No defense for defense of marriage
The Defense of Marriage Act (DOMA) became law in 1996 with the signature of President Bill Clinton. Today, the executive branch, President Barack Obama and US Attorney General Eric Holder, have reviewed the legislation and determined that it is constitutionally indefensible, but will continue to enforce it. After a brief hiatus to consult with attorneys, the Bureau of Citizenship and Immigration Services (USCIS) has averred that it will continue its policy of denying petitions from gay US citizens for legal status on the behalf of their immigrant, same-sex marriage partners.
What is marriage? Who is a spouse?
The main provisions of DOMA relieve the various states of the obligation to recognize the legality of marriages legally sanctioned by other states or nations. It also defines “marriage” as solely the union of a man and a woman, and “spouses” as married persons of the opposite sex. Appeals are lodged in some courtrooms around the country and a US Supreme Court ruling may be in the offing, even though a lower federal court justice has already declared DOMA unconstitutional. Congress has declared that it will defend DOMA when the executive branch fails to do so.
The squeaky wheels in a constitutional republic
Once again, gay US citizens are the squeaky wheels that remind all of us US citizens that the United States is a constitutional republic, and as such is obligated by its constitution to protect minorities from the tyranny of the majority. This philosophy is behind most civil legislation that brought equal rights to racial minorities during the latter part of the last century. Hopefully, this tenet will influence the federal government’s stand on sexual minorities in this new century.
Legal and cultural earthquake
The General Accounting Office issued a report in 1997 identifying “1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor.” In updating its report in 2004, the GAO found that this number had risen to 1,138. If DOMA is ultimately declared unconstitutional, it will affect each of those statutes and could cause a legal and cultural earthquake, especially for political or social conservatives.
“If you’re gay, you get deported.”
In the case of a bi-national same-sex couple, DOMA has prevented one spouse from sponsoring the other for a Green Card. Following some uncertainty after the Obama Administration determined that DOMA is unconstitutional, USCIS reaffirmed its policy of denying such applications. As Richard Socarides, a lawyer who is president of Equality Matters, a gay rights advocacy group, so succinctly put it in a New York Times interview: “If you are in a bi-national couple that is heterosexual, you get to stay here and work here. If you’re gay, you get deported.”
The great compromiser becomes Mr. Cave-in
If President Obama continues to seem aloof, to be above it all when it comes to partisanship, to the point that his role as a compromiser has become one of a cave-in softy, DOMA could become a bargaining chip to sacrifice for more important issues in the future. His folding on so many conservative, or Republican, or Tea Party national budget issues here lately certainly sets a precedent.
Miscegenation ban vs. same-sex marriage ban
Just as the hateful laws banning miscegenation or interracial marriage were struck down, so should bans on same-sex marriage. The principle is certainly the same. Love should have no racial or sexual limitations, and rights afforded one couple should be no different from those afforded another couple just because of sexual orientation.
Repatriation could result in personal harm
Although USCIS suspended action against same-sex marriage partners while it reviewed its practices, those suspensions have been lifted. Legal advisers, agency officials, and gay rights advocates alike have cautioned petitioners to refrain from seeking status for their foreign marriage partners until the status of DOMA is finalized. Meanwhile, petitioners only draw attention to themselves. Indeed, one gay couple whose Argentine partner faces deportation come May, has said now that their status has been revealed, it would probably be physically, socially, and legally hazardous for them to enter Argentina as same-sex marriage partners.
Why are they here?
Gay people have a long history of provoking new thought and this indeed may be one of the reasons for their very evolutionary existence in a healthy culture that is so diverse in its racial, sexual, social, and moral composition. With the Constitution itself as guidance, let’s hope new thinking influences the practices of USCIS to reflect the reality of same-sex marriage and its position in any new or reformed immigration law.
***
Lazaro Law Group, Professional Corporation represents immigrants all over the United States and US Embassy in Manila. The firm’s offices are located in San Francisco, Makati City (Philippines), and Fremont, Union City California. Attorney Johnson Lazaro can be reached at (415) 278-9577 or toll free at (877) 552-9276. His email is This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
***
This article should not be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. This is not meant to create a lawyer-client relationship.
(Advertising Supplement)
| < Prev | Next > |
|---|
