BROOKLYN (CN) – Five gay and lesbian bi-national married couples claim in Federal Court that the Defense of Marriage Act unconstitutionally denies foreign spouses the right to become U.S. citizens, because of their sexual orientation.
Five same-sex couples sued Attorney General Eric Holder Jr. and Homeland Security Secretary Janet Napolitano. Also named as defendants are U.S. Citizenship and Immigration Services Director Alejandro Mayorkas, USCIS National Benefits Center Director Robert Cowan, and USCIS Vermont Service Center Director Daniel Renaud.
“Plaintiffs are five committed, loving couples, lawfully married by the government of South Africa and the States of Vermont, Connecticut, and New York,” the complaint states. “In each couple, one spouse is an American citizen and the other spouse a foreign national. If they were different-sex couples, the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse and place the foreign spouse on the path to lawful permanent resident and citizenship. Solely because of DOMA and its unlawful discrimination against same-sex couple, however, these plaintiffs are being denied the immigration rights afforded to other similarly situated bi-national couple. This is an action to remedy that hateful, harmful, and unlawful discrimination.”
The plaintiffs claims the Defense of Marriage Act, enacted in 1996 “creates, for the first time in our nation’s history, a federal definition of marriage that excludes same-sex couples. While DOMA is not an immigration statute, its restrictive definition of marriage affects over 1,000 federal laws, including laws relating to immigration. …
The discriminatory impact of DOMA is particularly acute in the immigration context. For immigration purposes, whether the federal government recognizes a couple’s marriage can determine whether a family may remain in the United States and live together, or may be torn apart.”
The plaintiffs say the issue affects “thousands of other bi-national couples in this country. But the federal government also has set the preservation of families as a national priority.” That is why immigration law allows the naturalization of foreign spouses, the plaintiffs say. “There is no annual limit on the number of visas available to foreign national spouses of American citizens. As a nation, we want to keep families together, not rip them apart.”
But the plaintiff say, “Ironically, it is the federal government that threatens to tear bi-national families apart. Because of DOMA, the federal government does not recognize the marriages of same-sex couples and, therefore, denies them the immigration rights afforded to other married couples. As a result, these couples live their lives at constant risk of separation.
“As described below, the five plaintiff couples are like other married couples. They met, fell in love, and chose to build a life together. They too committed themselves to one another in good times and in bad, in sickness and in health. They have honored and kept that commitment to one another. They have chosen to be together and to make the United States their family’s home. However, because they are married to someone of the same sex, they are denied the federal immigration benefits to which different-sex married couples are entitled. They are at constant risk of being forced apart or forced to leave the United States to stay together.”
The plaintiffs ask the court to declare DOMA unconstitutional and enjoin the defendants from continuing to discriminate against them. And they want the court to compel the USCIS to approve the foreign spouses’ immigration petitions.
They are represented by Eric Stone, with Paul, Weiss, Rifkind, Wharton & Garrison.