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Same-Sex Couples Challenge Defense of Marriage Act

Gay rights group brings lawsuit; claims DOMA treats non-citizens unfairly

Common Dreams staff

Gay rights protesters

The Defense of Marriage Act, a 1996 law which defines marriage as between a man and a woman, is being challenged in a lawsuit by five same-sex couples.

The couples, working with Immigration Equality, a gay rights group that focuses on immigration, brought the case before US District Court yesterday. They argued that the Defense of Marriage Act discriminates against non-citizens in same-sex marriages who might wish to gain legal residence in the US.

Salon's Glenn Greenwald, who is forced to live in Brazil with his same-sex partner as a result of the Defense of Marriage Act, said "[t]his is one of those injustices so extreme and indefensible that it’s difficult, at least for me, to avoid high levels of anger when discussing, and it’s even more difficult to understand how any person could favor its continuation." 

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UPI: Immigrants challenge gay marriage ban

Five same-sex couples challenged a U.S. law barring the federal government from recognizing gay marriages, saying its impact is harsh on non-citizens' spouses.

The lawsuit challenging the 1996 Defense of Marriage Act, was filed Monday by Immigration Equality in U.S. District Court for the Eastern District of New York.

"I'm a citizen of this country just like anybody else," Heather Morgan, 36, a plaintiff in the lawsuit with her spouse, Maria del Mar Verdugo Yanez, who is from Spain, told The New York Times. "I'm very proud of this country. I don't want to feel like I have to leave here in order to be with the person I love. I shouldn't have to choose."

Most of the immigrants have been in the United States legally on temporary visas that will expire soon, the Times said.

Under immigration law, a citizen can apply for a foreign spouse to gain legal permanent residency, experts said. However, federal authorities do not recognize same-sex marriages under DOMA, leaving same-sex couples with the choice of deportation for the immigrant or exile for the American.

Immigration Equality Executive Director Rachel Tiven said the organization urged federal officials to suspend deportations of immigrants in same-sex marriages as court challenges to DOMA worked through the legal system, but the authorities declined, prompting the lawsuit, the Times said.

In February 2011, the Obama administration announced that it considered the key provision of the Defense of Marriage Act unconstitutionally discriminatory, and that officials no longer would defend it in the courts.


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New York Times: Noncitizens Sue Over U.S. Gay Marriage Ban

Five legally married same-sex couples filed a lawsuit on Monday to challenge the 1996 law that bars the federal government from recognizing same-sex marriages, arguing that its impact is particularly harsh on couples that include an American citizen and a foreigner.

The lawsuit, filed in United States District Court for the Eastern District of New York, was brought by Immigration Equality, a gay rights legal organization that focuses on immigration issues. Same-sex marriage advocates said it was likely to become the most prominent suit seeking to overturn the law, known as the Defense of Marriage Act, based on its effect on gay or lesbian immigrants who want to gain legal residence through marriage to American citizens.

Under immigration law, a citizen can apply for a foreign spouse to obtain legal permanent residency, with a document known as a green card. Since unlike many other visas, there are no limits on the number of green cards available to spouses of citizens, those applications are among the fastest and most straightforward procedures in the immigration system.

Under the marriage act, which is called DOMA, federal authorities do not recognize same-sex marriages, even from states that allow them. In recent years, as same-sex marriage became legal in several states, gay and lesbian couples have come forward to say they were facing a painful choice: either deportation for the immigrant or exile to life in a foreign country for the American.

“I’m a citizen of this country just like anybody else,” said Heather Morgan, 36, a plaintiff in the lawsuit together with her spouse, María del Mar Verdugo Yañez, 42, who is from Spain. After a 13-year friendship that evolved into a romance, the couple was married in August 2011 in New York City, where they live.

“I’m very proud of this country,” Ms. Morgan said in an interview. “I don’t want to feel like I have to leave here in order to be with the person I love. I shouldn’t have to choose.”

Rachel B. Tiven, the executive director of Immigration Equality, said the group tried during the past year to persuade the federal government to put a hold on consideration of green card applications from same-sex couples, while several challenges to the marriage act made their way through the courts.  But federal authorities did not agree to the hold and had continued to deny the applications, she said, prompting the group to proceed with the lawsuit.

In February 2011, the Obama administration announced that it regarded the central provision of the marriage act as unconstitutionally discriminatory, and said officials would no longer defend it in the courts.

On Wednesday, the United States Court of Appeals for the First Circuit in Boston will hear arguments in the first marriage act case to advance to the appeals level. That case contends that the act is unconstitutional because it denies federal benefits to same-sex couples married in Massachusetts, the first state to make same-sex marriage legal.

Justice Department officials have said that they will not defend the core provision of the marriage act in that hearing, but will dispute other claims in the case. A conservative legal group appointed by the House of Representatives will argue in favor of the act.

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Glenn Greenwald, Salon: Lawsuit filed over discriminatory immigration law

Five legally married, “bi-national” same-sex couples — one spouse is a U.S. citizen and the other a foreign national — filed a lawsuit yesterday in federal court seeking the right to live together in the United States. The right of American citizens to have their chosen spouse live with them in the U.S.  is more or less automatically granted when the spouse is of the opposite sex: once evidence is submitted attesting to the authenticity of the marriage, the Immigration and Naturalization Service issues a visa and then a Green Card to the foreign national spouse. But the Defense of Marriage Act, the 1996 statute enacted by a huge Congressional majority in both parties and signed into law by President Clinton, expressly bars the granting by the Federal government of any spousal benefits, including immigration rights, to same-sex couples.

That blatantly discriminatory law has produced a serious injustice and substantial hardship: thousands of U.S. citizens are barred from living in their own country with their same-sex spouse. The “luckiest” among them are able to move to their spouse’s country, but that’s a choice available to only a small percentage: for that to work, the foreign spouse’s nation must grant immigration rights to same-sex couples (only a minority of countries do) and the American partner must be able to find work while living outside the U.S. (I’ve written and spoken previously about how this discriminatory framework forces me to live in Brazil with my Brazilian partner, who cannot obtain immigration rights to live, work and/or study in the U.S.). But the vast majority of same-sex couples in this situation do not have even that limited option: instead, they are faced with the horrifying choice of (a) having the foreign partner live illegally in the U.S. (which means they face the constant threat of deportation, cannot legally work or study, and cannot ever leave the country to visit their family back home), or, worse, (b) living thousands of miles apart — continents away — from the person with whom they want to share their life.

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Immigration Equality: Lesbian & Gay Immigrant Families File Suit Challenging Federal Defense of Marriage Act

Five lesbian and gay couples filed suit today in the Eastern District of New York, challenging Section 3 of the federal Defense of Marriage Act (DOMA), which prevents lesbian and gay American citizens from sponsoring their spouses for green cards. The lawsuit, filed on the couples' behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples' constitutional right to equal protection.

"Solely because of DOMA and its unconstitutional discrimination against same-sex couples," the lawsuit states, "these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples." Were the Plaintiffs opposite-sex couples, the suit says, "the federal government would recognize the foreign spouse as an 'immediate relative' of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship."

The five couples named in today's suit are:

  • Edwin Blesch and his South African spouse, Tim Smulian. Edwin and Tim, who have been together for more than 13 years, were married in South Africa in August 2007.  While their marriage is honored by Edwin's home state of New York, their green card petition was denied on March 14, 2012. They reside in Orient, New York.
  • Frances Herbert and her spouse, Takako Ueda, who is originally from Japan.  Frances and Takako, who have known each other for 22 years, were married in April 2011. Their petition for a green card was denied on December 1, 2011.  They reside in Dummerston, Vermont.
  • Heather Morgan and her spouse, Maria del Mar Verdugo, a native of Spain.  Heather and Mar have known each other for 14 years.  They were married, in New York, in August 2011 and have a pending green card petition, which is expected to be denied. They reside in New York City.
  • Santiago Ortiz and his spouse, Pablo Garcia, a native of Venezuela. Santiago, a Puerto Rican American, met Pablo in 1991 and registered as domestic partners in 1993. In May 2011, they were married in Connecticut. The couple have filed a green card petition, which is expected to be denied.  They reside in Elmhurst, New York
  • Kelli Ryan and her spouse, Lucy Truman, a native of the United Kingdom.  Kelli and Lucy have been a couple for more than 11 years and entered into a civil union in July 2006.  They were married in March 2010 in Connecticut. Their petition for a green card was denied on March 27, 2012. They reside in Sandy Hook, Connecticut.


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