DOMA Ruled Unconstitutional By Second Circuit Court of Appeals, Setting Up Final Showdown at the Supreme Court

Edie Windsor, DOMA Warrior

Statement by Lavi Soloway, co-founder, The DOMA Project:

Last week, in a 2-1 decision in the case of Windsor v. United States, the Second Circuit Court of Appeals ruled that the Defense of Marriage Act (DOMA) is unconstitutional because it violates the equal protection guarantee of the Fifth Amendment.  The Court’s decision was written by Dennis Jacobs, Chief Judge of the Second Circuit, a conservative jurist appointed to the bench by President George H. W. Bush in 1992.  The Second Circuit ruling is the 8th consecutive ruling striking down DOMA since July 2010, and it is the second such ruling from a federal court of appeals. (The First Circuit Court of Appeals ruled on May 31, 2012 that DOMA is unconstitutional.)

The ruling in Windsor is likely to be the last appeals court decision on DOMA before the U.S. Supreme Court announces later this year that it will formally agree to review the constitutionality of this law by accepting one or more challenges to DOMA now pending before the high court.

Importantly, the Second Circuit Court of Appeals not only found that DOMA was unconstitutional, it also determined that a heightened level of scrutiny must be applied to any law that discriminates against LGBT persons. That means, that in the Second Circuit, any provision of law that treats LGBT people unequally must be presumed to be unconstitutional. The Supreme Court may adopt the same standard when it takes up one or more of the pending challenges to DOMA next year (including Windsor) and decides the issue once and for all.

Last week’s victory over DOMA in the Second Circuit is historic, unprecedented and of such critical, far-reaching, potential legal significance that its full impact is hard to measure. But it is first and foremost a victory for an inspring, courageous, and determined DOMA Warrior, 83-year-old Edith (Edie) Windsor.

Edie and her wife, Thea Spyer, were married in Canada in 2007 after lmore than forty years together as a couple in New York. In 2009, when Thea passed away, the Internal Revenue Service, citing DOMA, denied recognition of their marriage and refused apply the marital deduction that protects surviving spouses from estate tax. Instead the IRS forced Edie to pay a $363,000 tax bill on Thea’s estate. Not only was she contending with the loss of her life-partner, but she was, in fact, being told that the life they had built together meant nothing to the government; to the IRS, it was as though it never happened. It is often so difficult for couples to quantify the heartache, the pain, and the hurt that a law like DOMA causes. Windsor v. United States leaves no question as to a very specific harm DOMA caused to Edie. Edie Windsor is not only a litigant, however; for years, she has demonstrated through her advocacy that our most powerful tools are the stories of our own lives. Edie’s belief that we must all be treated with dignity and respect was the reason for her lawsuit, and it is the reason that we, as binational couples, continue to fight DOMA by demanding nothing less, every day. What she accomplished in court last week is valuable to the LGBT movement in a way that defies any measure in dollars and cents.

As a grassroots campaign, The DOMA Project focuses on DOMA’s devastating impact on binational gay and lesbian couples who are denied access to green cards and all other vital family unification provisions of our immigration law, e.g. fiancé(e) visas, waivers for unlawful presence bars, stepchildren petitions, derivative non-immigrant status, status as spouses of refugees, spouses of green card lottery winners, etc. solely because of DOMA.  Each day that DOMA remains the law of the land, it forces gay couples couples into exile, separates couples from each other and from their children, and forces spouses and partners of U.S. citizens to remain in the United States without lawful immigration status, all with devastating effects not only on LGBT families and on our marriages, but also on our extended American families, our communities, our businesses, our friends and our own dreams for the future.

DOMA is tearing apart our families, and while every court ruling helps us build the foundation for its demise, we should not lose sight of the fact that federal courts are not the only, or even the primary forum, for our fight. We must keep up the momentum by continuing to focus our advocacy of the harmful consequences of DOMA, and on the policies that must be implemented now to counter those consequences. We cannot become complacent and simply trust that DOMA will ultimately be struck down by the U.S. Supreme Court. If we adopt such a passive approach, we are gambling, in a sense, with our marriages, our families and our futures. Instead, we must continue to help build a receptive climate for the powerful cases against DOMA by exposing the truth of what it is doing every day to our families. All of us can play a part if we choose to be a part of this fight to the finish line.  We all have too much at stake to simply sit back and watch events unfold.

Edie Windsor pictured with The DOMA Project co-founder, Lavi Soloway, and, Josh Vandiver, who, along with his husband Henri, was one of first and most high profile binational couples to take a leadership role in The DOMA Project.

The DOMA Project continues to work to empower binational couples and fight for immediate remedial policies to prevent the catastrophic, destructive impact DOMA is having on our families.

Like Edie Windsor, we will continue to fight for a federal government that no longer disrespects the love and commitment that same-sex couples have made to one another, where couples are no longer forced to choose between their love and their country, where LGBT families are not torn apart or forced into exile.

In his decision, Chief Judge Jacobs notes that the final decision on the constitutionality of DOMA, which discriminates against all same-sex couples by prohibiting the federal government from recognizing our marriages, “will have a considerable impact on many operations of the United States.”  Indeed, DOMA is not an abstraction; as the Windsor case reminds all, its consequences are devastating: our families are harmed every day by this law, often irreparably.  As such, while we celebrate every ruling as another nail in the coffin, we continue to fight to end the consequences of DOMA today.  There can be no waiting in the fight for full equality.  The slow and complex litigation will continue with a constant drumbeat of speculation as we near a final judicial resolution of DOMA, while tens of thousands of binational couples will struggle to make it through another day, trying to hold their marriages and their families together. As we celebrate last week’s tremendous victory, we cannot forget that there are remedies available to the government to protect and reunite all lesbian and gay binational couples and their families today. We will continue to fight to stop every deportation, separation and exile of binational couples.

Thea and Edie

To achieve immediate policy solutions it is important not to find oneself passively waiting for another court ruling, but rather to join other binational couples in active engagement and participation in our campaign. Over the the next eight months, our country will focus increasingly on this issue, and its expected resolution by the Supreme Court by June 2013.  But that should not become a distraction for binational couples eager to fight for immediate executive branch policies that will keep our families together now.

There is one court in which all of us dwell and that is the court of public opinion. We must continue to score victories in the court of public opinion in order to reach our goal of full equality. Edie has shown us how our own lived experiences, shared with a wide audience in compelling and personal terms, served to persuade of even the most conservative jurist. For her, and all the courageous men and women who have come before us and who have made our fight possible, let us never waver in our determination to achieve full equality.”

The DOMA Project Welcomes Our Summer Intern, Ethan Gil

 


Stop the Deportations, Separations, and Exile – The DOMA Project is happy to welcome our new summer intern


Ethan Gil is a graduate of Duke University and is currently a rising second-year law student at the University of Southern California Gould School of Law in Los Angeles.  Having immigrated to the United States from South Korea at the age of 6, Ethan draws inspiration from his personal experience, as well as his enduring advocacy for LGBT rights.

An undergraduate education in Political Theory jumpstarted Ethan’s interest in providing legal services to those underrepresented segments of the population who are most in need.  He hopes to direct his passionate idealism while working on The DOMA Project and contributing to the struggle for equality for the LGBT community.


 

 

FIGHTING TO STAY TOGETHER: Inger and Philippa Forced Apart by DOMA For Now, Brought Closer with Wedding Vows

Marrying in Iowa – April, 2012

In just a few days I will be forced to leave my wife, our child, and our home behind in the United States because our family isn’t recognized or respected under the Defense of Marriage Act (DOMA).  Last September, my family and I came to the conclusion that Inger and I needed to be legally married in the States. On April 3, 2012 we drove from our home state to Iowa (the closest marriage equality state) and tie the knot. We chose April 3rd because it is the anniversary of our first commitment ceremony three years ago.

I confess I was scared stiff of getting married, like anyone would be.  But deep down I had no doubt that it was right choice for my beautiful wife and me. I wanted our family to have the stability that a legal marriage provides, and that society provides for legal spouses. But I know that, at the federal level, our marriage does not mean we are any closer to being together permanently because of DOMA and current U.S. immigration laws.  But for me it makes all the difference on an emotional level.  It means everything to my family, that Inger and I are married, not “married”, and that we are legally recognized as one another’s wife.

Kissing the Bride

The folks in Story County, Iowa were absolutely amazing on our big day. There was no hint of disapproval or judgment. We both walked in wearing political t-shirts (“Some chicks marry chicks. Get over it.“) and collected the paperwork we needed to get hitched. When we returned later that day after the ceremony, they couldn’t have been more complimentary and well wishing to us.

So a big thank you, from my whole family, to everyone who helped us that day in Story County. Also a big thanks to our friend April, who arranged everything for us, to Gary, who saved us when we needed a second witness, and to Homie, for performing the ceremony and providing the beautiful scenic location.

Our marriage has truly changed the way I feel about so much in just a few days. Even though leaving so soon breaks me in two, I felt so fortunate to have seen my wife happier than I have ever seen before. The joy in her eyes means everything to me. I know that this was the right decision for our family, and I am more motivated than ever to tell the world about how much my family deserves basic equal respect

Us in front of the Story County, Iowa Registrar’s Office

The timing of this trip was not just about us getting married. It was also about Easter and our daughter’s birthday. Turning 12 is a big deal and I was happy to be there for her big day. I know there will be more special days, but an unjust law should never be allowed to deny me those moments.

On a bittersweet note, when we booked the flights we didn’t know the dates of our daughter’s spring show. It turns out that her big performance is two days after I leave. I have not been able to see her perform in person once in the last four years of our family being together. I can only see my daughter via videos from her school. I feel gutted to be honest. But there is no way I can change my flights right now to make this happen. It pains me to know that my wife will sit in the school auditorium watching our talented daughter’s great performance. I will only share it with her via text messages. I truly cherish every moment I get to spend with my family.  I just want to be a great wife and great parent. I want to be able to show them how proud of am of their amazing achievements.

Until DOMA is repealed I do not get to start doing that.

I tell our story to the world because I know that sharing our experiences, sharing our lives, will lead to change we need. It has been over four years of traveling back and forth, and I genuinely love my wife more with every day. I never regret the path that I have chosen because I know that when we have true equality and our life can begin together properly, that the moments we spent apart will feel like distant memories. The fact that she married me is just the next step in our big adventure…

On behalf of everyone involved with the Stop the Deportations – the DOMA Project campaign, we extend heartfelt congratulations to Inger & Philippa.

Love Defines Marriage: The Fairytale Romance of Yajaira & Licia, Childhood Friends Reunited and Exiled in Brazil

Living in Brazil there are endless possibilities of what could happen to you.  Not knowing, as I walk down my street towards the market, if I will be hit with a rock or even shot… But with my life right now those are my fears, that is what I face everyday doing errands. Not because I’m a foreigner, but because I’m a lesbian and living in exile with the woman I love.

My wife and I met in grade school while she was in the United States with her family. Her parents, with work visas, decided to provide their daughter with better opportunities in life. And that is how I met this short, rosy cheeked new girl in my 5th grade class, who would change my life forever. We liked the same things, the same music, had the same sense of humor, so we naturally became best friends.

We spent the next two years attached at the hip, learning more about each other, becoming closer.Our friendship opened up these feelings in us that we didn’t understand, but we felt an attraction and love that we never acted upon or spoke of. We did not want to ruin our friendship. This amazing chemistry would come to a halt when her parents had a business opportunity in another state.  Two years of friendship and unspoken love broken by distance, parents, and lack of ability to protest. We were only 12 years old, told by both our parents that we will meet new people and create new friendships, but we both knew this was different; this “friendship” was special and unforgettable. I knew I would never forget the feeling she gave me, the fulfillment she put in my heart. She was the one!

Twelve years later, with the power of internet and the boom of social networking, an e-mail comes through from a familiar face and my heart just knew. It was her. She was my best friend, and, as I came to realize, she was the love of my life. I knew at that point things were going to change. I was not going to let us be separated this time. Through lots and lots of e-mails, we both revealed to each other that we were lesbians; it was as thought those twelve year-old girls finally revealed their hidden feelings. I thought “this is amazing, this is the way it was supposed to be.”  Two people torn apart; reunited. I was ready to continue our journey together, as was she. So excited to see her, I asked her where she was living now, as I was dialing the number to get the first flight out. The message came through, my heart sank and I hung up the phone. Brazil.

I learned that a few years after she had moved to Florida, a family member of hers in Brazil was severely hurt in a car accident and her parents rushed home to be with the family. After some time living in Brazil, her father realized he didn’t want to go back to the U.S. He had missed his family so much and his mother was falling ill, he made the choice for the family to stay in Brazil permanently.

I had a difficult decision to make. Do I enter this new relationship knowing there would be so much distance and expensive traveling? Although the decision was difficult, I also knew I couldn’t let her go again. So I got my passport and visa and hopped on a flight to Brazil.

Our relationship blossomed into something beautiful. I traveled to visit a handful of times. I was able to reconnect with her family and meet all her friends and co-workers. During one of my visits, and with my mom’s blessing, I decided to ask her to marry me, which she accepted happily. We had decided on a date and what our colors would be and all the great things that we were to look forward to when planning a wedding. Little did we know about what stood in the way of our happiness. I looked into getting a petition for my wife and went on the website for the United States Consulate to see what paperwork and fees I had to take care of. There on the site it clearly stated the definition of marriage was (and still is), “between a man and a woman”. I was hurt, disappointed and stumped. I didn’t understand how my country could do this to me. How after all that the U.S. has been through, it could be so closed minded to the marriages between gay and lesbian couples. I spoke with my (now) fiancée and told her about what I read. Everything we had planned on was suddenly shattered and we were stuck like this, her in Brazil and me in New York. We both did more research online about this law, “DOMA,” and realized until the U.S. joined other countries in Europe and South America we would have to live like this. Either apart or in exile. But either way, we knew our love for each other would see us through.

We made a choice to live in Brazil together as a civil union couple, the first in our town. As a civil union couple I have all the rights to stay and live here as a permanent resident, but the dangers and prejudice we both face are severe. My wife, who is a teacher, risks losing her job because she is a lesbian.  We are mocked and looked at with disgust in the streets when we are together. We fear what people in our town and in Brazil could do to us.  Although the civil union bill and marriage bill has been passed here, the protection of the gay and lesbian people is not enforced nor carried out.

We face many risks, but we face them bravely together. My Brazilian, civil-union-wife dreams of going home to the U.S., where she grew up starting at 4 years old. I dream of going to my home with her, to be with my family, my little brothers and sisters. I dream of my family finally meeting her and the two of us having a happy marriage. We are a loving binational couple waiting in exile for the rights we are entitled to, like every other American citizen who falls in love outside his or her country. I deserve the right to sponsor my wife and bring her home with me because I am a U.S. citizen and I believe in the respect of marriage between two people in love.

This is our story. Our story is filled with hope and love and faith.  It is faith that one day, with a lot of patience and by participating in efforts like this one, by telling our story, that our dreams will come true.  Because it’s love that defines marriage, not government.

6 YEARS TOGETHER, 5,000 MILES APART: DOMA Keeps Two Women From The Life They Dream Of

 Laws. Laws are what make people behave (supposedly) in a good way, what make them what we call good citizens of a country. They rule our lives and most of the time we do not think about them; they are just what they are and we have learned to live with them.  But sometimes, laws are what can make our life very difficult.

This is what my girlfriend and I have been living for the past six years. Never knowing when and if we would see each other again, not because we were not sure of our feelings, but because of immigration laws.  Every time I come to the United States, I have to leave within ninety days, so I have been living my life between two different countries. Because of the so-called Defense of Marriage Act, I cannot have the life I wish I had.  I cannot be with the person I love or work in her country. When I am back in France, I go back living with my family and doing uninteresting jobs so I can save money to pay for my next trip. Is it how life is supposed to be? Torn between two countries?


Our story started in 2005.

I guess we could call it destiny. Tammy was engaged to a man when I met her and I was single, and nineteen years old at the time and not looking for anyone and especially not for a woman.

We met on the internet, on a TV show board that we both used to watch, her in the United States and I, in France. I have always loved speaking and reading English, it felt natural to me and we did not have any problem communicating with each other. My level of English improved considerably though thanks to Tammy. On this board, we would talk every day about the TV show and sometimes about more personal matters. Maybe five months after being in contact we started using messenger to talk to each other, our conversation were finally live!

We would spend hours online, literally, talking to each other about our lives, our families, passions and such.  The connection was obvious, the attraction present in both our mind but we never said anything about it for a long time. I knew I was attracted to her, I had seen pictures of Tammy when she had never seen any of me. And she did not for a long time. I guess I can say I was lacking self-esteem and was scared of what she would think about me once knowing what I looked like.

But we kept talking and talking, about anything. We just needed to spend time together despite the distance and the time difference… Seven hours.  Every night I would stay up late until 2 or 3 a.m., sometimes  even later. Just so I could be with her as much as possible. She became my daily dose of happiness. I had never felt that way for anyone before, and never have to this day.

In July 2005, I went on a vacation for two weeks up in the mountains. I had no internet, we had never spoken on the phone to each other so I did not have her cell number. For the first time in months, I was not in touch with her and it was really hard for both of us to deal with. We knew this was going to be hard, the day before leaving on vacation; I did not want to turn off my computer because this meant I would not hear from her for fifteen days. A terrible thought. I started to realize then how important Tammy had become for me, my feelings were growing stronger each day and I needed her in my life. If this is how a junkie feels for his drug, then I had become an addict. Two weeks later I finally came back home, as you can imagine the first thing I did was to get on the internet to talk to her, tell her that I had missed her and that I was happy to be back at home. She felt the same way. So we resumed our daily discussions, sometimes we would spend eight hours straight talking together. Or at least, typing to each other.

Months went by, I eventually showed Tammy a picture of myself, anxious behind my computer screen that she would be disappointed. I guess she was not, lucky me!  Things started to heat up a little between us, desire was obvious, the allusions to intimacy became evident. I was mentally and physically attracted to her. And for the first time in my life, I really had to admit that I might be attracted to women. This was a little hard to accept at first. I thought I was not normal, this was not good, this was not how things were supposed to be. More questions raised in my young head.

One day we finally admitted our love to each other, I cannot help but smile and feel like crying as I write this. I remember I was about to go to bed, and Tammy asked me a question:

“What do you think is going on between us?”

“I don’t know… I think it’s love”

I thought my chest was going to explode as my heart was beating so fast, I had never experienced such a strong emotion in my life before.

All she said was, “I think so too.”

For the first time we told each other, “I love you.”

Needless to say I did not sleep much that night. So many questions were present in my mind. What was I doing? How could I be in love with someone I had never seen but only on pictures? I had never spoken to her on the phone or on a webcam, I did not even know what she sounded like. I knew, I was crazy… But it felt good!

And now here we are, six years later, still in love, wanting nothing more than to be able to commit to each other and get married. Not a day goes by without us wanting to live together and feel the frustration to be separated with no solution for a future together. I think we can say we have proved our love to each other, both our families know about our relationship, accept it and supports it.

How much longer are we going to have to wait? Our life together is passing by, year after year. We want to build something together, live in the same house, have a kid, to have our family, Tammy, her son and I. Every day we see that things are moving slowly concerning gay rights and immigration laws, but this is not changing fast enough for us.  That is why we are sharing our story.  We want to help bring about change. We should not have to sit behind our computer monitors waiting for things to change, we should already be living together, just like any other opposite-sex couple who do not have to go through what we go through on a daily basis.

The unfairness of this situation is really tough on us.

This is a very stressful situation, when every time I go to the U.S., I never know if I will be let in, as immigration officers do not like me to stay for 90 days in the U.S. so often, even though technically it is allowed on the “visa waiver” program. Needless to say that every time I visit, I do not volunteer a word about being in a relationship with another woman, so as not to raise suspicions of me wanting to stay illegally, which is not the case. Because Tammy has a son, she cannot leave the U.S. so we can live together in another country, I respect this. It just makes it harder for us to be together.

Couples like us who live in separate continents because of unfair laws keep speaking up and organizing and fighting for change we will all finally have the life we want and deserve. We have to keep fighting so all of us can achieve nothing more than what all other couples have: The right to be a family!

Anne & Tammy

Jackie and Gloria: Married Lesbian Couple in Massachusetts Fights Deportation to Pakistan That Would Tear Them Apart

Gloria and I met at college three years ago when we were assigned as roommates. She was an international student from Pakistan and I was born and raised in Massachusetts. Despite our cultural differences we had an instant connection since the first day. For the first few months we explored Boston together and our friendship grew stronger and deeper until we became inseparable. Some of our friends even called us “the conjoined twins” because we were rarely seen apart. We began to realize that our relationship was different than the friendship of our fellow roommates at the college. We were falling deeply in love.

As summer approached, I worried about not seeing Gloria till the fall. Then she dropped a bombshell on me, “I might not be coming back to school.” I was in shock. I was very upset. I asked Gloria why was she going to move and where was she going to go. She explained that she was having some financial problems and that she was going to go live with her parents who had moved from Pakistan to Texas. Gloria was on a foreign student visa, and a move to Texas meant that she either had to change schools or leave the United States. After we talked, we went for a walk on the beach that was near our campus and talked about how much we would miss each other. We could not imagine waking up and not seeing each other’s face first thing in the morning. Late that night, both of us pretty sleepless, Gloria proposed a solution. “Let’s suppose I ask my parents if it would be okay if you moved in with me to their house, would you move?” In an instant, without any hesitation, I answered “Yes, of course.” I had never been to Texas before but all of a sudden it did not matter, all that mattered at that time was to be with each other.

I didn’t know what to expect living with Gloria’s parents; I just wanted to be with Gloria. Whatever compromises we had to make to be together were well worth that goal. In August 2009 I moved to Texas and lived with Gloria and her parents. Over the course of the next year we realized that we wanted to spend the rest of our lives together. Gloria’s parents were kind to me, but we played a kind of “don’t ask, don’t tell” game in order not to offend their sensibilities. It was not the greatest arrangement but we were together for that year and managed to keep Gloria in legal status while we figured out how to stay together.

We wanted to have our own home and eventually get married. Since we could not get married in Texas, we decided to move back to Massachusetts and make a home of our own together. By then we were sharing everything including our finances. Our lives were fully integrated.

We married in Massachusetts on October 23, 2011. It was the happiest day of my life.

We recently received a letter from Gloria’s school that her student visa status will soon expire if she does not again enroll in class. At this point we cannot afford Gloria’s international student tuition fees which are almost two times more expensive than in-state tuition. With the expiration of Gloria’s student status we know that she is deportable to Pakistan. Even though she is a law-abiding person, and despite the love and commitment that we share, there is no way for me to sponsor her.
As an American I find it very unfair that my spouse could be taken away from me just on the basis of our gender and sexual orientation. If Gloria had fallen in love with an American man and married, there would be no problem with the immigration. As a married couple they would be protected, and allowed to build a future together.

When I was a young girl I was taught that laws of my country are there to protect us and to make sure we are all treated equally. I do not see how the Defense of Marriage Act (DOMA) is protecting anyone. Instead, I feel that DOMA is a way for my government to punish me for falling in love with a Pakistani woman.

As a citizen of United States of America I am witnessing a tremendous, harrowing injustice being done to my family. Gloria and I are ready to join the fight for full equality and end this injustice. We cannot imagine standing by silently. There is no way we can live in Pakistan. An lesbian Pakistani woman is already at great risk, but a lesbian binational couple? Half of which consists of an American lesbian? It is ridiculous. Every freedom we take for granted in this country is implicated here. We have no other country where we can go, nor should I as an American even be thinking about exile. Our lives are here.

We cannot allow the random fact of our differing citizenships and our same gender be a reason for the American government to destroy what is most precious to us, our love for each other. We hope those reading this will help join this campaign to end this humanitarian crisis. We may be young, but we have great hope and optimism for the future. We know that we will not achieve full equality without fighting for it, and so we ask you to join with us and demand that the Obama administration protect all lesbian and gay binational couples, ensure that none of us are torn apart or forced into exile.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.