By Bill Hutchinson
Before she was handcuffed in her home and taken to a prison cell on federal charges last year, Shirley Tan was a suburban California housewife with twin sons and a mortgage.
Immigration agents had discovered that Tan, who came to the U.S. from the Philippines 25 years ago, lacked the necessary documents for legal residency in the country.
Typically, bi-national spouses can apply for expedited visas, and eventually green cards, with sponsorship from their American-born partners.
Shirley Tan, though, is not typical. Her spouse of two decades, U.S. native Jay Mercado, is also a woman, which in the eyes of federal immigration gives the couple no protection whatsoever from forced separation.
Discrimination against homosexuals by federal immigration policy has a long and disturbing history.
Under Congressional U.S. immigration acts1 of 1917 and 1952, Public Health Service policy defining gays and lesbians as “mentally defective” permitted the exclusion of gay foreign nationals from the U.S.
In 1965, Section 212 (a)(4) of the Immigration and Nationality Act further strengthened the law by specifically defining “sexual deviation” as grounds for denying prospective immigrants entry into the United States.2
It was not until a quarter century later that the Immigration Act of 1990 eliminated sexual orientation as a reason for barring visitors to the U.S.3
With this important milestone, gay rights organizations such as Lambda Legal Defense and Education Fund – founded in 1971 but denied legal non-profit status by New York State Courts until 1973 – began lobbying vigorously to expand gay rights under immigration law, including the right to sponsor a partner for a residency visa or green card.4
The Issue is Marriage
Inextricably bound to the immigration debate, the issue of gay marriage began to emerge in the 1990s.
In 1991, in the first judicial challenge of its kind, Hawaii resident Nina Baehr sued the state over its refusal to allow her to marry a female partner. Two years later, the Hawaii Supreme Court ruled in Baehr’s favor, calling that refusal an unconstitutional form of sexual discrimination.5
The Baehr victory sparked efforts in other states to grant gay domestic partners the right to marry – inevitably granting immigration rights to bi-national couples – social conservatives and religious groups organized around a measure that would legally define marriage as a contract exclusively between a man and a woman.
Introduced in 1996 by then-Georgia Representative Bob Barr, the so-called Defense of Marriage Act swiftly gained overwhelming approval in both house of Congress and was signed into law (No. 104-199, 110 Stat. 2419) by President Bill Clinton.6
As stated by its supporters, DOMA was intended to “make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.
“The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony."Murphy v. Ramsey, 114 U.S. 15, 45 (1985).”7
In addition, DOMA grants to individual states the right to define marriage as their legislatures choose, with no requirement that they recognize same-sex marriages enacted in other states.
Directly pertinent to immigration issues for bi-national couples, DOMA goes on to say: “The United States federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.”
The DOMA Effect
In the aftermath of DOMA, 38 states have enacted their own laws prohibiting same-sex marriage, among them Hawaii.8
In many of those states – including Hawaii, again – constitutional challenges to those laws remain stalled at some level of the judicial process.
In California, Shirley Tan and Jay Mercado were legally allowed to marry in 2008 after a high court ruling negated the state’s constitutional ban on same-sex marriages (43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384).
That same year, however, a state referendum passed “Proposition 8,” technically Section 7.5 of the Declaration of Rights in the California Constitution, which bans marriage between individuals of the same gender. U.S. District Court Judge Vaughan R. Walker overturned Proposition 8 in August 2010.9
The case, like dozens of others in the states that explicitly deny marriage rights to same-sex couples, remains in judicial limbo pending appeal.
As does Shirley Tan.
Last-minute intercession by California Senator Diane Feinstein kept Tan from being deported from the United States, but only until the end of 2010.10
Beyond that, as Tan told a Senate hearing in June 2009, “Jay and I know that our family is still at great risk of separation.”11
The Option of Asylum
Shirley Tan and Jay Mercado are among 36,000 bi-national LGBT couples living with uncertain immigration status in the U.S., as estimated by The Williams Institute at the University of California-Los Angeles.12
Nearly one-third of those 36,000 couples are raising young children.
“Because of our discriminatory immigration laws, families are faced with the very real choice between separating children from one of their parents or leaving the only country those children have ever known as their home,” said Steve Rails of the Immigration Equality Action Fund, the oldest and most influential organization of its kind, in an e-mail interview.
Lacking the immigration protections granted to male-female partnerships, some gay couples try to stay together by seeking legal asylum for the foreign-national partner.
Authorized by Attorney General Janet Reno in 1994, Federal Order 1895-94 states that "an individual who has been identified as homosexual and persecuted by his or her government for that reason alone may be eligible for relief under the refugee laws on the basis of persecution because of membership in a social group."13
“Every year the number of (these) cases grows,” said Shannon Minter, legal director of the National Center for Lesbian Rights, noting that 2010 has been “particularly intense.”14
Gay or straight, anyone petitioning for asylum in the U.S. faces tough odds. Every year, some 46,000 foreign nationals seek asylum in the U.S. More than one-third of those appeals are rejected.15
There is no way to know how many of those granted asylum have been gay. U.S. immigration –- officially, the Bureau of Citizenship and Immigration Service of the Department of Homeland Security -- does not collect information based on sexual preference.
According to some estimates, however, the number of gay applicants who have successfully sought asylum in the U.S. in the last 20 years is probably fewer than 1,000.16
Proving discrimination on the basis of sexual preference is notoriously difficult in the United States.
Explained Rachel B. Tiven, executive director of Immigration Equality, "You must be able to convince the immigration judge you are who you say you are."17
"Sexual-preference asylum is a big issue because there is no way of verifying these claims," according to Dan Stein, president of the Federation for American Immigration Reform.18
In addition to proving their sexuality, asylum candidates must also demonstrate that conditions in his or her own country are extreme enough to warrant a fear of physical danger.
Even in countries where violence against gay men and women has been widely reported, however, immigration officials do not always acknowledge a threat.
“There is lots of documentation of violence [in Jamaica] toward the lesbian, gay, bisexual, and trans-gendered community," said Caitlin Barry, staff attorney at Nationalities Service Center in Philadelphia.19
“There’s also a lot of documentation of the government's inability or desire to protect these individuals," she said.
Shirley Tan’s original 1995 appeal for asylum included evidence that her life would be in danger in the Philippines from the man who had murdered her parents. She was rejected.20
Seeking Haven Outside the U.S.
Federal immigration agents detain more than 200,000 men, women and children every year.21
Some are discovered when they travel or apply to college or for a job, at routine traffic stops, or during immigration sweeps of workplaces.
Sometimes, the end comes with a knock at the door, as it did for Shirley Tan and Jay Mercado, who had just finished dinner with their children when agents arrived at their home.
Involuntary deportation means a period of exclusion from the U.S. for a foreign national caught with improper documents. Sometimes, the individual may be denied re-entrance permanently.
Rather than endure the constant pressure of uncertainty, many LGBT individuals return to their home countries voluntarily.
“Those who are forced to return to their home country often face being forced to return to the closet as well,” said Steve Rails of Immigration Equality.
Other gay couples leave the U.S. together for one of at least 25 nations that grant immigration benefits to same-sex couples, including Australia, Great Britain and the 15 European members of the Schengen Visa pact.22
Canada goes so far as to explicitly offer safe haven to gay couples who cannot live together legally in the U.S. or elsewhere – even when neither member of the couple is a Canadian citizen.
Under Canadian law, "The separation of common-law or same sex partners who reside together in a genuine conjugal-like relationship is grounds for [humanitarian and compassionate] consideration."23
Immigration Equality recently worked with an American-Indonesian couple who were torn apart after the Indonesian partner’s US work visa expired.24
They have both been accepted by the Canadian government, and are preparing to reunite there later in the year.
DOMA Under Attack
At present, the closest thing to a foolproof way for gay foreign nationals to be able to live in the U.S. is to buy their way in. A minimum business investment of $500,000 will gain an individual special consideration.25
But serious efforts are underway in Congress to repeal DOMA, and thus eliminate the federal roadblock that prevents all gay and lesbian bi-national couples from equal rights under immigration law.26
President Barack Obama and outgoing Speaker of the House Nancy Pelosi are among those on record in favor of repeal, as is now former Georgia Congressman Bob Barr, the man who proposed it.27
Ironically, in 2009, The Department of Justice under President Obama defended DOMA in the case of Smelt vs. United States, claiming a duty to do so under its constitutional responsibility to defend federal laws – the same basis on which the DOJ has defended “Don’t Ask Don’t Tell,” the military restriction on service by gays and lesbians that the President has also asked to be repealed.
The recent election of traditional right-wing conservatives and new-style “Tea Party” candidates to a majority in the House of Representatives, however, means the new Congress is not likely to be sympathetically disposed toward gay-rights issues.
Among the opposition is Georgia Rep. Paul Broun, present holder of Bob Barr’s legislative seat, who recently wrote on his Website of his plans to vigorously oppose any attempt to repeal DOMA.28
“DOMA was signed into law 13 years ago by a Democratic President because lawmakers began to see the assault on traditional marriage,” said Broun. “Over a decade later, traditional marriage – a principle tenant in our Judeo-Christian values - is under assault more than ever before.”
Prospects also seem less bright than a year ago for passage of the Uniting American Families Act (S.424), which expressly grants equal visa consideration for gay and lesbian domestic partnerships. (A second bill, Reuniting Families Act, H.R. 2709, seeks the same purpose and contains the UAFA in Section 2.)29
Roughly 150 legislative co-sponsors and President Obama, among others, have by now endorsed UAFA/RFA, and supporters claim to be optimistic.
“The list of organizations – including faith and immigrant groups – who support an inclusive immigration effort is long and diverse,” noted Steve Rails of the Immigration Equality Action Fund.
“To date, there has not been a single lawmaker, from either party, who has said he or she would oppose a comprehensive immigration reform bill simply because UAFA and LGBT families are included.”
But both bills remain blocked in the committee procedures of their respective houses -- SR. 424 in the Senate Judiciary Committee, the House bill in the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.30
Privately, gay leaders express concern that the current national push for some sort of immigration reform will result in legislation that “throws us under the bus -- again,” in the words of one attorney active in gay immigration issues.31
Some leading proponents of immigration reform say that special provisions for gay partnerships would doom any comprehensive change in federal immigration policy.
“Immigration is hard enough without adding same-sex marriage to the mix,” Kevin Appleby of the U.S. Conference of Catholic Bishops, has said.32
“It introduces a new controversial element to the issue which will divide the faith community and further jeopardize chances for a fair and bipartisan compromise [on immigration reform]," Appleby told a reporter last year.
The Judicial Approach
With increased political opposition to UAFA/RAF likely when the new Congress convenes in January, proponents of immigration rights for bi-national gay couples are looking to the courts for action.
Some legal experts believe that current immigration policy against gays is a violation of the due process clause of the U.S. Constitution’s 5th Amendment, forbidding denial of life, liberty or property without opportunity of appeal.
Others maintain that the Defense of Marriage Act violates international law prohibiting discrimination and other human rights violations based on sexual orientation grounds. (Articles 2 and 26 of the International Covenant on Civil and Political Rights, United Nations Human Rights Committee, Toonen v. Australia, 1994.)
Still others contend that DOMA’s restrictions on marriage between partners of the same sex violates the “equal protection: clause of the Constitution’s 14th Amendment.33
DOMA may be most vulnerable to legal challenge in what many see as its violation of the “Full Faith and Credit” clause of Article IV, Section 1, of the U.S. Constitution.
“Full Faith and Credit” stipulates that the laws of one state must be respected with “full faith and credit” by other states.34
Thus, the right of same-sex marriage in Massachusetts, Connecticut, New Hampshire, Iowa and Vermont, at present the only states where it is legally sanctioned (plus the District of Columbia), means that the rest of the Union must respect the marriages as well, thereby rendering DOMA moot.
In the first court challenges to DOMA on Constitutional grounds, judges rejected the position of the plaintiffs (In re: Kandu, 315 B.R. 123, 138 (Bankr. D. Wash. 2004) and Wilson v. Ake 18 FLW Fed D 175 (2005))
In 2009, however, the U.S. Court of Appeals for the 9th Circuit in California ruled in favor of a plaintiff in an employment discrimination suit and declared DOMA unconstitutional.35
Just this year, the Massachusetts Supreme Court also ruled DOMA unconstitutional in two milestone cases: Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Health and Human Services.36
The Last Mile
There are now five different legal challenges to DOMA that have reached the federal-court level with some degree of success for gay and/or lesbian plaintiffs.37
None of these cases deals specifically with immigration issues, but a successful outcome in any one of them would end the federal government’s ability to deny gay and lesbian couples equal consideration under immigration law.
That one or more of these cases will reach the U.S. Supreme Court is believed all but inevitable. So far, the nation’s highest court has declined to review issues relating to DOMA – and the justices alone can decide when, even whether, to consider the DOMA challenges.38
How the Court might react to the issue of DOMA’s constitutionality is an open question.
Many believe that the Court will have no choice but to strike down DOMA on any one of several Constitutional grounds.
Legal scholar Kent Greenfield has written: “When it gets to the Supreme Court, if the Court is consistent with its previous statements about family law being out of bounds for the federal government to regulate, then DOMA should lose.”39
On the other hands, social conservatives and religious groups are already mobilizing to find ways to circumvent a possible repeal by the Supreme Court.40
There is evidence of renewed support for a re-introduction of the Federal Marriage Amendment to the Constitution, which failed House and Senate votes in 2006.41
There is also the new, more conservative make-up of the House of Representatives, where 290 votes are needed for passage. Republicans, who have consistently and overwhelmingly supported DOMA, will control 240 seats in the new Congress.
Any additional actions that Congress might take to ban gay marriage – and thus spousal rights for bi-national gay couples – will lead to additional court challenges and more appeals, in a cycle that could take a number of years to finally resolve.
In the meantime, Shirley Tan and Jay Mercado, like 36,000 other American couples, wait for the knock at the door.