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Recent essay on policies against LGBT families in the immigration context

1 Nov

Hello all! I still have yet to add my previous posts from my other site, but I will probably toward the end of the semester.

Until then, this is an article I have recently written. Let me know what you think 🙂 –I.N.

Federal discrimination against LGBT families, and why it affects LGBT immigrants


“It always seemed to me a bit pointless to disapprove of homosexuality. It’s like disapproving of rain.”
-Francis Maude

Views on LGBT families impact government policy

WHAT is the most significant difference between LGBT and straight (heterosexual) relationships? To some, the most significant difference is the sexuality of the individuals engaged in the presumably consensual association. To others, there is no significant difference, so long as the individuals engaged in the relationship love each other; and in both cases, these views regarding LGBT relationships likely extend to individuals heading LGBT families. To this extent, there is little empirical evidence to suggest that LGBT families are significantly different than their straight counterparts, as these families appear to face the same socioeconomic conditions, and live in the same locations as their straight counterparts. For example, though the census did not conduct its first count of same-sex couples until 1990, both public and private findings show the gay community to be very diverse population, contradicting the view that mainstream gays are white, affluent, urban dwellers. Further evidence points to the fact that members of the LGBT community have been forming families along the East Coast, in places not considered LGBT havens, where there is a high possibility for harassment based on sexual orientation. But for the fact that LGBT individuals head these families, empirical and statistical analysis substantiates the fact that LGBT families are similar to straight or heterosexual families.

The multiplicity of views regarding LGBT families are based on personal experience and opinion; social mores; religious or secular education; or scientific and psychological research. Whatever the basis for personal beliefs about these families, the various views on this topic inevitably influence governmental policy regarding the status or recognition of these families in the law. Recognition of LGBT familial status in the law has deep implications for families consisting on non-U.S. citizens. This essay argues that the effect of U.S. policy against LGBT families contradicts the government’s policy of family reunification in the immigration context.
A starting point in this policy analysis is the definition of family (the familial status of a group) recognized in our legal system. As defined by Black’s Law Dictionary, a family is a group of persons connected by blood, affinity, or the law; consisting of parents and their children; of persons who live together and have a shared commitment to a domestic relationship. While a family may exist without legal recognition, it is the legal aspect of Black’s definitions that is important for policy purposes, because when the law recognizes a family, the government confers benefits upon it, which are not given to other groups. Other than the consanguineal or adoptive relationships of individuals, this legal system recognizes certain marriages—conferring those individuals with familial status and the attending benefits. For this reason, marriage will be the focus of this discussion, as it is the main method by which the government directs its policies against LGBT families.

A Federation standing opposed to the expansion of familial status

In order to understand how the U.S. policy against LGBT families contradicts its policy for family reunification, the history of legal familial status recognition in the marriage context is relevant. Arguably, the best starting place is Black’s Law Dictionary, as a compendium of the legal lexicon, which has changed over time to reflect legal practitioners use of concepts. Black’s Law Dictionary defines marriage as the legal union of a couple as spouses; the validity of which is determined by the party’s capacity to marry, mutual consent, and contract prescribed by the law. In the later editions of the dictionary, it defines same-sex marriage as a ceremonial union of two people of the same sex in a marriage, or “marriage-like” relationship; explaining that the United States government and most American states do not recognize same-sex marriages even if legally contracted in other countries. The Black’s definition exhibits the fact the U.S. legal system has a policy against recognizing same-sex marriages, a policy which reflects the society’s discrimination against LGBT families. Even lay dictionaries describe marriage as the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law. The culture, which gave rise to such a policy, reflected in a prominent legal dictionary, and displayed in a common-use dictionary, treats LGBT marriage a secondary social-legal concept. This is evidenced in the placement of the same-sex marriage in these texts. In the Merriam-Webster Dictionary same-sex marriage is placed secondly, as a union of person of the same sex in a relationship—as if it were a traditional marriage (assuming that a traditional marriage is a union of one man and one woman).

Aside from legal and lay dictionaries, which may or may not have any bearing on the outcome of governmental policy toward LGBT families, the federal recognition of marriage has some constitutional basis. In particular, Article IV, and amendments 10 and 14 establish the powers of the states and the central federal government over civil marriage. Article IV, § 1 stipulates that each state must give full faith and credit to the laws and judicial proceedings of every other state, in a manner prescribed by Congress. This means that states must recognize and enforce the (marriage) laws of other states, where applicable, and in a manner specified by Congress. The 10th amendment states that powers not delegated to the federal, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In the context of marriage, the states have the power to institute and recognize certain civil marriages, because it is not a power delegated to the federal government. The 14th amendment requires that states may not deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The 14th amendment was promulgated to enforce substantive, procedural, and equitable fairness, before the law; however, this fairness requirement is subject to structural limitations of the constitution. The interplay of Article IV, and amendments 10 and 14, result in the states having the power to recognize civil marriages, which must be recognized by other states, to the extent that Congress stipulates. In the event congress stipulates that the various states are not required to recognize certain laws, particularly over marriage, the states are not constitutionally obligated to give full faith and credit to marriages recognized in other state. This has the palpable consequences in a society that generally, at the very least, treats same-marriages as a secondary legal institution. What has in fact happened is a state ability to prohibit the recognition of such families, by interpreting marriage in a limited manner, through reactionary governments.

A reactionary government and the path towards DOMA

Toward the mid to late 20th century, LGBT individuals pushed for legal recognition of their civil rights, and their familial relationships. The Stonewall riots in New York City, a famous symbol of the need for equality in legal treatment and protection, resulted from the demeaning harassment, assaults, and arrests by local authorities of LGBT individuals. During this time certain parties sought to have their status legally recognized, with the attendant conferral of governmental benefits. And although legal recognition of same-sex marriage has recently become one of the leading issues in American politics, but the history of related impact litigation goes back at least four decades. Of the most persistent arguments by courts and reactionary legislatures is that the State has an interest in preserving the traditional institution of marriage. Much of the litigation has focused on the challenging states’ statutory ban of same-sex marriage recognition based on the 14th amendment, and in response, many state courts have prevented same-sex marriages on the basis that it protects “traditional” institution of marriage. Some state courts may have accepted the states’ rationale, but have found an equal protection violation, remedied with a parallel institution. Other state courts have rejected the traditional marriage argument, requiring equity before the law. Finally, several courts have found ways to avoid addressing the issue. Same-sex marriage remains a highly contentious and political issue, with a direct impact on judicial appointments and elections, and a circular effect on the outcome of such cases.

The first equal protection challenge to a same-sex marriage ban was the 1971 case Baker v. Nelson, heard by the Minnesota Supreme Court. In that case, the court upheld the State’s denial of a marriage license to the two men. The couple challenged the denial on the basis of the 14th amendment’s Equal Protection Clause, because it was undisputed that the sole reason for the denial was that they were of the same sex (there were no other statutory impediments to a heterosexual marriage). Regardless of the 14th amendment, the court held that a sensible reading of the statute (absent an express statutory prohibition against same-sex marriages) displayed the state legislature’s intent to prohibit such marriages. That Court did not base its decision on the words of the statute, but on its interpretation of marriage. For instance, it stated that the institution of marriage was a union of man and woman, uniquely involving the procreation and rearing of children within a family, “as old as the book of Genesis.” The next year, the United States Supreme Court carried the policy against LGBT families by dismissing the petitioners’ appeal (“for want of a substantial federal question”).

Approximately 20 years later, the Hawaiian Supreme Court, in Baehr v. Lewin, declared marriage to be a state-conferred legal status (the existence of which gave rise to rights and benefits reserved exclusively to that particular relationship). It continued in its opinion by holding that a right to same-sex marriage was not so rooted in traditions that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of civil and political institutions. However, contrary to Baker, the Court did not leave the couples without a potential remedy, in that they were able attempt marriage equality based on an equal protection claim. If the couples were successful, the Court held that if the plaintiffs were successful, Hawaii could no longer refuse marriage licenses to couples solely on the basis that they are of the same sex. This decision was significant because it was the first-of-a-kind case, in which any state supreme court treated the traditional institution argument as being within its competence to assess.

State and federal legal challenges to same-sex marriage bans continued after Baehr, with no success until the 1999 Vermont case, Baker v. State of Vermont. In that case, the Plaintiffs were three same-sex couples, living together in committed relationships for periods ranging from four to twenty-five years. Two of the couples have raised children together, and each couple applied for a marriage license from their respective town clerk, being refused a license as ineligible per the state’s marriage laws. The Supreme Court of Vermont held that the legislature was constitutionally required to either include same-sex couples in the institution of civil marriage or find another way to provide them with identical substantive benefits. In response, the legislature created a parallel institution of civil unions in 2000, making Vermont the first state to do so.
Following closely on the heels of Vermont in Baehr, in 2003, the Massachusetts Supreme Court, in Goodridge v. Department of Public Health, held for the first time that same-sex couples had the right to marry. The plaintiffs in that case were fourteen individuals—partners ranging in age, many of whom had children. The Court began by opining over marriage, considering it to be a vital social institution, and an exclusive commitment of two individuals which provides an abundance of legal, financial, and social benefits. Further, the court noted that many people in society might hold deep-seated religious, moral, and ethical convictions that marriage should be limited to one man and one woman, and that homosexual conduct is immoral. However, the Court was only concerned with the State Constitution, and stated its obligation was to define the liberty of all—not to mandate personal moral code. Hence, the Court stated civil marriage as a wholly secular institution, and that state laws protect individuals right to marry against undue government incursion. For this reason, any law failing to satisfy the basic state constitutional standards of rationality was void. Thus, the interpretation of the word “marriage” as excluding same-sex unions lacked rational basis and violated state constitutional equal protection principles, especially since the laws of civil marriage did not privilege procreative heterosexual intercourse in particular.

While the state law progressed to include LGBT relationships in the protections of the legally recognized familial status, a concurrent movement against LGBT familial status sought to have LGBT marriages statutorily prohibited. Socio-political conservatives, using anti-gay rhetoric in the attempt to redefine marriage as an institution excluding homosexual relationships, led this movement. This resulted in the Defense of Marriage Act (“DOMA”), as Congress also became involved after the Republican presidential candidates all took a pledge to “protect marriage.”
The act stated that in determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various federal administrative bureaus and agencies, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex. Further, no U.S. State, or territory, could be compelled to give effect to any other state’s statutes, or court rulings with respect to a same-sex relationship treated as a legal marriage. Thus, DOMA changed the rule of construction in the definition of the marriage, as it was to be interpreted under federal statute; hence Title 1 is revised to state the DOMA interpretation of marriage. In the words of Justice Scalia, Congress without sound justification for denying same-sex couples the right to marry, showed political and social moral disapproval of same-sex couples, through the state apparatus. Proposed regulations failed to repeal DOMA in early 2011 in both the House and Senate. However, in June 2011, President Obama gave a speech stating that his administration stood opposed to the so-called Defense of Marriage Act, and would therefore no longer defend it in the courts. He stated it was a discriminatory and unconstitutional act. Attorney General Eric Holder sent a letter to House Speaker John Boehner, stating that § 3 of DOMA violated the equal protections of the Fifth Amendment. He concluded that he and the President believed classifications based on sexual orientation warrant heightened scrutiny, and thus as applied to same-sex couples legally married under state law, DOMA is unconstitutional. While the Department will continue to enforce DOMA, it will not defend it, “unless and until Congress repeals § 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”

DOMA effects on immigration and the family reunification policy

To end, DOMA has very serious ramifications for LGBT families in the immigration context, regardless of whether these families consist of U.S. citizens or noncitizens seeking to immigrate to the U.S. To understand how DOMA impacts immigration policy, we must first look to the broad federal power and reach over immigration. The federal government has constitutional power over immigration through legislation, judicial interpretation, and enforcement by the executive branch. Congress for instance has the power to naturalize individuals seeking to become US citizens, not born in the US (or who are not conferred citizenship status by some other means). This delegated power has been held to preempt state powers or statutes in immigration. The jurisprudence of federal courts has created in Congress an almost plenary power over immigration, because nowhere in the U.S. Constitution it is stated that Congress has power over “immigration” per se. Federal court jurisprudence has given Congress and imputed immigration power based on the need for such things as protection of the United States’ territory, foreign affairs, and sovereignty within its jurisdiction. Because it is an almost plenary power, the federal courts defer much to Congress, and are hesitant to review its use of power.

Congress promulgated the current code on immigration in the mid-20th century, with subsequent revision through various acts. For the purposes of this discussion, the framework of the code bears directly on how LGBT family members are affected by U.S. policy against recognition of their relationship status. The Immigration and Nationality Act is structured in such a way as to confer preferential status upon family members, for the purposes of family reunification. For non-citizens who are not subject to the numerical limitations imposed by statute, INA § 201 states that non-citizens may immigrate as an immediate relative of a U.S. citizen. In the context of marriage, §201(b) states that in order for a spouse to immigrate to the U.S., he or she must have a valid and subsisting marriage with the U.S. citizen. § 201(c) applies the numerically limited categories for family-sponsored preferences, including marriages to lawful permanent residents.

Though the § 201 and hypothetically poses little problem for LGBT families supporting their members in a non-marriage setting. However, when an LGBT couple desires to have their status recognized for the purposes of conferring immigration benefits on the non-citizen, and to further the purpose of family reunification, federal case law and DOMA thwart any such efforts. For instance, in 1982, the Ninth Circuit Court of Appeals in Adams v. Howerton, excluded homosexuals the definition of marriage stated in Immigration and Nationality Act §101. In that case, a male U.S. citizen and his non-citizen partner obtained a marriage license for the country clerk and were married by a minister. The citizen spouse (Adams), petitioned the I.N.S. for classification of his spouse (Sullivan) as an immediate relative of an American citizen (currently §201). The petition was denied, and the Board of Immigration Appeals affirmed the denial on appeal. On denial, the Los Angeles district office stated: “You have failed to establish that a bona fide marital relationship can exist between two faggots.” The United States Supreme Court denied certiorari in Adams; however, when it did review a discrimination case, in Nguyen v. I.N.S., it allowed gender discrimination, where different rules applies to children born “out-of-wedlock” to male or female U.S. citizens, because Congress had an alleged, facially legitimate purpose for the different standard.

The law as it stands, Post-DOMA, is a contradiction, because it stands opposed to the U.S. policy for family reunification in the immigration context. If the immigration policy is one of family reunification (implicit in the statutory framework, and explicit in subsequent acts), then thwarting LGBT families from unification in by prohibiting the recognition of LGBT marriages is an obstruction on the policy’s goal. Even without the Adams ruling, DOMA prohibits recognition of LGBT families in the marriage context, which must be enforced by the executive (and thus administrative agencies), even if the Obama administration refuses to defend the policy in the courts. The most palpable consequences are seen in the context of current litigation involving LGBT families attempting to unify. For example, Hamdi Lui and Michael Ernest Roberts, a same-sex couple married in Massachusetts, but living in California, has recently brought a case aimed at keeping Lui (a citizen of Indonesia) in the country and keeping the couple together. In July of this year (2012), Lambda Legal filed an amicus brief in a case involving a married bi-national lesbian couple from Queens, New York, stating that the proceeding should be put on hold until DOMA is resolved. This contradiction has real effects, shows discrimination on the part of the government, and is an unfortunate occurrence for a country such as ours.


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20 Oct




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