US Visa Discrimination against Gays and Lesbians: A Long Road Finally Nearing the U.S. Supreme Court

by Bill Hutchinson

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17 November 2010

The Judicial Approach

With increased political opposition to UAFA/RAF likely when the new Congress convenes in January, proponents of immigration rights for bi-national gay couples are looking to the courts for action.

Some legal experts believe that current immigration policy against gays is a violation of the due process clause of the U.S. Constitution’s 5th Amendment, forbidding denial of life, liberty or property without opportunity of appeal.
Others maintain that the Defense of Marriage Act violates international law prohibiting discrimination and other human rights violations based on sexual orientation grounds. (Articles 2 and 26 of the International Covenant on Civil and Political Rights, United Nations Human Rights Committee, Toonen v. Australia, 1994.)

Still others contend that DOMA’s restrictions on marriage between partners of the same sex violates the “equal protection: clause of the Constitution’s 14th Amendment.³³

DOMA may be most vulnerable to legal challenge in what many see as its violation of the “Full Faith and Credit” clause of Article IV, Section 1, of the U.S. Constitution.

“Full Faith and Credit” stipulates that the laws of one state must be respected with “full faith and credit” by other states.³⁴

Thus, the right of same-sex marriage in Massachusetts, Connecticut, New Hampshire, Iowa and Vermont, at present the only states where it is legally sanctioned (plus the District of Columbia), means that the rest of the Union must respect the marriages as well, thereby rendering DOMA moot.

In the first court challenges to DOMA on Constitutional grounds, judges rejected the position of the plaintiffs (In re: Kandu[28], 315 B.R. 123, 138 (Bankr. D. Wash. 2004) and Wilson v. Ake 18 FLW Fed D 175 (2005))
In 2009, however, the U.S. Court of Appeals for the 9th Circuit in California ruled in favor of a plaintiff in an employment discrimination suit and declared DOMA unconstitutional.³⁵

Just this year, the Massachusetts Supreme Court also ruled DOMA unconstitutional in two milestone cases: Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Health and Human Services.³⁶

The Last Mile

There are now five different legal challenges to DOMA that have reached the federal-court level with some degree of success for gay and/or lesbian plaintiffs.³⁷

None of these cases deals specifically with immigration issues, but a successful outcome in any one of them would end the federal government’s ability to deny gay and lesbian couples equal consideration under immigration law.

That one or more of these cases will reach the U.S. Supreme Court is believed all but inevitable. So far, the nation’s highest court has declined to review issues relating to DOMA – and the justices alone can decide when, even whether, to consider the DOMA challenges.³⁸

How the Court might react to the issue of DOMA’s constitutionality is an open question.

Many believe that the Court will have no choice but to strike down DOMA on any one of several Constitutional grounds.

Legal scholar Kent Greenfield has written: “When it gets to the Supreme Court, if the Court is consistent with its previous statements about family law being out of bounds for the federal government to regulate, then DOMA should lose.”³⁹

On the other hands, social conservatives and religious groups are already mobilizing to find ways to circumvent a possible repeal by the Supreme Court.⁴⁰

There is evidence of renewed support for a re-introduction of the Federal Marriage Amendment to the Constitution, which failed House and Senate votes in 2006.⁴¹

There is also the new, more conservative make-up of the House of Representatives, where 290 votes are needed for passage. Republicans, who have consistently and overwhelmingly supported DOMA, will control 240 seats in the new Congress.

Any additional actions that Congress might take to ban gay marriage – and thus spousal rights for bi-national gay couples – will lead to additional court challenges and more appeals, in a cycle that could take a number of years to finally resolve.

In the meantime, Shirley Tan and Jay Mercado, like 36,000 other American couples, wait for the knock at the door.

Related Articles and Documents:

The Uniting American Families Act: Hope for LGBT Bi-national Couples

Gay Suicides in the United States: Why not in Thailand?

Legal Rights of Transgenders and their Partners in Thailand

Transsexuals and Thai Law

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