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The leading Copyright |
What Practitioners Should Know about Defending Lesbian and Gay Familiesby Victoria NeilsonIt is heartening to see the discrimination that gay and lesbian families face under U.S. immigration law finally receiving the attention it deserves - both in mainstream media and among immigration practitioners. For immigration lawyers in the trenches, the recent victories of the lesbian, gay, bisexual and transgender ("LGBT") rights movement, such as New York's recent marriage equality win, no doubt look miraculous compared to the anti-immigrant legislation sweeping much of the country. From an LGBT rights attorney's perspective, the February 23, 2011 announcement by the Department of Justice ("DOJ") that it would no longer defend the so-called Defense of Marriage Act ("DOMA") was truly historic: for the first time the federal government was proclaiming its belief that a federal law unfairly discriminated against lesbian and gay families and that courts should subject the law to heightened scrutiny. This sea change in the government position cannot be overstated. And yet, the remains much misunderstanding about what the DOJ announcement means. While DOJ will no longer defend DOMA litigation in court, this does not mean that DOMA will go undefended. Instead, the House Republicans, represented by former Bush Solicitor General Paul Clement, will defend the law, undoubtedly more aggressively than DOJ had been doing.
It is also crucial to remember that the tremendous gains in this area of the law have been the result of a coordinated strategy the LGBT rights groups (GLAD, Lambda Legal, the ACLU, NCLR) who have been immersed in these issues for decades. While it appears at the moment that marriage equality for lesbian and gay families has momentum, a couple of bad decisions by circuit courts could shift the momentum the other way.
This is an exciting time - it feels as if history is on our side. But we have not yet achieved full equality and the only way we can do so is by coordinating together carefully and strategically.
Victoria Neilson is the Legal Director of Immigration Equality, a national organization fighting for equal immigration rights for the lesbian, gay, bisexual, transgender and HIV-positive community. Ms. Neilson runs Immigration Equality’s pro bono asylum project and provides technical assistance and mentoring on LGBT and HIV immigration issues to attorneys around the country. She is the primary author of The LGBT/HIV Asylum Manual, a comprehensive guide for attorneys, and she has published extensively on legal issues facing LGBT and HIV-positive immigrants and refugees. Ms. Neilson received her law degree from the City University School of Law and her bachelor’s degree from Harvard University. Ms. Neilson is co-chair of the New York City Bar Association’s Committee on AIDS and an active member of the American Immigration Lawyers Association. She is the former Litigation Director at the HIV Law Project in New York.
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