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Binational couples file DOMA suit

by Michael K. Lavers | The Bay Area Reporter

Five binational same-sex couples filed suit against the Defense of Marriage Act this week on the grounds that it unfairly prevents them from sponsoring their partners for immigration purposes.

Edwin Blesch and Tim Smulian of Orient, New York; Frances Herbert and Takako Ueda of Dummerston, Vermont; Heather Morgan and Mar Verdugo Yanez and Santiago Ortiz and Pablo Garcia of New York City; and Kelli Ryan and Lucy Truman of Sandy Hook, Connecticut filed their lawsuit in the U.S. District Court for the Eastern District of New York on April 2.

The couples are legally married in the states in which they live, but DOMA bans the federal government from extending the same benefits that heterosexuals automatically receive through marriage.

“They cannot keep their families together – the American cannot sponsor their partner for immigration benefits because of the Defense of Marriage Act,” Rachel B. Tiven, executive director of Immigration Equality, told reporters April 3. “That is why we have gone to court.”

The plaintiffs’ lawyers maintain that Section 3 of DOMA, which specifically bars them from sponsoring their partners for immigration purposes, violates the Fifth Amendment’s equal protection clause. Eric Stone, an attorney who represents the couples, stressed the case is not specifically about nuptials for gays and lesbians.

“It is a constitutional claim, it is not a claim on the fundamental right to marry,” he said.

Ueda met Herbert shortly after she and her future wife began their freshman year at Aquinas College in Michigan in 1979. She married a man after she graduated and returned to Japan. Ueda divorced her husband in 2000, and moved to Vermont. She received an F1 student visa the following year and subsequently earned an associate’s and bachelor’s degrees.

Ueda applied for her green card last September, and Herbert petitioned the U.S. Citizenship and Immigration Service to sponsor her. The couple married at their Vermont home in April 2011, but the U.S. Department of Homeland Security denied Ueda’s application in December because the federal government cannot legally recognize their marriage under DOMA.

“I am very proud to be part of this litigation,” said Ueda. “I believe and I trust that things will work out.”

Tiven stressed Ueda and Herbert’s story and those of the other four plaintiff couples demonstrate the ongoing plight of binational same-sex couples in this country.

“The denial of immigration benefits can force a couple apart forever or force them into impossible choices where they have to leave the country that the American has grown up in and the country in which they have built their lives together simply to stay together,” she said.

The Immigration Equality case is the latest in a series of lawsuits that have challenged DOMA over the last two years.

Disabled Army veteran Tracey Cooper-Harris sued the U.S. Department of Veteran Affairs in federal court in Los Angeles in February after the agency denied her application for spousal benefits for her wife. Eight gay and lesbian service members and veterans filed a lawsuit last October that challenges DOMA’s constitutionality. A federal appeals court in Boston on Wednesday heard oral arguments in a case filed on behalf of six married same-sex couples and a widow from Connecticut, Vermont, and New Hampshire who claim the law is unconstitutional.

The Obama administration announced in February 2011 that it would no longer defend DOMA in federal court. The White House supports a bill that would repeal the statute that then-President Bill Clinton signed in 1996, but the Bipartisan Legal Advisory Group in the House of Representatives continues to defend it.

House Minority Leader Nancy Pelosi (D-San Francisco) and House Minority Whip Steny Hoyer (D-Maryland) criticized the group’s decision to intervene in Cooper-Harris’s case in a letter they sent to House Speaker John Boehner (R-Ohio) on March 30.

“This latest decision not only ignores the civil rights of LGBT Americans but opens a new, direct assault on veterans,” wrote Pelosi and Hoyer. “The men and women of our armed forces serve with courage and dignity on behalf of our safety and security. They risk their lives for the country they love – and they should not face prejudice at home because of whom they love. These brave soldiers deserve nothing less than our gratitude, our respect, and the benefits they have earned in battle.”

The Uniting American Families Act would allow American citizens and permanent residents to sponsor their same-sex partners for immigration purposes. The measure has 134 co-sponsors in the House and another 24 in the Senate, but it is highly unlikely to pass during this Congress.

“We are tremendously optimistic that it will move forward as soon as Congress is ready to move forward on immigration reform,” said Tiven.

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