Immigration Equality Files Federal DOMA Lawsuit

The national LGBT advocacy organization Immigration Equality filed suit in federal court on Monday on behalf of five same-sex binational couples to have the so-called Defense of Marriage Act struck down. (Disclosure: I have served on the board of directors of Immigration Equality since 2008.)

The lawsuit, called Blesch v. Holder, argues that the denial of permanent resident status (commonly known as "green cards") to five same-sex binational couples due to Section 3 of DOMA violates the constitutional rights of the U.S. citizens and the non-citizens of the named plaintiff couples. The suit was filed in the Eastern District of New York on behalf of Immigration Equality and the couples by the high-powered law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

According to the press release:

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples,” the lawsuit states, “these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples.” Were the Plaintiffs opposite-sex couples, the suit says, “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship.”
The five couples named in today’s suit are:

• Edwin Blesch and his South African spouse, Tim Smulian
. Edwin and Tim, who have been together for more than 13 years, were married in South Africa in August 2007.  While their marriage is honored by Edwin’s home state of New York, their green card petition was denied on March 14, 2012. They reside in Orient, New York.

• Frances Herbert and her spouse, Takako Ueda, who is originally from Japan
.  Frances and Takako, who have known each other for 22 years, were married in April 2011. Their petition for a green card was denied on December 1, 2011.  They reside in Dummerston, Vermont.

• Heather Morgan and her spouse, Maria del Mar Verdugo, a native of Spain
.  Heather and Mar have known each other for 14 years.  They were married, in New York, in August 2011 and have a pending green card petition, which is expected to be denied. They reside in New York City.

• Santiago Ortiz and his spouse, Pablo Garcia, a native of Venezuela
. Santiago, a Puerto Rican American, met Pablo in 1991 and registered as domestic partners in 1993. In May 2011, they were married in Connecticut. The couple have filed a green card petition, which is expected to be denied.  They reside in Elmhurst, New York

• Kelli Ryan and her spouse, Lucy Truman, a native of the United Kingdom
.  Kelli and Lucy have been a couple for more than 11 years and entered into a civil union in July 2006.  They were married in March 2010 in Connecticut. Their petition for a green card was denied on March 27, 2012. They reside in Sandy Hook, Connecticut.

The plaintiffs in the suit include a retired professor of English at a New York college (Blesch); a home elder-care provider (Herbert); a marketing director for a global non-profit organization (Morgan); a retired school psychologist (Ortiz); and two doctors of immunology (Ryan and Truman).
“The families in today’s lawsuit meet every qualification for immigration benefits, with the sole exception that they happen to be lesbian or gay,” said Rachel B. Tiven, Esq., executive director of Immigration Equality.  “Solely because of their sexual orientation, they have been singled out, under federal law, for discrimination and separation. That’s not only unconscionable; it is unconstitutional. We know DOMA cannot withstand careful review, and we know we will prevail on their behalf.”
Immigration Equality is widely recognized as the country’s premiere national organization providing legal counsel to LGBT immigrant families.  In 2011, the organization fielded 1,431 legal inquiries from binational couples like those in the suit filed today, a 141% increase over the previous year.  A recent analysis from the Williams Institute at the University of California-Los Angeles estimated 36,000 couples - and the nearly 25,000 children being raised by them - are impacted by the United States’ refusal to recognize lesbian and gay relationships for immigration purposes.

This is very exciting news! And quite timely, as it turns out. Tomorrow there will be oral arguments in the 1st Circuit Court of Appeals in Gill v. Office of Personnel Managment, the appeal of a motion for summary judgment in the plaintiff's favor due to their July 2010 win at the District Court level which ruled that Section 3 of DOMA was unconstitutional.

There are now active lawsuits in the 1st, 2nd and 9th federal circuits, challenging the constitutionality of DOMA. The only case which has reached the appellate court level is GLAD's Gill v OPM case (which is paired with Massachusetts's case). Only one federal judge has ruled that it is constitutional, while a handful of ruled it is not. The House Republican majority has hired super-lawyer Paul Clement (fresh off his Supreme Court appearance arguing that Obamacase is unconstitutional last week) to defend DOMA in all these jurisdictions. Our side has the indomitable Mary Bonauto of Gay and Lesbian dvicates and Defenders who won the Massachusetts and Connecticut marriage cases at the state level and the win in Gill at the federal level.