Binational gay couples sue to overturn DOMA

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The plaintiffs. - PHOTO: Courtesy ImmigrationEquality.org

Five same-sex couples filed a suit April 2 in the Eastern District of New York, challenging Section 3 of the federal Defense of Marriage Act. The 1996 law prevents lesbian and gay American citizens from sponsoring their spouses for green cards.

The lawsuit, 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.

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples,” the complaint states.

Were the plaintiffs opposite-sex couples, the suit says, “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 (them) on the path to lawful permanent residence and citizenship.”

The five couples named in the suit are:

• Edwin Blesch and South African spouse Tim Smulian. They have been together for more than 13 years and were married in South Africa in August 2007. While their marriage is honored by Blesch’s home state of New York, their green card petition was denied on March 14. They reside in Orient, N.Y.

• Frances Herbert and spouse Takako Ueda, who is originally from Japan. They have known each other for 22 years and were married in April 2011. Their petition for a green card was denied on Dec. 1, 2011.  They reside in Dummerston, Vt.

• Heather Morgan and spouse Maria del Mar Verdugo, a native of Spain. They have known each other for 14 years. They were married, in New York, in August 2011 and have a pending green card petition, which is expected to be denied. They reside in New York City.

• Santiago Ortiz and spouse Pablo Garcia, a native of Venezuela. Ortiz, a Puerto Rican American, met Garcia in 1991 and registered as domestic partners in 1993. In May 2011, they were married in Connecticut. They have filed a green card petition, which is expected to be denied.  They reside in Elmhurst, N.Y.

• Kelli Ryan and spouse Lucy Truman, a native of the United Kingdom. They have been a couple for more than 11 years and entered into a civil union in July 2006. They were married in March 2010 in Connecticut. Their petition for a green card was denied on March 27. They reside in Sandy Hook, Conn.

The plaintiffs in the suit include a retired professor of English at a New York college, a home eldercare provider; a marketing director for a global nonprofit organization; a retired school psychologist and two doctors of immunology.

“The families … meet every qualification for immigration benefits, with the sole exception that they happen to be lesbian or gay,” said attorney Rachel B. Tiven, executive director of Immigration Equality. “Solely because of their sexual orientation, they have been singled out, under federal law, for discrimination and separation. That’s not only unconscionable; it is unconstitutional. We know DOMA cannot withstand careful review, and we know we will prevail on their behalf.”

Immigration Equality provides legal counsel to LGBT immigrant families. In 2011, the organization fielded 1,431 legal inquiries from binational couples like those in the suit filed today, a 141 percent increase over the previous year.

A recent analysis from the Williams Institute at the University of California-Los Angeles estimated 36,000 couples – and the nearly 25,000 children being raised by them – are impacted by the United States’ refusal to recognize lesbian and gay relationships for immigration purposes.

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

DOMA, the lawsuit concludes, “threatens . . . marriages while purporting to ‘defend’ marriage. It does violence not only to these five couples, not only to the institution of marriage, but to the Constitution of the United States.”

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