It has been more than a year since the Obama administration declared that it could no longer defend the Defense of Marriage Act, which prohibits any federal recognition of marriages between same-sex partners.
So what did the administration do when five foreign nationals who are legally married to U.S. citizens applied for permanent resident status, which would allow them to remain in their American homes and, eventually, become naturalized citizens themselves?
Ignoring DOMA was not an option. The administration is, after all, obliged to respect the law and the legal process, and the cases challenging DOMA are still slowly making their way through the courts. But since it already believes DOMA is invalid, the administration might have sought to accommodate the five couples - and the many others like them - by offering some sort of temporary resident status while the law is being challenged. This would avoid splitting an American household or forcing a U.S. citizen into exile in order to remain with a spouse whose visa had expired.
That is not what the administration did.
The administration might have gone to court itself to challenge the discrimination DOMA causes, asking a judge to override the statute on behalf of people who, but for their gender and the gender of their partners, would be legally entitled to live and work here.
The administration did not do that, either.
Instead, it chose to enforce the law it says it can no longer defend, just as it did before the executive branch’s epiphany (which came after the law suffered multiple defeats in lower courts) that arbitrary discrimination against gays, or any other political target group, is illegal.
So these five couples, backed by a group that calls itself Immigration Equality, had to go to court themselves. The lawsuit they recently filed in a New York federal court tells the story of each couple, striving to put a human face on the dry technical question of how to deal with a legally suspect piece of legislation.
The couples’ lawsuit tells their stories in unusually intimate detail. We are introduced to Edwin Blesch and Timothy Smulian, who met 12 years ago, when both were in their fifties and convinced that they would never find love. We meet Heather Morgan and Maria del Mar Verdugo, who spent 10 years as friends before finally realizing they were in love; when friends and family saw them together, the lawsuit says, “everyone immediately knew what had taken Heather and Mar ten years to discover - that they are soul-mates.”
Immigration law ordinarily makes it relatively easy for the foreign spouse of an American citizen to obtain permanent resident status. In this case, four of the couples were married in U.S. states that have passed marriage equality laws, and the fifth was married in South Africa. They should, therefore, have had little difficulty securing legal residency status. But the Defense of Marriage Act prohibits the federal government from recognizing a marriage between people of the same sex for any official purpose.
Three couples whose petitions have already been denied each received a notice from immigration authorities stating, “DOMA applies as a matter of federal law whether or not your marriage is recognized under state law. Your spouse is not a person of the opposite sex. Therefore, under the DOMA, your petition must be denied.”
Attorney General Eric Holder is one of the defendants in the case. It was Holder who determined that the law preventing these couples from living together is indefensible and made the resulting decision to stop defending it in court challenges. Multiple federal judges have also already ruled the law unconstitutional. In 2010, U.S. District Judge Joseph L. Tauro of Boston struck the law down under the Fifth and Tenth Amendments. Then, this February, Judge Jeffrey White of the Northern District of California, a Bush appointee, wrote that “neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered” by the law’s advocates “rationally related to any of the alleged governmental interests” and that “the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.”
But the First Circuit Court of Appeals is only now considering Tauro’s ruling, and the ruling will almost certainly proceed on to the Supreme Court, no matter what the appeals court decides. White’s ruling, similarly, is bound for the Ninth Circuit Court of Appeals. Meanwhile, a conservative legal group appointed by the House of Representatives has taken on the job of defending the law in the immigration suit. The Justice Department has also said that it will dispute some claims in the case that are not directly related to the constitutionality of DOMA.
As I have written before, as same-sex marriage becomes a reality in more states, the federal government’s failure to recognize those marriages is producing a growing logistical mess. The problems range far beyond immigration, extending to estate planning, to federal financial aid, to calculating mortgage interest deductions for income tax purposes, and to many other issues as well.
Although it has been just eight years since the first same-sex marriages were performed in this country, these couples have already come to form an important part of our society. As of the 2010 census, there were 131,729 same-sex married couple households and 514,735 same-sex unmarried partner households. The politics and bureaucracy of same-sex marriage is lagging far behind real life as well as the law.
One way or another, DOMA’s days are numbered. It may not survive its first trip to the Supreme Court. Even if it does, sooner or later we will have no choice but to bring our laws surrounding marriage into line with reality. The prejudice against same-sex marriage is steadily falling away, and it will eventually be replaced by compassion for the families whose lives are burdened by pointless discrimination.
The latest lawsuit reminds us that, in the end, the battle for marriage equality is a love story. With or without the help of politicians and bureaucrats, we will eventually get to the part where they live happily ever after.