Lawsuit filed over discriminatory immigration law

Bi-national couples continue to face horrible choices by virtue of DOMA; a new effort is launched to end that

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Lawsuit filed over discriminatory immigration law (Credit: AP)

Five legally married, “bi-national” same-sex couples — one spouse is a U.S. citizen and the other a foreign national — filed a lawsuit yesterday in federal court seeking the right to live together in the United States. The right of American citizens to have their chosen spouse live with them in the U.S.  is more or less automatically granted when the spouse is of the opposite sex: once evidence is submitted attesting to the authenticity of the marriage, the Immigration and Naturalization Service issues a visa and then a Green Card to the foreign national spouse. But the Defense of Marriage Act, the 1996 statute enacted by a huge Congressional majority in both parties and signed into law by President Clinton, expressly bars the granting by the Federal government of any spousal benefits, including immigration rights, to same-sex couples.

That blatantly discriminatory law has produced a serious injustice and substantial hardship: thousands of U.S. citizens are barred from living in their own country with their same-sex spouse. The “luckiest” among them are able to move to their spouse’s country, but that’s a choice available to only a small percentage: for that to work, the foreign spouse’s nation must grant immigration rights to same-sex couples (only a minority of countries do) and the American partner must be able to find work while living outside the U.S. (I’ve written and spoken previously about how this discriminatory framework forces me to live in Brazil with my Brazilian partner, who cannot obtain immigration rights to live, work and/or study in the U.S.). But the vast majority of same-sex couples in this situation do not have even that limited option: instead, they are faced with the horrifying choice of (a) having the foreign partner live illegally in the U.S. (which means they face the constant threat of deportation, cannot legally work or study, and cannot ever leave the country to visit their family back home), or, worse, (b) living thousands of miles apart — continents away — from the person with whom they want to share their life.



This is one of those injustices so extreme and indefensible that it’s difficult, at least for me, to avoid high levels of anger when discussing, and it’s even more difficult to understand how any person could favor its continuation: just imagine having your government deny you the ability to live with your chosen life partner. So inhumane is this forced choice that even many countries that refuse to recognize same-sex marriage nonetheless grant immigration rights to their citizens’ same-sex partners on purely humanitarian grounds. As I’ve written about before, Brazil — with the world’s largest Catholic population, where Catholic bishops and evangelical pastors wield substantial political influence, a nation that was a military dictatorship as recently as 1985 — years ago granted immigration rights to same-sex couples with little controversy even as the question of same-sex marriage remains highly contentious. Yet the U.S. — Land of the Free — continues to deny this most basic right to its citizens; a bill to provide just this narrow immigration right to same-sex couples has been pending for years in Congress, going nowhere.

The lawsuit filed yesterday was commenced by the large New York law firm Paul, Weiss, along with the superb advocacy group Immigration Equality. On its site, that group features a profile of the five plaintiff couples, describing how they met, how many years they’ve been together, and the way in which DOMA forces them to be thousands of miles apart or live in untenable situations. I hear from couples like this all the time. When I spoke a couple of weeks ago at the University of Pennsylvania, I met a professor who is in her mid-sixties and preparing to retire; her partner of many years is an Italian national, also a unviersity professor and soon to retire. All they want to do is spend their retirement years living together and sharing their lives, but because the Penn Professor has health issues that require her to be in the U.S., and DOMA prevents her Italian wife from obtaining immigration rights with her to live in the U.S., they are unable to live on the same continent. It’s a travesty — sadistic and hateful — and it’s simply infuriating. As the complaint filed yesterday put it:

How can that possibly be justified? What makes it even more remarkable is that the U.S. Government, in numerous ways, has formally adopted the policy goal of keeping families together, and yet, as the Complaint puts it, “ironically, it is the federal government that threatens to tear bi-national families apart.” And, of course, the political faction that endlessly claims to advocate for keeping the Government Out Of Our Lives is the primary impediment here to this freedom. That many of these couples have children together makes the policy even more cruel and destructive. An added irony is that the Obama administration, to its credit, now refuses to defend the constitutionality of DOMA in court because it has concluded that the law is so blatantly unconstitutional that the DOJ cannot in good faith defend it, yet it continues to enforce the law.

What ultimately permits this to continue is the lingering belief, even among those claiming to be supportive of gay rights generally, that same-sex married couples are not really the equivalent of opposite-sex married couples. For years now, I’ve continuously encountered attempts — first it was from Bush followers and now often from Obama loyalists — to minimize and belittle the injustice here, as though being forced out of one’s own country in order to be with one’s spouse is some sort of trivial, overblown problem. In fact, the right to choose one’s most intimate relationship and to share one’s life with one’s life partner without interference from the state is the bedrock of individual liberty and human happiness. There is zero justification for defending or minimizing the oppression that results from the denial of this right. This lawsuit may very well succeed, but at best, it will be years before it’s finally resolved. In the meantime, the number of binational same-sex couples will surely increase — a globalized world produces increasing numbers of such couples — and most will continue to face hideous life choices that nobody should have to endure.

* * * * *

On April 15, in Washington D.C., I’m delivering the keynote speech, on Islamophobia and the law, at the annual conference of the National Coaliation to Protect Civil Freedoms; ticket and event information is here. On April 12, in Ottawa, Canada, I’ll be speaking at an event organized by long-time commenter Bill Owen; the heroic Maher Arar will speak as well, and ticket and event information is here. On April 14, I’ll also be at the University of Chicago, and will post more details for that event in a few days.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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