Equality On Trial

In new lawsuit, DOMA is challenged as it applies to immigration rights

April 2, 2012

DOMA trials

By Scottie Thomaston

Immigration Equality has filed a new lawsuit challenging the Defense of Marriage Act as it applies to the immigration rights of gay and lesbian bi-national couples. The complaint, which can be found here, notes the reasons that the Defense of Marriage Act treats same sex couples dealing with immigration issues particularly harshly:

The discriminatory impact of DOMA is particularly acute in the immigration context. For immigration purposes, 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 group’s press release says:

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 complaint asserts that keeping families together is not only the highest priority for the plaintiffs who are in long term same sex relationships, but it’s also considered the highest government priority and commitment to family values is repeatedly affirmed in our laws. Because of DOMA, these and other families could be ripped apart:

Each of the Plaintiff couples were legally married, and there is no question that each couple’s marriage is recognized in the jurisdiction in which the American spouse resides. For example, Frances Herbert and Takako Ueda were lawfully married in 2011 in Vermont. Thus, if Takako were a man instead of a woman, she would have already been recognized as an “immediate relative,” allowing her to attain lawful permanent residence and to remain in the United States.

Immigration Equality notes on their website the administration’s rather arbitrary enforcement of DOMA as it pertains to immigration – they’ve stopped some deportations but allowed others – and explains their case:

Over the course of the past year, the Obama Administration has refused to approve – or even hold — green card applications filed by our families. As a result, couples are facing separation and exile … and we will not sit idly by as the federal government keeps tearing families apart.

There is no question that DOMA is unconstitutional. We know it; the Obama Administration knows it; and the families who feel its impact know it most of all. It is time to end this law, and Immigration Equality and our families will do just that.

On April 2nd, we filed suit on behalf of five lesbian and gay couples, challenging Section 3 of 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.

This is not the first lawsuit that has alleged DOMA is unconstitutional as applied to immigration rights. In California, Lui v. Holder was thrown out because the judge said Adams v. Howerton is controlling precedent. In Illinois, Revelis v. Napolitano is awaiting further action.

The lawsuit is called Blesch v. Holder.

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