The Impact (or Lack Therof) of California’s Same Sex Marriage Case on Gay Men and Lesbians

J Craig Fong, one of the managing partners of Fong & Chun, LLP is a Los Angeles immigration law firm, wrote this note about how the same-sex marriage case in California has affected (or failed to affect) the lives of gay men and lesbian immigrants.

DEFENSE OF MARRIAGE ACT (DOMA) PROHIBITS FEDERAL BENEFITS.

As has been mentioned by me and others in response to California same-sex marriage questions, a same-sex marriage in California (or from any other jurisdiction, for that matter) is not recognized for purposes of Federal law or Federal benefits, including immigration benefits. Not only does this include I-130 Family Petitions for alien spouses, but I suspect it also includes spouse-as-dependent on an I-140 or some other application, recognition of the relationship for qualifying relatives in a waiver of ground of inadmissibility, or in a cancellation of removal context. The statutory culprit here is the Federal Defense of Marriage Act. 1 USCA §7. UNITING AMERICAN FAMILIES ACT (UAFA). The UAFA (H.R. 2221) would permit the recognition for immigration purposes of domestic partners who can demonstrate being in a committed same-sex relationship for a specified period of time — two years is the number typically suggested. This bill is regularly introduced in Congress. Its former incarnation was the Permanent Partners Immigration Act (PPIA). It has never yet left committee. Many believe that a change in party in power in the White House and stronger Democratic majorities in the Congress could see this enacted. It is not yet law, however.

TRANSGENDER MARRIAGES.

This issue is not the troublesome issue it was at the beginning of the Bush-41 Administration. In essence, USCIS will examine the marriage from the point of view of the post-operative condition of the party at issue. As long as the parties to the marriage are, as a result of gender reassignment surgery, of OPPOSITE physical configurations (that is, male-female), USCIS will view the marriage as an opposite-sex marriage, and immigration benefits can be granted.

LITIGATION BASED ON EQUAL PROTECTION–DON’T DO IT!!!

I must here part company with some suggestions that I-130 Family Petitions should be filed now, letting them percolate upwards through the appellate system, so that eventually an Equal Protection argument can be made the the Supreme Court of the United States. I strongly disagree with this strategem. First, please remember that Federal courts give great deference to Congress’ plenary power over the issue of immigration. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 96 L.Ed. 586 (1952) Although there might be some sort of due process argument, and subject to constitutional limitation on the exercise of that plenary power, The Chinese Exclusion Case, 130 U.S. 581, 604, 9 S.Ct. 623, 32 L.Ed. 1068 (1889), Congress could ask all prospective immigrants to stand on their heads and whistle The Stars and Stripes Forever at their green card interviews, and courts could sustain the requirement. So: the fact that the Congress has spoken, and that the Defense of Marriage Act includes denying green cards to same-sex marriages, the immigration context seems to me a bad place to start any challenge against DOMA. Second, the mavens of the gay and lesbian rights movement have regularly requested the bar to refrain from challenges to DOMA in the current legal/political environment. The more ideal place to challenge DOMA would be for taxation, inheritance, veterans’ benefits, or social security benefits issues. These issues do not involve Congress’ plenary immigration power and would thus yield us initial places where we will have already chipped DOMA’s armour. If we make the first challenge an immigration challenge, not only is it likely we would lose, but it could set back any possible challenge to DOMA in other fields of law. Third: outside the realm of Federal Law, please remember that In re: Marriage Cases did something quite remarkable — it made sexuality (that is, being gay or lesbian) a suspect class. This is arguably BIGGER than legalizing same-sex marriage. This rendition by the Supreme Court of California gives us incredible potential to challenge out-of-state marriages (say, from Massachusetts or from Canada) for recognition in California. It also provides interesting conflicts of law possibilities in jurisdictions outside California. It also raises an interesting question. Quaere: if Proposition 8 passes, and marriage is defined evermore in California as being a union of one man and one woman, what then happens when a gay or lesbian couple says, “why are straight people allowed the word ‘marriage’ while we gay men and lesbians must be satisfied with the phrase ‘civil union?'” Does this run the ironic risk of having a California court deem that, if gay men and lesbians are a suspect class, and if only straight couples can have the word marriage, then NO ONE may use the word marriage, and henceforth, all unions in the state of California will be denominated “civil unions?” It is a through the looking-glass possibility, but interesting. Lastly, making queers a protected class means that even if the November ballot initiative passes, it creates a real open question whether same-sex marriages or unions will vanish from the California scene. How can marriage be denied to queers by an initiative if queers are a protected class? Where and what is the compelling state interest?

— J Craig Fong Fong & Chun