(updated below)
In July of this year, a federal judge ruled that the Defense of Marriage Act -- the 1996 law enacted with overwhelming bipartisan support and signed into law by President Clinton -- was unconstitutional. Among other things, DOMA bars the federal government and all federal agencies from issuing any marriage-based benefits -- including immigration rights -- to same-sex couples, even if those couples are legally married in the U.S. It effectuates that ban by restricting federal recognition of spousal relationships to "a legal union between one man and one woman as husband and wife." The court ruled that this provision was unconstitutional because it violates the rights of states under the Tenth Amendment to define "marriage" for themselves, and independently violates the Equal Protection clause of the Fourteenth Amendment.
Barack Obama campaigned for President on a platform of repealing DOMA, and when he was running for the Senate in 2004, he wrote a letter to a gay Chicago newspaper calling DOMA "abhorrent" and its repeal "essential." Despite those stated positions, and despite large (and growing) American majorities in favor of granting legal rights to same-sex couples on a fully equal basis, a repeal of DOMA was never even brought up for a vote during the last two years, and it's now very difficult to envision legislative repeal of this ban. Nor was a separate bill to provide same-sex couples with the same immigration rights as opposite-sex couples considered. Additionally -- just as is true for Don't Ask/Don't Tell -- because the Obama DOJ defended the constitutionality of DOMA in court and then obtained a stay of the court's ruling striking down the law while the DOJ appeals, DOMA continues to be enforced as the law of the land, resulting in the active, ongoing denial of a whole slew of vital federal legal rights to same-sex couples in the U.S.
Leaving aside the debate over whether the Obama DOJ should be defending DOMA in court, the human costs from this conduct are severe, though often overlooked. One of the most destructive aspects of DOMA is that it bars gay Americans who are married to a foreign national -- an increasingly common situation for Americans generally in a globalized world -- from obtaining a marriage-based visa for their same-sex foreign spouse. By contrast, Americans who are married to a foreign national of the opposite sex receive more or less automatic visas and then Green Cards for their spouse, entitling them to live together in the U.S.
Just please watch this two-minute news report, describing the gut-wrenching (though not uncommon) plight of Josh Vandiver, an American citizen, and Henry Velandia, his Venezuelan spouse. Despite their being legally married in Connecticut after four years of living together, Velandia, because of DOMA, is about to be deported to Venezuela, where Vandiver is unable to live and work. In other words, the U.S. Government is about to separate this couple, who want to spend the rest of their lives together, and force them to live on separate continents thousands of miles apart:
Independent of debates over the meaning of "marriage," what kind of person could possibly watch that and support something like this: the devastating denial of this most basic equality? And this situation is far from uncommon. Although it's difficult to quantify exactly, a comprehensive report from Human Rights Watch in 2006 documented that the number of gay Americans barred from living in the U.S. with their foreign national spouse is in the "thousands." And that's all independent of the denial of a slew of other benefits -- including survivors' benefits for federal benefits -- that impose serious suffering and hardship on gay Americans for absolutely no good cause.
As I wrote about before, DOMA is what prevents me from living full-time in the U.S., as my same-sex partner is a Brazilian national. But as difficult and anger-generating as it is to be legally prevented from living in my own country with my partner, I'm fortunate enough to have the best possible outcome: (1) the ability to live outside the U.S. and still work (though not without considerable impediments and losses of opportunity), and (2) a partner who is from a country that grants immigration rights to same-sex couples and thus allows me to live and work there, thus enabling us to live together in the same country.
But most gay Americans married to a foreign national have no such luck. Most people don't have careers that enable them to live outside of the U.S., and even for those who do, many are married to foreign nationals from countries which also do not provide immigration rights to same-sex couples. For the thousands of same-sex couples in that situation, the choices are grim indeed: they can choose (1) to live illegally in one country or the other, or (2) separate and live thousands of miles away -- for the indefinite future -- from the person with whom they want to share their lives. As the HRW Report put it: "thousands of U.S. citizens and their foreign same-sex partners face enormous hardships, separation and even exile because discriminatory U.S. immigration policies deprive these couples of the basic right to be together."
Each time I've written about this issue, I receive emails or comments from Americans in this predicament, and they illustrate how severe is the hardship even for those who are relatively lucky in finding some minimally workable solution. In December, 2008, I wrote about the prospect that Democrats would use their large majorities to repeal at least the part of DOMA which bans the equal granting of federal marriage rights (a hope which Ann Althouse derided as naive and baseless: turned out she was right, even though [as polls make clear] she was blatantly wrong in her claim that granting equal benefits to same-sex couples would be politically destructive for Democrats). In response to that post, I received this comment from a gay American who is married to an Indian national and was forced to move to Canada in order to be together:
I'm one of the people Glenn's writing about, and I'm ready for some change I can believe in.
I'm an American currently living in exile in Canada. My partner is from India. We're both struggling to adapt to the challenges of living in a new country. This wasn't how we wanted things to work out, but it's the best option open to us. I had to immigrate here before I could sponsor his immigration. It was expensive, it took a long time, and was difficult to leave my family and friends behind, but I had no choice. I'll forever be grateful to Canada for giving us this opportunity, but I hope one day to return to the States with my partner. Repealing DOMA would be big step towards realizing that dream.
It's far, far worse for those who don't have the resources or ability to move to a country that is foreign to both partners: their lives become harrowing if they try to stay together. The last time I wrote about this issue, I received this email from a gay American citizen who has been married to a Brazilian national for 13 years; for a variety of reasons, they are unable to live in Brazil, and the Brazilian partner is no longer able to obtain a visa to be in the U.S. legally:
Glenn,
I just wanted to drop you a line and express my deepest, most profound gratitude that you decided to highlight this issue. As is evident by many of the commenters, this is something that almost no one thinks about or even knows about and when you're someone who is affected by it, that can make for some lonely moments as you try to get a handle on your problems.
My husband of 13 years is also Brazilian and since his work visa expired 6 years ago, we've been living both in fear and in debt. Whatever savings we had were wiped out in our futile attempts to find some way - any way - for him to stay in this country legally. Well, it didn't work out (no surprise) and since he is adamant about never wanting to live in Brazil again (for a variety of reasons), here we are. I never thought I'd use this word to describe myself but with the loss of his earnings and the frantic attempts to fix the situation, we are pretty much destitute.
Poverty, I can live with. It's ultimately, for someone like myself (white, educated, middle class background) a solvable situation even if most days that road seems unbearably long. It's the fear and the sadness that is so devastating. Fear that he will somehow be found out and taken away from me and sadness because his family back home is poor and has little opportunity to travel, so he hasn't seen his father or brother in 14 years and has only seen his mother twice in that time. His parents are getting older and always in the back of my mind, I have a cold dread of the day when one of them gets sick or ultimately passes away because psychologically, I have no idea how he's going to be able to handle that or how I'm going to be able to help him through that. In addition, because he can't legally work here, his earnings are practically nil and like many people, that is devastating to his pride and self worth.
I don't know why I'm telling you all this. It's certainly not something you're naive about or need to be told about. I guess I just wanted to tell you how gratifying it was to see someone highlight this issue, especially someone who is so good at explaining complex legal and political issues to his readers. Even better, you're someone who is personally affected by it. You do great work and I wouldn't expect you to become a spokesperson for this sort of thing, but I would urge you to consider writing about it again when circumstances warrant. People just don't know about this and in my experience, even people who are adamantly opposed to gay marriage find this to be cruel and untenable.
So, thank you. For a moment yesterday I didn't feel quite so lonely just knowing that people were gaining an understanding of the issue.
Best Regards,
XXX XXXXX
There are all sorts of excuses offered as to why, two years into Obama's presidency and with a large Democratic majority, these grave injustices (and those brought about by DADT) continue. There is validity to some of those excuses. But that doesn't change the fact that gay and lesbian Americans poured enormous amounts of time, energy and money into electing Obama and a Democratic majority, only to watch as the Federal Government discharges gay service members and deports the partners of gay Americans with as much fervor and destruction as ever before, with no real end in sight. Just watch that above-embedded video again, or read those emails, and ask: is it really hard to understand why -- rational or not -- there's such a pronounced lack of enthusiasm on the part of that constiuency to do anything to help Democrats remain in power when it's so clear that this won't change (unless courts, over the best efforts of the Obama administration, change it)?
And when one listens to the actual human cost from this legalized discrimination, it's hard to overstate just how malicious and warped are those who support it. There are 16 countries in the world, spanning five continents, which refuse to force their gay citizens to choose between exile, living illegally or permanent separation, including many which do not recognize same-sex marriage. Yet the U.S. continues to force that horrific choice on its gay citizens. Most political debates have reasonable arguments on both sides. Subjecting gay Americans to self-exile or preventing them from living on the same continent as their spouse is manifestly not one of them. It's a grave injustice completely bereft of any justification for being allowed to continue.
* * * * *
The premier group working on immigration equality for gay couples is, aptly enough, Immigration Equality, which has substantial resources and information -- and can be supported -- here.
On an unrelated note: last month, I participated in an event at Brooklyn Law School on the Israeli flotilla attack. It was an excellent discussion, and audio of the full event is available here, courtesy of WeAreMany.org. The first speaker was Fatima Mohammadi, an Iranian-American lawyer who was on the deck of the Mavi Marmara at the time of the attack and powerfully recounts what she witnessed; I was the second speaker (beginning at around the 17:15 mark), discussing how this incident was presented in the U.S. and what that reveals about U.S./Israeli relations (see this remarkable news story from this week to underscore several of the points I made); and the third speaker was Columbia Professor Rashid Khalidi, discussing the historical context leading up to this episode.
UPDATE: The lawyer representing the couple in the above-embedded video, Lavi Soloway, sent me an email earlier today which reads:
The featured FOX NEWS couple are my clients and are part of group preparing a potential challenge to DOMA and working to stop the deportations. Would it be possible for you to direct folks who want to know more to our campaign www.stopthedeportations.com and/or stopthedeportations@gmail.com because we are looking for more couples to join.
I've actually known Soloway for some time and he's an excellent lawyer, particularly in this field, so anyone who could benefit from participating should consider contacting him.
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