Noncitizens Sue Over U.S. Gay Marriage Ban
Apr 2, 2012
Five legally married same-sex couples filed a lawsuit on Monday to challenge the 1996 law that bars the federal government from recognizing same-sex marriages, arguing that its impact is particularly harsh on couples that include an American citizen and a foreigner.
The lawsuit, filed in United States District Court for the Eastern District of New York, was brought by Immigration Equality, a gay rights legal organization that focuses on immigration issues. Same-sex marriage advocates said it was likely to become the most prominent suit seeking to overturn the law, known as the Defense of Marriage Act, based on its effect on gay or lesbian immigrants who want to gain legal residence through marriage to American citizens.
Under immigration law, a citizen can apply for a foreign spouse to obtain legal permanent residency, with a document known as a green card. Since unlike many other visas, there are no limits on the number of green cards available to spouses of citizens, those applications are among the fastest and most straightforward procedures in the immigration system.
Under the marriage act, which is called DOMA, federal authorities do not recognize same-sex marriages, even from states that allow them. In recent years, as same-sex marriage became legal in several states, gay and lesbian couples have come forward to say they were facing a painful choice: either deportation for the immigrant or exile to life in a foreign country for the American.
“I’m a citizen of this country just like anybody else,” said Heather Morgan, 36, a plaintiff in the lawsuit together with her spouse, María del Mar Verdugo Yañez, 42, who is from Spain. After a 13-year friendship that evolved into a romance, the couple was married in August 2011 in New York City, where they live.
“I’m very proud of this country,” Ms. Morgan said in an interview. “I don’t want to feel like I have to leave here in order to be with the person I love. I shouldn’t have to choose.”
Rachel B. Tiven, the executive director of Immigration Equality, said the group tried during the past year to persuade the federal government to put a hold on consideration of green card applications from same-sex couples, while several challenges to the marriage act made their way through the courts. But federal authorities did not agree to the hold and had continued to deny the applications, she said, prompting the group to proceed with the lawsuit.
In February 2011, the Obama administration announced that it regarded the central provision of the marriage act as unconstitutionally discriminatory, and said officials would no longer defend it in the courts.
On Wednesday, the United States Court of Appeals for the First Circuit in Boston will hear arguments in the first marriage act case to advance to the appeals level. That case contends that the act is unconstitutional because it denies federal benefits to same-sex couples married in Massachusetts, the first state to make same-sex marriage legal.
Justice Department officials have said that they will not defend the core provision of the marriage act in that hearing, but will dispute other claims in the case. A conservative legal group appointed by the House of Representatives will argue in favor of the act.
Amid legal jargon, the unusual complaint filed Monday recounts five love stories, describing people who married after years of courtship. Most of the immigrants have been here legally on temporary visas that will soon expire.
Ms. Morgan said she and Ms. Verdugo would like to raise children. “But we live every day with the uncertainty that we will be separated because the government didn’t recognize that we are a family,” she said.