Gay couples are still not being recognized as worthy of government recognition. Prior to the President's announcement in March 2011 that the federal government will no longer be recognizing the Defense of Marriage Act as constitutional, same-sex immigrants that applied for a green card were automatically denied immigrant status.
The Defense of Marriage Act
The basis of the denial came from the fact that the Defense of Marriage Act prohibited the recognition of same-sex couples as a 'married' couple. As a result, an immigrant's marriage to a U.S. citizen carried no weight in the determination of an immigrant's status. This makes sense as same-sex couples are not recognized in most states, right? Ironically, while President Obama stated that the federal government would no longer recognize the constitutionality of the Defense of Marriage Act, there was no talk of the executive office making any changes to the Defense of Marriage Act. Go figure.
Immigration Cases Halted
This left the issue of married same-sex immigrants in flux. On Monday, March 28, 2011, immigration officials announced that decisions on married same-sex immigration cases were being halted so that attorneys could make a decision on a narrow legal issue. This statement led to excitement and hope within the gay community.
However, the excitement was short lived as immigration officials later clarified that all same-sex immigration cases were only temporarily halted. According to the New York times, Christopher S. Bentley, the chief spokesperson for the immigration agency, stated that the "USCIS has not implemented any changes in policy and intends to follow the President's directive to continue enforcing the law." So, in short, Bentley feels that the President's view that the Defense of Marriage Act is unconstitutional means absolutely nothing.
Gay Married Immigrants Treated Differently Than Heterosexual Immigrants
This statement leads to yet another door closed for the same-sex community, as there were hopes that married same-sex immigrant couples would be treated the same as married heterosexual immigrant couples. That hope was obviously unfounded. Generally, when an immigrant in a heterosexual marriage applies for green card status, this status is granted. Conversely, if you are a married gay immigrant the result is deportation, whether or not you were legally married under the laws of a particular state. Despite the strides the United States has seen regarding the equality of same-sex couples, this seems to be discrimination at its best.
Although the Defense of Marriage Act is technically seen as unconstitutional, Republicans have vowed to defend the Defense of Marriage Act against legal challenges from same-sex couples. Likewise, President Obama has stated that although the federal government will no longer defend the Defense of Marriage Act as constitutional, the law will continue to be recognized until it is repealed by the courts. This will obviously require a court to hear such a case. As a result of the inaction of the President, this issue will likely be determined by the Supreme Court of the United States, which is not likely to issue a favorable decision in favor of gays.
Despite the statement from Bentley clarifying that the hold was only temporary, most gay rights advocates say the immigration agency's halt was a big step in favor of gay rights. Rachel B. Tiven, executive director of Immigration Equality, stated that the immigration agency's halt was the "first domino" for same-sex Americans with immigrant spouses. We shall see if Tiven feels the same way when the immigrant agency starts denying immigrant status to married same-sex couples next week.
Sources
- February 23, 2011, President Obama Says Discriminatory "Defense of Marriage Act" is Unconstitutional, American Civil Liberties Union.
- Julia Preston, Confusion Over Policy on Married Gay Immigrants, NY Times.
- Susan Donaldson James, Gay Immigrants on Emotional Roller Coaster Over Defense of Marriage Act, ABC News.
- Prerna Lal, U.S. Immigration Plots Separation of Married Same-Sex Couples Again, Change.org.
Melody Sabedra - I am an a young female attorney living in Atlanta. I live in the suburbs, work in the city, have a fiance, and love my 2 dogs. I am ...
