Constitutionality of DOMA Challenged in Court by Gay Binational Couples

Frances Herbert & Takako Ueda

Frances Herbert & Takako Ueda

Five lesbian and gay couples filed suit in the Eastern District of New York Monday, challenging Section 3 of the federal Defense of Marriage Act (DOMA) which prevents American citizens from sponsoring same-gender spouses for legal permanent residency. Thelawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.

“Plaintiffs are five committed, loving couples, lawfully married,” the complaint begins. “In each couple, one spouse is an American citizen and the other spouse a foreign national. If they were different-sex couples, 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 the foreign spouse on the path to lawful permanent residence and citizenship. Solely because of DOMA and its unconstitutional discrimination against same-sex couples, however, these Plaintiffs are being denied the immigration rights afforded to other similarly situated bi-national couples. This is an action to remedy that hateful, harmful, and unlawful discrimination.”

“We’re very proud to be part of this lawsuit,” said Kelly Ryan, a Senior Scientist at Boehringer Ingelheim Pharmaceuticals in Ridgefield, Connecticut, on a teleconference for reporters hosted by Immigration Equality yesterday. Ryan and her British partner of 11 years, Lucy Truman, a Postdoctoral Fellow in Immunology at Yale University, are one of the five couples represented in the lawsuit.

All the couples have been together for well over a decade and have done everything they could to secure their relationships legally in the U.S., including getting married in Connecticut, New York and Vermont, states where same-gender marriages are recognized. Ryan and her partner are hopeful a verdict on their behalf will benefit similar couples across the country.

“We will be relieved of this uncertainty and paralyzing feeling that we feel as we go about our ordinary lives and we will be able to achieve this not only for ourselves but on behalf of everyone else who finds themselves in this position,” she said.

The Obama administration said last year that it would no longer defend DOMA in court, because it believes the law to be unconstitutional. However, the law remains on the books, forcing many bi-national couples to live with the anxiety of deportation.

Another plaintiff, Takako Ueda, a Japanese national who has known her American spouse, Frances Herbert, for over 22 years, believes the time has come to take this kind of action. “The right time, the right place,” she said. “I believe and I trust that things will work out. It must be. It has to be.”

Indeed, it has to work out for the five litigants and the estimated 28,500 other binational lesbian and gay couplesthat are discriminated against because of DOMA. These are loving couples who live in constant uncertainty and anxiety, often apart from each other, denied the feeling of stability which should be a byproduct of marriage.

“These families represent the tens of thousands of others like them who are threatened with, or have already been forced into, separation or exile,” said Rachel B. Tiven, executive director of Immigration Equality. “Their victory in court will end the threat that has hung over their families, their homes and their marriages for far too long.”

This lawsuit and others challenging DOMA, will likely end up in the Supreme Court. I can only hope that a majority of the Justices rule against the patently unjust and discriminatory law. This is for the tens of thousands of binational lesbian and gay couples in this country, which include me and my husband.

Originally posted on Feet in 2 Worlds, April 4, 2012.

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