head-on, even if a legal avenue permitting the Court to retake up the matter presented itself. It is just as unlikely the Court would change their own precedent, especially as all five justices who voted to acknowledge this constitutional right are still on the bench. Furthermore, Donald Trump even admitted in his recent interview with 60 minutes that marriage equality "was already settled."
President-elect Trump's future immigration actions are particularly difficult to predict, as we have reported previously. However, the binding precedents of the Supreme Court and BIA to acknowledge and uphold the right to marry, and the extension of those benefits to married couples in the LGBTQ community will likely hold, regardless of what else may change.
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