Subscribe to Breaking NewsRuby-Sachs: The DOMA Challenge and What It Won’t Achieve
Today, GLAD, the organization responsible for the gay marriage challenge in Massachusetts, launched a legal challenge of the Defense of Marriage Act. Now, legal challenges are slow, they are risky, but it is a surefire way to see some movement on an issue. I’m excited and think that the basis for the challenge – a series of concrete examples where legally married individuals are denied Federal funding because of their sexual orientation – is well orchestrated. That said, the challenge saddens me.
In an effort to tailor the case to concrete examples of citizen’s rights being denied for purely discriminatory reasons, GLAD has chosen not to challenge DOMA as a whole. This means that all of the discriminatory practices that don’t fall under Social Security laws, benefits programs for federal employees, retirees and their surviving spouses, and the regulations and practices governing issuance of passports in states where people can marry aren’t effected.
So, even if GLAD is successful, families torn apart by immigration laws that don’t recognize same-sex marriages will have no recourse.
This saddens me greatly – I’m invested in the rights of bi-national couples being half of one myself - and also serves to illustrate the uphill battle equal immigration rights have. Immigration is a hot-button issue and legal challenges attempting to create more immigration , especially in this economic climate, are risky. As well, while the rights are the citizen spouse are seriously compromised, the challenge necessarily asks courts to look at the rights of non-citizens as well. Any positive decision would be a victory for Americans and non-Americans alike.
By piggy-backing immigration rights on a more clearly monetary and national issue, like federal funding, GLAD might have given immigration equality a fighting chance.
Immigration laws preventing spousal sponsorship for same-sex couples creates a devastating reality for many families. Getting social security and death benefits may be important, but I sure hope that this case is able to set a precedent that quickly applies to those life altering issues like finding a country where both you and the person you love can live together.
@Sammy
There is quite a difference between two non citizens such as your grandparents and the US denying the right of a single US Citizen to love, marry, and sponsor a non US Citizen into this country. In fact you forget that your stance tramples on the rights or a US Citizen already legally in the United States and had this person just happened to be straight rather than gay, this wouldn’t be an issue.
But I’m glad all you care about is yourself. In fact I’m sure you would be surprised out how easy it was to immigrate to the US in the 1920s. Today can even be a long process for even those who legally get the chance.
So excuse me while I don’t even have a change because idiots like you don’t think I have the right to love a person of the gender of my choosing. That i don’t have the right to live in the same country of that person nor does he have the right to live in my country. I’m glad people need the power trip to tell people who they can and cannot love.
Rights for non-citizens? What? How can that possibly be piggy backed onto this issue? Those that are challenging DOMA are fighting for citizens of OUR country. I honestly don’t mind people coming here, in fact, i welcome it. However, provided they follow our laws to attain citizenship, they are entitled to all the rights that follow it.
For those that circumvent our laws, they deserve nothing. At least in my eyes anyway. I treat those that bypass our laws as though they’ve committed a crime far worse than sedition. Why you ask? Because people like my grand father & grand mother that came to the states back in 1928 from Honduras did what most immigrants do, fill out the paperwork to have the right to live here. To even give a single right to “Non-Citizens” is to dis-honnor everything they both went through to have acceptance here in the US. And that my friends, is something i’ll spend the rest of my life fighting against.
I’m surprised immigration is not more of a priority. This lawsuit while it does push our rights forward is solely based around the idea of money, benefits, and passports.
The fact is that couples are forced to either live apart or one partner may decide to live illegally in the US. I’m sorry this forced separation is a little bit more hurtful to those involved than the fact they missed out on $10,000 in federal benefits or tax breaks.
The LGBT community needs to get together and decided to push the UAFA or lawsuits that end the extreme hardships.
Rachel, Thank you so much for your response and explanation. I agree that immigration is a difficult issue – there was some concern in Canada that gay marriage would not lead to sponsorship rights because of exactly that kind of government deference and wide review powers you refer to.
I don’t think there is an easy right or wrong answer to the question of strategy for a legal action against DOMA. That said, I wanted to point out that, by divorcing the issues, those left behind have a harder time. Creating a positive precedent is important, but these cases take so long, immigration rights will be far behind any gains from your series of hearings.
I do want to thank you for all that you do for LGBT Americans and for binational couples as part of Immigration Equality. We appreciate it. And those in much worse situations than myself rely on your advocacy.
Dave,
My understanding is that each governmental agency has a team of lawyers that defend their actions. So, in this case, the social security administration will have their own lawyers who will argue for the DOMA exclusion. The agencies may also, I presume, agree on one team of lawyers for all of them. Though understand that this challenge has a number of different plaintiffs each targeting different agencies.
Putting pressure on Holder won’t effect the actions of these lawyers. Putting pressure on your representatives will help push these rights and other rights through the legislative process. Litigating is slow. Best to attack on all fronts.
Thanks for your comment, and all the comments on this piece!
Best
Emma
Ms. Ruby Sachs: A comment and question, please.
Question: can you shed some light on Holders role in this case? Can he choose, as Brown has done in CA to not defend this? If he does, who would be arguing in defense of DOMA since it is the AG’s role traditionally to defend existing laws from challenges like this? I would like to know how much pressure we should put on him. If he puts up a defense of DOMA in this case, it would make Obama look like the lier that I hope he isn’t…I say hope because he hasn’t acted on things he promised, like stem cells, in the fast manner he promised. Ditto some of our issues. So please, help us understand the value of us putting intense political pressure on our AG.
Comment: I agree immigration laws are broken in this country. You can forget about our rights and still realize that businesses are put at risk by their not being enough visas each year and legitimate hard working immigrants are sent home as criminals because the government is too slow in issuing visas. With all due respect I would like to see us fix the marriage issue for our own citizens first, then the citizens of Canada and abroad, like yourself, could be next in line. Immigration is a much bigger mess than just equal marriage rights and very much a hot button issue here with the right wingers who don’t like brown skin. Not to say that is right, but we have a chance to fix our own marriage problems and I don’t want immigration thrown in (yet) to be the anchor it surely would be on this case.
Thanks for your feedback….
Thank you for pointing out the incredible hardships that binational couples face under our discriminatory laws. Immigration Equality has been fighting for equal immigration rights for LGBT people for more than a decade. Before filing this lawsuit, GLAD and Immigration Equality conferred at length and agreed that it would be better for binational couples if the suit did not include immigration.
Federal courts apply the “plenary powers doctrine” to immigration cases, meaning that Congress has almost unlimited power to make decisions about who can immigrate to the U.S. This special deference to Congress makes constitutional challenges in the area of immigration law especially complicated and difficult to win and we felt that adding an immigration issue would not help the case. However, if and when the case succeeds, that will be an enormous benefit to couples seeking all 1,138 federal benefits.
Meanwhile, the Uniting American Families Act (UAFA) is a bill in Congress that would change the immigration law to allow gay and lesbian Americans to sponsor their partners for for immigration benefits, as opposite-sex married couples can currently do. In a new administration and a new Congress, the prospects for that bill look better than ever. We are all working together to achieve the same goal – full equality under the law for every LGBT person. The important thing is for people like you to continue to tell your stories so that every Congress member and every American understands the real human suffering that comes with being a second class citizen.
Keep speaking out on this. The injustice of having families torn apart because of homophobic immigration laws needs to be told over and over. Eventually we will win the right to sponsor our loved ones and unite our families, but until that day comes, keep speaking out.
While no one’s joy would be greater than mine to see DOMA completely gone, given the composition of the Supreme Court (Thomas, Roberts, Scalia, Alito will not vote for anything nearing equality), it might be wise to do this piecemeal to pursuade Kennedy to follow our lead.
It is much harder to deny someone equal treatment concerning taxes or Social Security, than to do anything positive for immigrants or find a right to gender neutral marriage in the constitution.
I think getting a slow momentum going will erode the rational basis for DOMA piece by piece. To do otherwise would be very risky, and could very will bring about a decision declaring DOMA constitutional. This would be a terrible precedent for the future.
I think going piece by piece is the better stategy, at least until Scalia/Thomas/Roberts/Alito dies or retires (once can hope it is soon, though actuary tables don’t give much hope anytime soon). A stable fair minded majority (5) would be needed to have a fair chance of getting DOMA out.