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

Immigration agents had discovered that Tan, who came to the U.S. from the Philippines 25 years ago, lacked the necessary documents for legal residency in the country.

Typically, bi-national spouses can apply for expedited visas, and eventually green cards, with sponsorship from their American-born partners.

Shirley Tan, though, is not typical. Her spouse of two decades, U.S. native Jay Mercado, is also a woman, which in the eyes of federal immigration gives the couple no protection whatsoever from forced separation.

Early Prohibitions

Discrimination against homosexuals by federal immigration policy has a long and disturbing history.

Under Congressional U.S. immigration acts¹ of 1917 and 1952, Public Health Service policy defining gays and lesbians as “mentally defective” permitted the exclusion of gay foreign nationals from the U.S.

In 1965, Section 212 (a)(4) of the Immigration and Nationality Act further strengthened the law by specifically defining “sexual deviation” as grounds for denying prospective immigrants entry into the United States.²

It was not until a quarter century later that the Immigration Act of 1990 eliminated sexual orientation as a reason for barring visitors to the U.S.³

With this important milestone, gay rights organizations such as Lambda Legal Defense and Education Fund – founded in 1971 but denied legal non-profit status by New York State Courts until 1973 – began lobbying vigorously to expand gay rights under immigration law, including the right to sponsor a partner for a residency visa or green card.⁴

The Issue is Marriage

Inextricably bound to the immigration debate, the issue of gay marriage began to emerge in the 1990s.

In 1991, in the first judicial challenge of its kind, Hawaii resident Nina Baehr sued the state over its refusal to allow her to marry a female partner. Two years later, the Hawaii Supreme Court ruled in Baehr’s favor, calling that refusal an unconstitutional form of sexual discrimination.⁵

Introduced in 1996 by then-Georgia Representative Bob Barr, the so-called Defense of Marriage Act swiftly gained overwhelming approval in both house of Congress and was signed into law (No. 104-199, 110 Stat. 2419) by President Bill Clinton.⁶

As stated by its supporters, DOMA was intended to “make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.

“The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony."Murphy v. Ramsey, 114 U.S. 15, 45 (1985).”⁷

In addition, DOMA grants to individual states the right to define marriage as their legislatures choose, with no requirement that they recognize same-sex marriages enacted in other states.

Directly pertinent to immigration issues for bi-national couples, DOMA goes on to say: “The United States federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.”

The DOMA Effect

In the aftermath of DOMA, 38 states have enacted their own laws prohibiting same-sex marriage, among them Hawaii.⁸

In many of those states – including Hawaii, again – constitutional challenges to those laws remain stalled at some level of the judicial process.

In California, Shirley Tan and Jay Mercado were legally allowed to marry in 2008 after a high court ruling negated the state’s constitutional ban on same-sex marriages (43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384).

That same year, however, a state referendum passed “Proposition 8,” technically Section 7.5 of the Declaration of Rights in the California Constitution, which bans marriage between individuals of the same gender. U.S. District Court Judge Vaughan R. Walker overturned Proposition 8 in August 2010.⁹

The case, like dozens of others in the states that explicitly deny marriage rights to same-sex couples, remains in judicial limbo pending appeal.

As does Shirley Tan.

Last-minute intercession by California Senator Diane Feinstein kept Tan from being deported from the United States, but only until the end of 2010.¹⁰
 
Beyond that, as Tan told a Senate hearing in June 2009, “Jay and I know that our family is still at great risk of separation.”¹¹

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8. http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States

1 Response to “US Visa Discrimination against Gays and Lesbians”

DOMA’s influence on US immigration policy only encourages immigration fraud and illegal residency by LGBT spouses and partners desperate to be united with their families. People living like Shirley Tan are most likely numerous and difficult to quantify. LGBT activists and legislators who support same-sex marriage and partnerships are not yet ready to tackle immigration. Rendering DOMA ineffective should be the first priority for those ready to see the US take a modern stance on marriage laws at the state and federal levels. Without DOMA, the US Supreme Court will be forced to take a fresh look at same-sex marriage.

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