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.

Marriage Equality, Through the Eyes of a 10-Year-Old


With the Supreme Court hearing arguments in two cases related to same-sex marriage, much has been written – and said and thought – this week about marriage equality in the United States. No matter how these particular nine justices rule (and there is speculation that, unlike the Warren Court which in 1967 issued a sweeping ruling on the unconstitutionality of state bans on interracial marriage, this court might actually punt), I am convinced that it is only a matter of time before same-sex marriage is a recognized as a right in this country.

This week, I re-read Hockey Moms, a post I wrote last summer about my 10-year-old son and his discussions with his hockey team about marriage equality. It was a lesson to me at the time about the importance of engaging people in the conversation about same-sex marriage. In re-reading it, however, I am struck by how much forward movement there has been in just the past six months. Not only was the proposed amendment (which would have defined marriage as between one man and one woman in the Minnesota state constitution) that Simon was lobbying against defeated last November, but it was defeated handily. In fact, it went down in flames. Even my 98 year-old grandmother voted NO! In a huge reversal, this year there is a real chance that our Minnesota state legislature will pass legislation legalizing same-sex marriage. The number of states with same-sex marriage jumped on election day in November when three states – Maryland, Maine and Washington – legalized same-sex marriage through popular vote. Recently, it seems like politicians have been “coming out” in favor of marriage equality on a daily basis.

The momentum in favor of same-sex marriage appears to be increasingly rapidly and there are signs that the trend will not be reversed. I asked my 13-year-old what he thought about the recent ABC/Washington Post poll that found that 81% of Americans aged 18-29 supported legal same-sex marriage, he said, “Well ,that makes sense. Although I am disappointed in the 20%. At my school, there are only two kids who oppose same-sex marriage.” They didn’t poll Americans under the age of 18, but anecdotally at least, support for marriage equality may be even higher among his peer group.

My kids are part of a generation which, although it doesn’t have an official name yet, is already saying, “Of course same-sex marriage should be legal. Why was this even an issue?” They have grown up with favorite teachers, beloved camp counselors, trusted neighbors, friends and classmates who are openly LGBT. They go to school and church with kids from families with parents who are in same-sex relationships, some but not all legally sanctioned by state law. Men kissing men, men kissing women, women kissing women – my kids don’t care. Frankly, it is disgusting to them when ANY adults kiss!

I’m sharing an excerpt from Hockey Moms to illustrate my kids’ perspective on marriage equality, a peek into the future.


My 10-year-old son comes out of the ice arena, swaggering despite the heavy hockey bag that he carries like a giant backpack. His hockey stick and water bottle he wields before him like a rod and staff. I’m sitting on a picnic table in the sun and, yes, I am facebooking on my iPhone. His cheeks are flushed, his bright ginger hair is damp-dark with sweat. He has an announcement to make.

“I’ve got everyone but one kid on my team to be in favor of same-sex marriage.

AND two of the coaches.”

He beams at me. I can feel my jaw as it drops.

I’ll be the first to admit that I’m a terrible hockey mom. I hate almost everything about the sport. I’ve got two sons who play, so I did put a decent amount of effort into learning the basic rules and terminology. My biggest problem is that I grew up in the Deep South, so my natural impulse when winter strikes is to hibernate. The whole concept of driving (in the cold) to sit (in the cold) to watch a sport played (on ice, in the cold) boggles my mind.

Going inside to watch hockey on a cold winter day is one thing. Going inside to watch hockey on a beautiful summer day is completely inconceivable to me. But here in Minnesota, hockey is a year round sport. Serious players play AAA from March to September and, unlike the regular season, players are not required to play where they live. There are kids on my 10-year-old’s team from throughout the Twin Cities Metro and even some kids who travel here for the weekend practices and tournaments from as far away as Florida and Texas.

But my two sons are way, way into hockey. They LOVE this sport! I respect that, so I suck it up and wash their stinky gear and drive them to the rink.

Until last winter, I went into the locker room when I took my boys to hockey – even though I have been banned from years from tying their skates because I (quote, unquote) “don’t do it right.” When my oldest son moved up to PeeWees, however, there was an unfortunate incident. I burst into the locker room, my 6-year-old daughter (wearing a pink jacket and sparkle ballet flats) in tow, only to find a gaggle of 12 year-olds in their underwear listening to loud music and talking trash. “Mom!” my son hissed. “I’m good.”

Given my locker room banishment, I was completely floored to hear that the hockey team was having a discussion about same-sex marriage while putting on their pads and breezers. Here is the story, from the perspective of my 10 year old: “One kid brought it up. He said it was gross, a man with a man or a woman with a woman.” So I said,

“ARE YOU CRAZY? That’s their choice who they love. It doesn’t affect you. Why does it matter to you? No one can tell you who to love.”

That launched the discussion which later led to the purported locker room conversions. It is a timely discussion in Minnesota, where there is a proposed constitutional amendment on the November ballot: “Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as marriage in Minnesota?” VOTE NO signs have sprouted throughout our neighborhood; they line the roads on the way to the hockey rink.

Simon had been late getting to practice (my fault – more evidence for the Worst Hockey Mom title). A coach came in to hurry along the stragglers and Simon asked, “You’re voting NO on the marriage amendment, right?” “I don’t know yet,” he admitted. Simon laid out his arguments again, to which the coach responded, “You make a good point. I think I probably will vote No. Now get out on the ice.”

My son can be like a dog with a bone, so he brought it up again at the next practice. This time he was on time, so when he brought it up in the locker room, everyone on the team was there. One kid, a player who Simon describes as a “tough guy” got really upset when the other kid described same-sex marriage as “gross”. He stood up, half his gear on, and said,

“That’s my family you are talking about! I have two moms and they are married. It hurts my feelings when you say that my family is gross!”

Well, that sure got the team’s attention. According to Simon, he was too emotional to say much more but Simon was able to pick up where he left off.

See? He’s got two moms. So what? Why should his family be treated any differently than yours?


The US Supreme Court justices, who appear to be gnashing their teeth about the appropriate timing of a ruling on marriage equality, could benefit from the point of view of my 10 year-old.

People are just people; we are all equal. People love each other and benefit from loving, committed relationships.

We should all be able to marry who we love. Families should all be treated the same.

Marriage equality, through the eyes of a 10-year-old, is just not complicated.


As the United States Supreme Court considers cases related marriage equality, you can read more – including the Top 100 Marriage Equality Blogs – here.