DOMA Unraveling? Same-Sex Binational Families Get Relief
In light of constitutional issues regarding the so-called "Defense of Marriage" Act (DOMA), the U.S. Citizenship and Immigration Services has stopped automatically rejecting green card applications from foreign nationals who are married to same-sex American spouses, the Associated Press reported on March 29.
"Until [U.S. Citizenship and Immigration Services] announced the temporary change, applications for immigration benefits for foreign nationals married to a U.S. citizen of the same gender were automatically denied because the Defense of Marriage Act [DOMA] defines marriage as only between a man and a woman," noted the AP article.
But a federal judge has ruled that part of DOMA is unconstitutional, and the Obama administration has announced that it will no longer uphold the 1996 law because of constitutional questions.
MetroWeekly also covered the story, reporting in a March 28 blog posting that an immigration Services spokesperson, Christopher Bentley, had confirmed that cases involving married same-sex couples have been "put on hold" for the time being.
Equality Matters noted in a March 29 posting that this amounts to a "national shift in deportation policy" for same-sex bi-national couples.
"The move away from immediate rejection of such green card applications for same-sex couples seems likely to affect future deportation proceedings as some judges begin to exhibit a similar reticence in deporting couples while the future of the Defense of Marriage Act (DOMA) is in doubt," text at the Equality Matters website read.
Attorney General Eric H. Holder, Jr. announced on Feb. 23 that the Obama administration's Justice Department would no longer defend the anti-gay federal law, which was signed in 1996 under then-president Bill Clinton. The law explicitly denies gay and lesbian families any legal recognition on the federal level, meaning that even if same-sex couples marry in one of the five states where marriage equality is legal, or in the District of Columbia, or in one of the several other nations where marriage equality is the law of the land, their legal civil marriage will not be recognized by the United States federal government.
That lack of legal status leaves same-sex couples fiscally unequal to their heterosexual peers. Gay and lesbian families are shut out of federal pension benefits and tax breaks that benefit mixed-gender couples.
Same-sex couples in which one family member is not an American citizen have also been faced with heartbreaking dilemmas, because the law prevents the same immigration rights enjoyed by straights from being extended to gays and lesbians. Whereas a straight American could sponsor his or her foreign spouse to live and work in America--and even become a naturalized citizen--same-sex couples are not able to access this option.
Those couples that cannot manage a visa on other grounds are faced with long periods of separation and frequent travel expenses. When the foreign partner comes from a country that recognizes same-sex families, such as Canada, Spain, or South Africa, among other nations, the American spouse may be left with little choice but to emigrate.
Federal judge Joseph Tauro ruled against DOMA last year, pronouncing part of the law as being in violation of the U.S. Constitution. The Obama administration agrees, and says that it is based on this question of constitutionality that it will no longer defend the law in federal court, despite a long tradition in which sitting administrations defend existing law, even when it contradicts the administration's own ideology.
Bentley confirmed to Metro Weekly "that cases of foreign partners who are married to a same-sex partner and would otherwise be eligible for a green card are on hold in light of questions about the continued validity of the Defense of Marriage Act," the blog posting read.
"USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues," Bentley told the publication in a written message.
"USCIS has not implemented any change in policy and intends to follow the President's directive to continue enforcing the law," Bentley added.
"The legal distinction means that although DOMA is still being enforced, the USCIS is using its discretion to hold off on denying green card applications where applicable," explained the blog posting.
Attorney Lavi Soloway, who represents bi-national couples faced with DOMA-related legal obstacles to keeping their families intact, noted that the Obama administration had "put a moratorium on the [deportation of foreign] widows of U.S. citizens in 2009, and, in 2010, the administration announced it would defer action on the deportation of individuals who are likely eligible under the DREAM Act. So, the administration has shown that it does use its executive branch muscle when it comes to discretion about who to deport."
"The news that USCIS will apparently place a temporary hold on the final adjudication of green card cases filed by gay and lesbian couples as it wrestles with an appropriate policy in light of the administration's changed position on DOMA is both cause for celebration and an opportunity for increased advocacy," Soloway told EDGE.
"As we have successfully challenged DOMA in immigration court and won reprieves from deportation, we have revealed the cruelest form of its discriminatory impact. We created a platform for the personal stories of couples impacted by DOMA just as they were about to be torn apart."
Immigration Equality, an organization that works for legal parity for bi-national families, issued a public response to Bentley's confirmation, Metro Weekly reported.
"Today's statement is the first domino to fall for LGBT Americans with foreign national spouses," said the group's leader, Rachel Tiven. "As Immigration Equality noted in our letters to both the Department of Homeland Security and the Department of Justice, we believe that no spousal application should be denied until DOMA's constitutionality is settled."
But a follow-up article at MetroWeekly warned that the breathing room this offered same-sex bi-national couples could be of extremely limited duration.
"Despite statements from leading organizations--most prominently, Immigration Equality--suggesting that the cases would be held in abeyance until DOMA's constitutionality is settled, a DHS official told Metro Weekly on Monday night that the abeyance could last for as little as a week," MetroWeekly reported on March 29.
"Suspending all cases implicating DOMA until there is final judicial resolution on DOMA's constitutionality would run contrary to our obligation and to the AG's letter and therefore DHS cannot and will not do that," the unnamed official added.
However slim the margin of hope, however, equality organizations are making use of it.
Constitutional Muster
Immigration Equality sought a green card for South African citizen Tom Smulian, who is married to American Edwin Blesch. But the marriage--granted in South Africa--is not recognized by the United States government under the terms of DOMA.
"Despite being legally married in South Africa--a marriage recognized in Edwin's home state of New York--the couple has struggled to remain together," said the Immigration Equality release.
"Every day, we live with the very real possibility that, despite following every law and every policy of the United States, Tim will be forced to leave the country, and I will be left without my caretaker and the love of my life," Blesch said in a statement.
"Today's news gives us great relief, and great hope that we may soon be able to put that worry behind us. For the first time, we can begin to plan the rest of our lives together without fear that we will be torn apart."
Section 3 of DOMA defines marriage as the legal union of one man and one woman, as well as granting state governments the right to ignore the contract of civil marriage between same-sex couples when that contract is granted in other jurisdictions--a right that does not apply to any other legal agreement.
In July, 2010, a federal judge in Boston ruled that DOMA interferes with Massachusetts' ability to determine who can get married, infringing upon the state's rights. That suit was filed by Gay & Lesbian Advocates & Defenders (GLAD), which argued that DOMA violates "the U.S. Constitution's guarantee of equal protection of the laws," as a summary of the suit prepared by the HRC puts it. Last November, the ACLU also brought suit in New York.
"In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court," Holder noted in his Feb. 23 announcement. "Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.
"Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated," Holder's statement continued. "In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply."
A Jan. 28 New York Times article took note of exactly this dilemma, predicting that the Obama administration would be required to abandon its carefully cultivated middle of the road approach to GLBT rights in the case of the court challenges to DOMA. The administration was forced to choose which route to take given a deadline for its response in two federal lawsuits.
Because of where they were filed, the appeals court handling the suits has no precedent to rely on in formulating a judgment. That has the potential to place Obama in a politically sticky spot: Strongly indicating a definite stance about how to handle the needs of the GLBT community--and even, in effect, making a statement about who and what gays are--will almost certainly provoke a firestorm of controversy. In the resulting political climate it could be impossible for the president to strike the measured political tone for which he is noted. Taking definite action seen as embracing gay marriage will most likely alienate those who are skeptical about recognition for same-sex families.
As a candidate, Obama said both that he wants to see DOMA abolished, and that he believes marriage should be a special right reserved exclusively for heterosexual couples. More recently, the president told the press that his attitude toward marriage equality has been "evolving," prompting speculation that Obama may be preparing the ground for a major push for gay and lesbian family equality in time for the 2012 elections.
In 2010, Congressional Democrats attempted to gather support for the Uniting American Families Act, which would extend to same-sex families the same immigration rights as those enjoyed by heterosexuals. Opponents decried the bill as an attempt to undermine the traditional family.