DOMA and Immigration - a Worst Case Scenario
No one wants to see lesbian and gay couples treated fairly under U.S. immigration law more badly than I do. Every day, literally, every single day, we hear from families who are being torn apart, who have left the U.S. altogether, or who are living in fear because one of them is here without lawful status, all because the U.S. government does not allow Americans to sponsor lesbian and gay family members for immigration benefits. Real people are suffering real harm every day and it's unconscionable. No one wants to see the end of DOMA as it applies to immigration more than I do.
But what happens if an immigration DOMA challenge (especially a class action) fails?
While thinking about DOMA and its real-life consequences may be relatively new to many immigration practitioners, attorneys from the LGBT litigation organizations (Gay and Lesbian Advocates and Defenders, Lambda Legal, the American Civil Liberties Union, National Center for Lesbian Rights, and Immigration Equality) have been thinking about DOMA and formulating a strategy since the law was enacted 15 years ago. It is only through doing our homework and planning the most strategic cases, that we have gotten as far as we are today, with the DOJ announcing that it won't defend DOMA in federal challenges. Nevertheless, the Republican leaders of the House have stepped in, have hired the former Solicitor General under George W. Bush and are defending DOMA vigorously.
There have been two district court decisions in California this year which have applied Adams v. Howerton 673 F.2d 1036 (9th Cir. 1982) to immigration-DOMA challenges and dismissed the cases. If there is a Circuit level case, or worse, a class action, that rules on immigration as a "special area" that's different from the federal financial benefits which most of the other DOMA cases address, then even with a Supreme Court win in Gill et al. v. Office of Personnel Management et al or one of the other pending challenges, lesbian and gay immigrant families could be left out in the cold, with the only hope for change coming in the legislative realm.
At the time that DOMA was enacted, there was no marriage equality for lesbian and gay families anywhere in the United States. It was the Gay and Lesbian Advocates and Defenders who won the first victory with the Goodridge case in Massachusetts and it has been through the tireless work of the LGBT litigation groups in the courts and LGBT political groups pressing for local political change that we have achieved marriage equality in six states. (At the same time, a majority of states have enacted constitutional amendments or anti-marriage statutes.)
It is hard to be cautious when real people are suffering right now, but plunging into litigation that is not well thought out and well coordinated with existing litigation, could set back lesbian and gay immigrant families even as American families move forward.
Victoria Neilson is the Legal Director of Immigration Equality, a national organization fighting to end discrimination under U.S. immigration law towards LGBT immigrants and their families.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.