DOMA faces new challenge from binational couples

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The complaint reads like a love story,” Immigration Equality lawyer Tom Plummer told 2Bmag today from his New York office. “They have persevered under difficult circumstances. I think they’re incredibly compelling plaintiffs and brave to go out and share their story with the world. They realize that they’re speaking on behalf of the thousands of binational families,” he added, explaining that there is strength in the diversity of the five couples who have filed the DOMA challenge with his firm. Amongst the five are couples in their 50s who have been together for decades, as well as couples in their 40s and 30s, making the suit stronger by showing the different kind of hardships the couples face.

One of the other couples named in the suit, Kelli Ryan and Lucy Truman, was denied a green card on March 27, despite a push by Democrat Sen. Richard Blumenthal and Immigration Equality. Truman, who was born in the United Kingdom, is in the country on a visa but could be forced to leave if she lost her job, the Huffington Post reported yesterday.

According to the last census, there are about 36,000 binational same-sex couples living in the US. Immigration Equality has fielded over 1,000 calls from those couples this past year, many of whom have gone into exile over the strain that DOMA places on the non-US half of the couple being able to obtain the same green card that they would get if the couple was heterosexual. “One of the things that’s compelling about a DOMA challenge in the immigration context, is just how serious the consequences are when their relationships aren’t recognized by the US Government,” Plummer says. Many such couples decide to emigrate to friendlier home countries (if they can) because the visa rejections and lack of legal recognition place one of the parties in too precarious a situation. Not to mention the ongoing grey-zone of child custody, and the legal limbo of living in a state (like NY, CT amd VT) where same-sex marriages are legal, but where federal immigration still calls the shots.

Since its passage into law in 1996, the Defense of Marriage Act (DOMA) has been a gigantic stumbling block against same-sex marriage recognition in the US. While the law has not prevented states like New York, Connecticut and Vermont (amongst others) from legalizing same-sex marriage, DOMA has meant a legal ban on recognition of same-sex relationships at the federal level, which includes immigration. “DOMA was passed with the sole purpose of singling out a group for discrimination,” Tom Plummer summarizes with his characteristic poignancy. 

The plaintiff group of five binational couples face a sympathetic Attorney General (Eric Holder) and Secretary for Homeland Security (Janet Napolitano): the US Justice Department announced in February of 2011 that they would refuse to defend DOMA if it is challenged in court, since they believe the law to be unconstitutional in its denial of rights to a particular group, which is the core of Immigration Equality’s argument. But the case won’t be settled so easily, since Republicans in the so-called “bipartisan” legal advocacy group will no doubt intervene to defend DOMA when the court challenge begins later this spring.

I should say that I don’t believe that it’s truly the House of Representatives that is defending the law,” the Immigration Equality lawyer told 2Bmag today. “I think that many in the House of Representatives agree with the President that the law is unconstitutional,” Plummer iterated, adding that nonetheless, the Congress members who will be intervening in the case to support DOMA are all Republicans. But Immigration Equality is confident that their constitutional arguments will hold sway, particularly since the Justice Department is on their side.

To a certain extent, DOMA’s a house of cards,” Tom Plummer says metaphorically. If the judge finds that DOMA violates the constitution or immigration laws, then this case could strike a death-blow to the much-maligned law. “I’m hopeful that the Government will stop enforcing DOMA in all of the 1,000 instances to which it applies. There’s no question as to whether they have the right to marry, it is a question as to whether or not the Federal Goverment is allowed to not recognize them,” he clarifies. While the case could involve a pre-trial discovery period of several months once Congress gets involved, it is possible that the plaintiff group could get their day in court against DOMA later this year. 

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