Five Americans all with same-sex foreign-born spouses filed a legal suit Monday challenging the Defense of Marriage Act.
The suit, filed in the Eastern District of New York, challenges the embattled Section 3 of the federal Defense of Marriage Act (DOMA). This aspect of the law, among other restrictions, prevents lesbian and gay Americans from sponsoring their spouses for marriage-based green cards even when they fulfill all other necessary criteria.
The five couples named in the suit are Edwin Blesch and his South African spouse Tim Smulian, Frances Herbert and her spouse Takako Ueda, who is originally from Japan, Heather Morgan and her spouse Maria del Mar Verdugo, a native of Spain, Santiago Ortiz and his spouse Pablo Garcia, a native of Venezuela, and Kelli Ryan and her spouse Lucy Truman, born in the UK. All five have already been rejected or are set to have their residency applications denied.
The lawsuit challenges that “solely because of DOMA and its unconstitutional discrimination against same-sex couples, these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples.”
The suit contends that if Plaintiffs were opposite-sex couples they would not be denied an application because “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen” and therein allow a path to legal residency. The suit explains that because of DOMA this avenue is not open to same-sex couples.
“Whether the federal government recognizes a couple’s marriage can determine whether a family may remain in the United States and live together, or may be torn apart,” the suit states, adding that, “… the federal government also has set the preservation of families as national priority.”
Indeed it has, and it has recently moved to include LGBT families in that national priority.
In 2011 the Obama administration released explicit clarification of earlier guidelines that made it clear that binational same-sex couples who fulfill all other immigration requirements should be considered a low priority and that immigration officials have the discretionary power to hold off on proceedings against such couples.
Unfortunately, what this did not do was prevent same-sex couples from having to go through the emotionally and financially costly process of the deportation hearing process. The harm this causes, with no actual guarantee of remedy at the end of proceedings, is why DOMA must be struck down.
“[DOMA] threatens . . . marriages while purporting to ‘defend’ marriage. It does violence not only to these five couples, not only to the institution of marriage, but to the Constitution of the United States.”
“The families in today’s lawsuit meet every qualification for immigration benefits, with the sole exception that they happen to be lesbian or gay,” said Rachel B. Tiven, Esq., executive director of Immigration Equality, an action group that is behind the DOMA challenge. ”Solely because of their sexual orientation, they have been singled out, under federal law, for discrimination and separation. That’s not only unconscionable; it is unconstitutional. We know DOMA cannot withstand careful review, and we know we will prevail on their behalf.”
“These families represent the tens of thousands of others like them who are threatened with, or have already been forced into, separation or exile,” Tiven went on to say. “Their victory in court will end the threat that has hung over their families, their homes and their marriages for far too long.”
In 2011, Immigration Equality dealt with 1,431 legal inquiries from binational couples like those in this suit. According to the immigration group this was a 141% increase over the previous year. A Williams Institute analysis estimates 36,000 couples – and the nearly 25,000 children being raised by them – are impacted by the United States’ refusal to recognize lesbian and gay relationships for immigration purposes.
The Obama administration in February 2011 determined that it could not defend the constitutionality of DOMA Section 3 because, the administration said, it discriminates against gay and lesbian couples for no reason other than because they are same-sex couples. The attorney general has since intervened to halt select deportation cases per the administrations disquiet over DOMA Section 3.
Defense of the law has been taken up by the House GOP leadership, but Speaker Boehner has come under fierce criticism for the $1.5 million he has negotiated to spend on defending a law that has now been found unconstitutional by a number of federal courts.
While multiple suits have challenged Section 3, there has never before been a focus on the particular harms DOMA inflicts on gay Americans with foreign born spouses.
Learn more about the suit and read the court filing in full here.
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