by Lavi Soloway, Stop the Deportations – The DOMA Project
On February 22, 2012, San Francisco Judge Jeffrey S. White became the second Federal District Court judge in America to rule that DOMA was unconstitutional. The first such ruling came from Boston Judge Joseph Tauro in July 2010. At the time of his ruling, Judge Tauro was a 79-year old Republican appointee, President Richard Nixon’s longest-serving appointee to the federal bench. Tauro wrote two opinions that summer issued on the same day, each striking down DOMA as unconstitutional. Nearly two years passed before the appeals of Judge Tauro’s decisions would be heard and decided by the First Circuit Court of Appeals. As we all know now, last week a three-judge panel of that august appellate court ruled unanimously that DOMA was unconstitutional. The opinion itself was authored by Justice Boudin, an appointee of President George H.W. Bush.
Two more Federal District Courts have also found DOMA to be unconstitutional in just the past two weeks. Yesterday, in New York’s Federal District Court for the Southern District, Clinton appointee, Judge Barbara S. Jones, declared DOMA to be unconstitutional in a case involving the now-famous LGBT rights activist, plaintiff, and widow, Edie Windsor. Last month, Oakland, California Judge Claudia Wilken also found DOMA to be unconstitutional in a similar case. In all there have been five rulings by four federal judges declaring DOMA Section 3 to be unconstitutional, and the unanimous federal appellate court ruling by the First Circuit in the “Gill” case, also striking down DOMA Section 3 as a violation of the equal protection clause of the United States Constitution.
What does this mean for married lesbian and gay binational couples? The argument for interim remedies to be put into place could hardly be stronger, as the fate of DOMA is wobbly at best. And yet the administration has done little to protect our families. We must keep up the pressure on the Obama administration to demand an “abeyance” policy. No immigration reform or LGBT rights organization is currently engaged in a national “abeyance” campaign. We must keep the focus on the harm caused every day to binational couples and our families. We cannot afford to sit back and wait for change to happen.
The fight is not nearly over for binational couples. Unmistakably, there is some considerable wind at our backs. Make no mistake: the Supreme Court will still have the last word on whether the Defense of Marriage Act, i.e. whether the federal government’s refusal to recognize equally the legal marriages of same-sex couples, violates the U.S. constitution. There is no certain way to know what the outcome will be or when that decision will come. It may be one year or it may be several years. Gay and lesbian Americans have put their lives on hold, spent their savings and sacrificed years of their lives, deprived of stability because they cannot access the green card process.
Americans have been forced to live in exile with their same-sex partners or spouses, simply because they are gay. Their struggle continues on a daily basis. Every day lesbian and gay binational couples are separated by thousands of miles and unable to be together; LGBT families are torn apart, with parents kept apart from their children by this unfair law, and there is something that this administration can do to prevent it. It must end now. All green card cases must be held in abeyance for at least a year until the Supreme Court rules in this case.
This administration has the power to accept all green card petitions filed by same-sex couples and put those cases on hold, thus providing legal status and employment authorization to every couple. Gay and lesbian Americans should expect no less from this administration which has said repeatedly that DOMA is unconstitutional. If that is true, then the President should order an immediate moratorium on deportations of spouses of gay and lesbian American citizens. The President should do what he has done before in other immigration law contexts when such dynamic change is afoot and a law is in a state of flux (you might be forgiven for saying that DOMA is drawing its last breaths.). President Obama should put on hold all green card cases filed by lesbian and gay Americans for their foreign spouses until the final judicial resolution of DOMA has been determined by the Supreme Court.
Abeyance is the only human policy to keep thousands of LGBT families, as many as 25% of whom are raising children, together.
Because of the Defense of Marriage Act, the federal government refuses to recognize, respect or honor their marriages for all legal purposes including immigration.
On April 4, Jackie and Gloria traveled to Boston to witness history. Sitting in a courtroom audience, they listened as judges and attorneys debated whether the Constitution guarantees their right to be treated equally as a married couple.
Less than 60 days later, the First Circuit Court of Appeals became the first appellate court in the United States to strike down DOMA, an important milestone on the road to full equality.
Yet, for Jackie and Gloria, nothing has changed, and they don’t have the luxury of waiting until the ultimate fate of DOMA is decided.
Looking at these two young women — so full of love for each other and wanting nothing more than to build a future together — we cannot allow this cruel and discriminatory law to tear them apart.