Love Is The Law: The DOMA Decision and Binational Same-Sex Marriage

20130626-152500.jpgLike so many, I was excited to hear of the decision by the United States Supreme Court to strike down the Defense of Marriage Act this morning. This decision in United States v. Windsor, along with the end result of the Prop 8 decision, was what I had definitely hoped for, mostly expected but slightly feared would not happen. Historical and far-reaching as these decisions are, however, the first thing I thought of was the tremendous impact it will have on the lives of tens of thousands of LGBT Americans who are married to non-US citizens. Today’s ruling that Section 3 of DOMA, which prohibited the federal government from conferring benefits to married same-sex couples, is unconstitutional sets the stage for a major change in family-based immigration – the cornerstone of US immigration policy. Today, the Supreme Court opened the door for US citizens to be able for the first time to apply for permanent resident visas for their same-sex spouses.

When I heard the decision this morning, what flashed through my head were the faces of all of the LGBT persons in binational same-sex relationships who have consulted with me over the years about their legal options – for staying together and avoiding separation by deportation. When I first started practicing back in 1996, I had to tell them that their options were limited. I remember helping “George” seek and obtain asylum based on his LGBT status. “George” had fled his country in Central Africa. He met blond-haired, blue-eyed “Larry” when they were both doing volunteer work at a community center. Larry encouraged George to seek legal assistance. Asylum was the only  option, but I knew they deserved more.  Larry came to every interview with George, holding his hand as George talked about the persecution that he had experienced in his home country due to his refusal to hide his sexuality. Tears in his own eyes as he listened silently to George’s account of violence and stigmatization, Larry would hand George tissues, make him take calming deep breaths or take a drink of water. Help him go on with saying what had to be told. George was granted asylum, allowing him to stay permanently in the US. By that time, he had a job and he and Larry had moved in together. It has been more than 10 years since I last saw George and Larry, but I wouldn’t be surprised to hear that they had tied the knot.

But same-sex marriage wasn’t an option in the US back in 1996. Or 2001, for that matter, when “Hans” and his husband “Rick” asked for advice. Hans was Dutch and Rick was from the Caribbean (Jamaica, I think). They met while working in the US and married in Amsterdam after the Dutch government legalized same-sex marriage. But Rick’s US work authorization ended and he could no longer stay legally with Hans in the US, even though they were legally married and Hans still had authorization to be here . In the end, Hans chose to transfer to a job back to The Netherlands so that Rick could legally immigrate and they could be together.

When Massachusetts and other US states started legalizing same-sex marriage, I heard from others frustrated by the lack of equality between the way same-sex and traditional marriages are treated in US immigration policy. “Dan” told me that he and his partner “Ernesto”, a professor and a Mexican national, had been commuting between Mexico City and Minneapolis for years but now hoped that they could marry and live together permanently. Unfortunately, I had to tell them that the federal government would not recognize their marriage for immigration purposes.”We love each other, we are committed to each other, we want to get married. Why won’t my country allow us to be together?” Dan fumed.

In practice, the Obama administration has for the past two years refrained from carrying out deportations of immigrants in same-sex marriages, but without providing a legal status that is comparable to the permanent resident (“green card”) status that US citizens in traditional marriages are eligible to apply for for their spouses.

The Supreme Court’s decision today changes everything for people like Dan and Ernesto, Hans and Rick, George and Larry, and all of the other LGBTQ Americans who love nationals of other countries.  I truly, truly rejoice for them and for our country. While some procedural changes will have to take place before the implementation in practice of today’s decision, June 26 should be a day remembered and celebrated by all of us who believes in the right of EVERY family to be together.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” ~ Justice Anthony M. Kennedy

For more information about the process for applying for permanent resident status for same-sex spouses, see Immigration Equality’s FAQ and The Doma Project’s FAQ.

UPDATED:  On July 29, 2013 – just two days after the US Supreme Court struck down Section 3 of DOMA –  gay couple in Florida received the first approval of a same-sex marriage-based permanent resident petition.  Wow, that was fast!  Congratulations to Julian Marsh and Traian Popov! And kudos to the US Immigration & Customs Enforcement Service for implementing the  decision so quickly.

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4 thoughts on “Love Is The Law: The DOMA Decision and Binational Same-Sex Marriage

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