legal question about gay marriage and immigration

[LurkerSpeaks]

I have a question...If a gay man lives in a state without legalized gay marriage, could he get married to a man of Mexican nationality in one of the states that marry non-residents and thereby grant his husband legal status to be in the US??

[MsGuy]

Immigration issues are governed by Federal law. I think DOMA prohibits recognition of state authorized gay marriages for any purpose. I haven't researched this, but I'm reasonably sure the marriage would be a nullity for the purpose of changing the spouse's immigration status.

 

A few weeks ago, the mayor of some small Texas city resigned and moved to Mexico to be with his deported lover. I suspect that if a quick trip to New Hampshire would have solved the problem, he'd still be mayor.

[Guest]

Not only does gay marriage not help the partner's immigration status, it makes matters worse in that regard. If immigration officials get wind of a gay marriage, the foreign partner will be subject to immediate deportation proceedings, because the gay marriage demonstrates a fairly unequivocal intention to overstay the visa. If the partner comes from a country where gays are persecuted (and Mexico is NOT one of those countries), and he arrived in the U.S. less than a year ago, he might have a case for asylum (ask an immigration lawyer). In no case should an American marry a foreigner of the same gender until said foreigner has been granted permanent residence in the U.S. (asylum, refugee status, or permanent resident status). Not only will the foreigner be deported, he will no longer be admissible in the U.S. even under the visa waiver program for, say, E.U. citizens, Canadians, or the Swiss. For more information, contact:

http://www.immigrationequality.org

They also accept donations, since there are efforts underway to correct this through federal legislation (Uniting American Families Act). FYI, I was able to get asylum for my partner, since he comes from a country where gays are persecuted (Russia). Once one gets asylum, one can only leave the country with Refugee Travel Documents, since one can no longer obtain passports from one's country of origin, and one can no longer travel to the country from which one was granted asylum for any reason, even if one's mother is dying of cancer. We have traveled to Europe, Mexico, and Canada with said documents, however. He'll be eligible for U.S. citizenship/passport in about 3 years.

[Rick Munroe]

I think DOMA prohibits recognition of state authorized gay marriages for any purpose.

 

And our "Fierce Advocate" President just "fiercely" defended DOMA, even going so far as to say that gay marriage is the same as incest, and that depriving us of our rights saves the government money.

[imrthr]

Misquote?

 

"even going so far as to say that gay marriage is the same as incest, and that depriving us of our rights saves the government money."

 

You don't really think he said that, do you?

[MsGuy]

Obama's Solicitor General's office filed a brief to the Supreme Court that argued that DOMA met the "rational government interest" test under the equal protection clause because recognizing gay marriage would cost the Treasury money (provisions exist in income tax code and social security regulations favoring married people.) The Supreme Court declined to hear the case.

 

Although I haven't read the briefs, the incest bit sounds doubtful to me. I have a feeling that the incest argument was taken from Justice Scalia's dissents in the two landmark gay equal protection cases. Neither of his dissents make much effort to disguise his homophobia.

__________

 

Unicorn's post reads like a man who knows what he's talking about. Listen to him. I'm no expert on immigration law but several of the details of his post tally with INS regulations and procedures I am familiar with. Unfortunately immigation law is highly technical. There's a shortage of quailfied lawyers in this field and consequently their fees are damned stiff.

[uwsman2]

Inaccuracies

 

This is like the old game of telephone - by the time a legal story gets to this site, it is distorted beyond recognition.

 

The brief in question was NOT filed by the Solicitor General's office with the Supreme Court, as asserted in the prior post. It is a brief by the Civil Division, filed in a lawsuit brought by a married gay couple in Southern California. The lawsuit contends that DOMA is unconstitutional. The brief asks the court to dismiss the case on three grounds: lack of jurisdiction, lack of individual standing, lack of a valid legal theory. All the uproar in the gay blogosphere surrounds the third of these points, in which the brief, written by a career attorney (not an Obama appointee), contends that the legal arguments put forth in the complaint should fail under existing law that binds the federal district court. (Federal district courts cannot overturn existing precedents, which can only be overturned by appellate courts.)

 

In the course of making that argument, the brief points out that under established federal law, states are free to refuse to recognize marriages from other states on grounds of public policy, and cites some prior state court decisions as examples. Two of the cases that they cite as examples are cases in which the marriages involved people closely enough related to each other that their marriage would violate the laws of the state in which recognition was sought, although not the state in which the marriage was contracted. (The states vary, for example, on whether they will allow first cousins to marry, or uncles to marry nieces and aunts to marry nephews.) The brief never compares same-sex relationships to incest - that would be stupid - it merely points out that states have always retained the right to refuse to recognize marriages from other states on policy grounds.

 

From the citation of these few cases, gay bloggers have inferred that Obama equates gay relationships to incest. That is totally unfair and reflects ignorance about how legal arguments are made.

 

The brief is offensive on other grounds, however. It says that DOMA is "neutral" on the subject of same-sex marriage, and that Congress has a legitimate interest in protecting taxpayers from states that forbid same-sex marriages from having to pay for benefits to same-sex couples who are married in other states. That's nonsense. Gay people pay taxes too. If Congress decided to be "neutral" on the controversial subject of interracial marriage by providing that federal marriage benefits go only to same-race marriages, nobody would argue with a "straight face" that this was not discriminatory. It's the analogous situation, although it couldn't take place today because of a 1967 Supreme Court ruling striking down laws against mixed-race marriages.

 

Ultimately, the brief argues some points of law that are very debatable, and makes arguments that are clearly and rightly regarded as offensive to gay people, but to state "Obama equates gay relationships with incest" is itself a stretch and offensive. I doubt Obama had any knowledge about this brief before it was filed - the Justice Department files dozens of briefs in courts all around the country every day, and nobody above the level of the office where they are written sees them before they are filed.

 

I blame the supervisors in the Civil Division who fail to ensure that briefs on subjects of political sensitivity are not adequately vetted. They could have made solid legal arguments to dismiss this case without making dubious, offensive arguments. And of course the buck stops with Obama since he's the head of the executive branch. But let's not get carried away....