Married But Unequal: Fighting Back Against the Indignity of DOMA

My husband and I have been happily married for the past two years. Luke was born in South Africa but has been living in the U.S. for the past 12 years. We live on a relatively quiet street in the Chelsea neighborhood of Manhattan. We’ve created a nice home together with our two boys: Andrew, who’s 4 years old, and Thomas, who’s 15 weeks old. They’re two of the cutest dachshunds you’ll ever meet.

Like other Americans married to foreigners, I set out to sponsor Luke for a green card as my spouse, so, on April 29, 2012, I filed a Petition for Alien Relative (otherwise known as a Form I-130) with the U.S. Citizen and Immigration Services for my husband. We were optimistic that we would at least get an interview like all other married couples, but no interview was ever scheduled. Instead, on Sept. 24, 2012, we received a cold, brief letter from the Immigration Service notifying us that our petition had been denied. Why? Because we’re both men.

I married Luke, my best friend, my soulmate, on June 25, 2010, in Milford, Connecticut, a small, beautiful New England town near the coast where we’ve spent a lot of summer weekends with close friends. (You may have read our previous post, “Can the U.S. Government Recognize True Love?”) A year later, almost to the day, we celebrated the legalization of same-sex marriage in New York, which brought the total number of states that permitted same-sex couples to marry to six (plus the District of Columbia). And soon, states from California to Maine may join them. But despite this progress, every married gay and lesbian couple is still profoundly unequal. We lack the 1,138 benefits, rights, privileges, and responsibilities that straight couples receive from the federal government, because of the so-called Defense of Marriage Act, otherwise known as DOMA, which denies federal recognition of lawful marriages between same-sex couples. Among them are veterans benefits, spousal protection from the estate tax, social security benefits for widowed spouses, medical coverage, and the ability to sponsor your spouse for a green card.

With the Obama administration’s explicit support of same-sex marriage and the decision by the president and the attorney general to stop defending DOMA in court (not to mention the growing acceptance from the public, Hollywood, and even the NFL), we set out on a path to try to get what every other couple wants — stability and the chance to plan and build a future together — but we cannot begin that journey with certainty until Luke has a green card.

The denial letter from Immigration Services clearly stated in an unapologetic, discriminatory tone that we are still, in fact, second-class citizens. Luke’s freedom to find security, independence, and a sense of “home” and work a 40-hour work week for a regular paycheck, get a driver’s license, and travel without anxiety was again curtailed.

We were denied without any review of our case (a service we paid for), which was particularly shocking. We were denied without an interview, without any effort to investigate the legitimacy of our relationship or Luke’s eligibility as an immigrant — in fact, without any consideration of the possibility that our marriage could possibly be legitimate, simply because we are both men. Granting us a preliminary review would not have required that the federal government stop enforcing DOMA. We did not expect our green-card case to be approved yet, and we knew that the government could not “recognize” our marriage for legal benefits. But we did expect this administration to treat us with dignity and respect by meeting with us to determine that we were otherwise eligible for Luke to receive a green card, so we believed that the time was right to petition and at least have our case put on hold, or “in abeyance,” until the United States Supreme Court finally rules definitively on the constitutionality of DOMA, which is expected to happen next year. Not only was rejecting us without knowing anything about us as a couple offensive, but it contradicted everything this administration had been saying about equality for gay Americans.

Regardless of how deep our love for one another runs, regardless of the fact that we were best friends for a year and a half before we started dating, regardless of the fact that I have never been more comfortable with anyone in my life, and regardless of the fact that there’s no one I’d rather spend my time with, the federal government has declared that our marriage doesn’t warrant the same respect paid to my straight friends’ marriages, because Luke and I are both men. That’s the only reason.

We just passed the 16th anniversary of the Defense of Marriage Act. After 16 years it’s clear that the only thing this law defends is institutionalized bigotry. The letter we received from the U.S. Citizenship and Immigration Services, a division of the U.S. Department of Homeland Security, solidifies that fact. It was all there in black and white. The letter states, “This Petition for Alien Relative (I-130), filed on April 9, 2012, seeks to classify the beneficiary as the spouse of a United States citizen…,” and continues to point out that only because we’re gay, we do not deserve the same rights as our straight friends:

Both you and the beneficiary are male. You married on June 29, 2010, in Connecticut. The INA does not specifically define the term “spouse” with respect to gender, but Section 3 of the Defense of Marriage Act (DOMA) states for purposes of eligibility for federal benefits, “marriage” means “only a legal union between one man and one woman as husband and wife” and the word “spouse” refers “only to a person of the opposite sex who is a husband or a wife.” … The DOMA applies as a matter of federal law whether or not your marriage is recognized under state law. Your spouse is not a person of the opposite sex. Therefore, under the DOMA your petition must be denied. We do not consider it necessary to determine whether your marriage is lawful under state law, or whether the beneficiary would be a “spouse” under the INA absent the DOMA, as these questions are not material to the appropriate disposition of the petition under the clearly applicable and controlling Federal statute.

“We do not consider it necessary…”: six words that hurt so much. “We do not consider it necessary…” It’s a complete disregard of every other aspect of our marriage. It throws out any consideration of every other element of our relationship that makes our marriage “healthy” and “strong” under any other definition. It was dismissive. And it was puzzling. The president of the United States has said that this law is unconstitutional, and seven times in the past two years it has been struck down by federal courts, and yet Immigration Services let us know that they did not consider it worth their time to determine whether we would be eligible for the green card if not for DOMA — a service we paid for in filing our petition.

This not only contradicts the words and deeds of the president, but it seems to reject recent decisions of the Board of Immigration Appeals that require Immigration Services to determine whether a same-sex couple have an otherwise valid marriage and would be eligible for a green card if not for DOMA. That the Obama administration allowed its agency to send us this letter defiantly insistent on discriminating against us as a gay couple reminded us that we must continue to organize and educate and urge our president to do better. It is unconscionable that President Obama, himself the son of a binational couple, could allow this offensive letter to have been sent under his watch.

Living in Manhattan, we live in a bubble. It’s easy to forget how other parts of the country may view our relationship, and we kind of like it that way. I have rarely felt so discriminated against, particularly given that I stayed in the closet for 23 years, and given that when I came out, I moved to West Hollywood and eventually to Manhattan, two of the more accepting places in the country. I now realize I was blindsided by my optimism. Are opposite-sex couples truly the only couples that can keep the institution of marriage strong? Is the institution of marriage really that fragile? Can DOMA defend any marriages by denying married couples like us access to the green-card process? Of course not.

I wrote last year about my own feelings of inadequacy when Luke and I decided to get married, believing all the hateful proclamations that marriage wasn’t something in which gay people were entitled to participate. But those feelings were short-lived and have long passed, and I know today that I’m a good husband. So is Luke. The letter we received from Immigration Services was hurtful, but it doesn’t detract from that fact.

The truth is that Luke and I defend marriage every day — our marriage, the one that matters to us the most. We do everything we can to keep our marriage healthy. And as happy as we are at this point in our marriage, I look forward to growing old with Luke and learning more and more about how to be a decent, honest, respectable man each and every day. We defend our marriage by deciding not to walk out after a disagreement or a fight. We defend our marriage by settling our differences and never going to bed angry with each other. The defense of marriage is a personal decision. It’s up to each couple, individually. We’ve learned as a nation that what it takes to defend the strongest bond two consenting adults can have runs much deeper than the color of their skin. And soon we’ll learn it runs deeper than their gender. It’s about the core of the two individuals and the indefinable bond and commitment they make to each other through honesty, respect, humility, faithfulness, patience, joy, and love. I will love Luke no matter what. But we demand to be shown the same respect that our federal government shows to straight married couples. Denials like the one we received are a step backward on the long road to equality, and they cannot be brushed aside.

For now, our country is still bound to the past by this archaic, pointless law. Even though I believe its days are numbered, every setback must be addressed. And Luke and I will do everything in our power to see DOMA’s demise as soon as possible. We will continue to fight for a green card for Luke, and for a complete review and decision of our case. We will insist on that interview where we can show any immigration officer what love, commitment, and marriage look like.

I know it’s only a matter of time before anti-gay discrimination is viewed as negatively as segregation and bans on interracial marriage. And teenagers who are bravely coming out of the closet today will be able to look forward to falling in love with and marrying any consenting individual they want — maybe even their high-school sweetheart. Just imagine that. In the meantime, we’re seeking equality. We believe the institution of marriage is strongest when entered into by loving, committed couples, regardless of sexual orientation. And we will continue to defend our marriage every day.

Brandon Melchior and his husband Luke are part of a group of gay binational couples challenging DOMA and fighting for equality under our country’s immigration laws as part of The DOMA Project. This article was originally published on October 10, 2012 in The Huffington Post.

“I’m So Proud of My Two Sons,” A California Mother Speaks Out Against DOMA

Brandon with his mother, Gailya

When my son, Brandon, told me he was gay, I thought it was just a phase! He was about to begin his final semester of college and had been through some brief relationships with some (in my opinion) unsuitable girlfriends. I believed that when he got better about choosing girlfriends, he’d happily settle into his true, straight self.

But an odd thing happened. As Brandon became more comfortable with the idea of being gay, he became more comfortable in his own skin. He was happy – even exuberant, sometimes. He became more open with people, more reflective, more confident, and more spiritual. He developed a circle of friends who were unconditional in their support and he found that almost all of his old friends accepted and loved him, as well.

To see my son happy, truly happy in his new life was all I had ever wanted for him. That, and a happy, fulfilling relationship.

I remember the day he told me about Luke. He was almost giddy, describing their close friendship and how that friendship had blossomed into love. I had never seen him like this. Such joy. Such hope for the future.

I met Luke a few months after they started dating and liked him instantly. His personality has a brightness that complements my son’s intensity. He laughs easily and has a dry sense of humor that matches Brandon’s. They are easy with one another, and kind. They share a zest for life, a love of Manhattan and an artistic sensibility. Brandon had found a good match. Luke was soon like a son to me.

Luke is from South Africa. It soon began to dawn on me what that would mean for their future as the harsh reality of the so-called Defense of Marriage Act became bitterly clear. Luke’s immigration status in America was in jeopardy. And, even if he and Brandon were to marry, because of DOMA, there would be no legal protections afforded to him that would be available to Brandon’s sister and her husband, if they had been in a similar situation.   That parallel kept coming back to mind. Why should my children be treated differently by our government?

A little over a year ago, Brandon called me to tell me that he and Luke had decided to get married. My mind instantly went to “What will I wear?” But there was no time to linger on that thought because Brandon said they planned to marry that Saturday. It would be just the two of them – and their dog, Andrew. They wanted to save the big wedding with family and friends for a time when they could afford to do it in the style they both dreamed of. I would fly to New York from California. His sister would fly up from Georgia and his father from Texas and they would surround themselves with family and friends.

But they didn’t want to wait that long to get married. They went to Connecticut, one of the few states that recognizes gay marriage, for their wedding. It was clear to me that Brandon and Luke were deliriously happy, with one exception: they had this immigration thing hanging over their heads. Luke is even afraid to travel domestically, so Brandon splits his holidays – trying to make it to Georgia for a family Christmas a few days late or early so he can be with Luke on the actual holiday. If Brandon comes to California to see me, Luke stays back home in New York. I visit New York when I can. As a result, it has not been possible to all be together like a family, to fully integrate Luke into our lives as we would like to do. It is hard to understand why our government would continue to tear away at the fabric of American families like this. After all, this is not only about Brandon and Luke but about all of us who are treated like our families don’t count.

Luke has become very involved in raising awareness and fighting for equal rights for binational gay and lesbian couples. This has empowered Luke in such a way that he and Brandon have decided to go public with their story. Brandon has filed a green card petition for Luke on the basis of their marriage. Just taking this action has lifted their spirits. He and Brandon are hopeful that the time is right for this nation to face the cruel discrimination of DOMA and make it possible for any loving couple that chooses to marry to receive equal treatment under the law. I am so proud of my two sons.

I fully support Brandon and Luke in this fight, but I worry that they will be separated, or that, in order to stay together, Brandon will be forced to leave this country to be with his husband. That would break my heart because it would tear them away from us.

There is such ignorance and fear driving this terrible prejudice. In this difficult world, we find ourselves torn apart by small differences instead of embracing the common bonds we all share. Love is the supreme bond. We need it for our spiritual survival. We crave it for our happiness and fulfillment. And when any adult couple is lucky enough to find love together and they are willing to make a lifelong commitment, I believe that courageous act should be encouraged. They should not be treated as second-class citizens or ostracized because they happen to be of the same sex.

So, my dream for my son and his husband is that the discrimination of DOMA will end soon. My dream for them is that they will be free to build the kind of life together that is every couple’s dream. There will always be people who do not understand them. But lack of understanding is not justification for taking away basic human rights. I believe the law often has to step in before human understanding can be accomplished. The Civil Rights movement proved that. We are in a new era of civil rights struggles. It is my dream that equal marriage rights are just around the corner for Brandon and Luke. I will do what I can to help them achieve that dream by making sure that those who represent us and work for us in government know how American families are impacted every day by DOMA. They will all hear from me. I hope you will join us in this effort.

See Brandon’s post: “Can The U.S. Government Recognize True Love?” November 28, 2011.

Can the U.S. Government Recognize True Love? Married New Yorkers, Brandon and Luke, Join Fight Against DOMA

More Than Just Friends

Luke and I had been best friends for a couple of years when we faced a decision that many gay friends confront: Whether to take our relationship to a romantic level. We soon learned that as a binational couple, we would face even greater challenges.

Luke was the first person I met when I moved to New York from Los Angeles in January 2007. He is South African, and I’m a sucker for a good accent. We clicked instantly. Rarely did I hang out with someone one-on-one and feel comfortable; if there was any lull in the conversation, I felt like it was my fault and my duty to fill it. But hanging out with Luke was effortless. Other friends drifted in and out of my life, but Luke was always there and I could always talk to him. Our lives merged more and more over the first year and a half, despite my moves to that distant region called Brooklyn and our neighbor to the north, Harlem. His friends became my friends and my friends became his. We went to movies and dinner in groups, but more often than not we were meeting in coffee shops and enjoying each other’s company. It was so simple and so… easy.

We grew closer as we talked about everything, called each other out on our ridiculousness, shared our lives and revealed our imperfections with each other. When I came out of the closet, I had no clue how to form friendships with other gay men without making it seem like I was asking them on a date. Half of the time I wasn’t sure myself.  I’ve rarely been sure where I stand with people. And I’ve rarely known what I’ve been looking for. Despite this, my friendship with Luke never seemed to get bogged down with such self-doubt. Even when we seemed to run out of things to say it was oddly comfortable.  Our friendship became extremely valuable to me.

Luke would make a comment and hold my hand. In doing so, I noticed Luke had a way of holding my hand that seemed so loving and nurturing. I started looking at him differently but I was afraid of our friendship changing, or worse, ending.

The tension built when I was away on a work trip in Atlanta.  I was texting back-and-forth with Luke, when our byte-sized conversation hit a lull. That dreadful lull. Then his text came. You know the one.

“Brandon, have you ever thought of us as more than friends?”

I shot back, “Really Luke?? Over text?? While I’m out of town???”

“LOL,” he replied.

I was simply too afraid of our friendship changing, and I told him we would be better off if we did not put it at risk. I made it sound like a very logical and reasonable solution, but still, I was filled with fear. What if we made great friends, but we weren’t compatible as boyfriends? Our friendship would be forever altered. And finally, what if it was true love? What then?

When I returned back to New York, things were different. Everything I was afraid of happening was happening. He would skip out on going to dinner with our group of friends or he would leave early with other friends. He seemed distant. I had never experienced the kind of feelings that overwhelmed me when I sensed him slipping away. I felt a void in my life. I told my therapist and one of my closest friends about our text conversation and how afraid I was of things changing. My therapist said, “When’s the last time you made a good decision based on fear?” I had no response. It was one of the most logical things I’d ever heard. I texted Luke a few days later.

“Have you ever thought of us as more than friends?”

We both LOL’d.

Our first kiss was on my 29th birthday. It was ridiculous how cinematic it was: the two of us desperately trying to get a moment away from our friends the night of my party, finally ducking around a corner as it started to rain. We pulled each other against the side of a building across the street from Sheridan Square and started to kiss. That was more than three years ago.

Our friendship had changed. And nothing collapsed. The ground didn’t open up and swallow us whole. My fear subsided. It turned into a hope that I had never felt before, that sense when you meet someone you can imagine waking up next to and craving a day of doing everything or nothing as long as he is with you.

We already knew so much about each other. We’d seen all of our different moods, unfiltered. He moved in within 6 months. We got a dog, a Dachshund named Andrew. We moved from Harlem to a great apartment in Greenwich Village. We were a family. We started talking about marriage less than a year into our relationship.

We wanted to wait until we could have a big wedding; neither Luke nor I is a man of half-measures. We soon realized it would be years before we would be able to afford the kind of wedding we wanted, but we didn’t want that to stop us.

The day we got our rings, we sat at our dining room table, smiling, alternating glances between them and each other. Andrew was looking up at us, waiting patiently to be fed or played with. There was kind of a healthy blend of shock, fear and excitement between us that was palpable. These days two men marrying can be considered political activism as much as an expression of love and commitment. Neither of us thought that at this point in our lives we would have met the man we wanted to be with for the rest of our lives. For me, there was no question: My best friend made the perfect partner.

I got down on one knee, slipped the ring on Luke’s finger and said “Luke, will you marry me?”

Almost immediately I felt a knot in my stomach. Not because of the question or Luke’s answer (he said yes). I felt like it wasn’t real because it wouldn’t truly be official for all the world to know. It didn’t feel equal. I felt like an imposter in a straight world’s tradition and privilege. I shared these feelings with Luke, who assured me our marriage was just as valid as any other marriage. This was going to be our marriage and our ceremony, he said. We were going to start our own traditions. We understood from the beginning that this decision would cement our commitment to each other. That was the easy part. I was dating my best friend.

For a gay child of divorced parents, a committed marriage can seem like a triumph of will as much as fate. If anyone could make it, I knew we could.

When the economy collapsed, I got laid off. Within a few months, I was able to find a new job but Luke’s business slowed down. So we were tight on money. Our dreams of having a big, gorgeous wedding seemed to be slipping further away. So we opted for the cheapest, er, most affordable wedding in history. With our $20 rings from the glamorous Canal Street, we caught a train up to Milford, CT ($50), obtained marriage licenses ($40), and caught a cab to our friend’s house for the weekend ($10).  During the ceremony, we smiled from ear to ear and didn’t break eye contact while the Mayor of Milford read the gender-neutral wedding vows and Andrew sniffed around City Hall.

We spent the weekend at our friend’s house and watched the movie “Milk” in honor of our wedding, which also happened to be gay pride weekend.

Our first year as a newly married couple has been phenomenal, though not always easy. We’re moving through the same growing pains as every other healthy marriage. Communication, compassion and humility have gotten us through our difficult times, and will continue to do so as we grow together. We have replaced our Canal Street wedding rings with something more appropriate. But our first rings will always have the most sentimental value.

On our first anniversary, New York joined five other states and the District of Columbia ending discrimination against lesbian and gay couples in marriage. We celebrated with thousands of other New Yorkers, knowing that other couples would no longer be forced to travel like refugees to Connecticut or other states to do what all other Americans take for granted. But winning marriage equality in New York, and watching the euphoria on Sunday July 24 as thousands of lesbian and gay couples married across New York state, is a celebration of a job not yet completed. Marriage Equality can never simply mean winning the right to marry in each state, as long as the federal government denies recognition to those marriages.  Each of us, married and celebrating our love and this historic advance, remains unequal. Marriage InEquality will continue until the ruinous and hateful era of DOMA is ended.

And that is how Luke and I decided to embark on a new chapter of our lives together. I will fight for my right to sponsor my husband for a “green card,” a privilege heterosexual Americans take for granted. With President Obama’s recent decision not to defend DOMA and signals from the Department of Homeland Security about protecting LGBT families from being torn apart by deportation, we believe that this is the time to challenge our exclusion from the family-based immigration system that otherwise works reasonably well to keep opposite-sex binational couples together.

We start here today by arguing our case in the court of public opinion. Recently, we joined Stop The Deportations – The DOMA Project, and I filed a petition for Luke as my spouse. We know that puts us in a potentially perilous position: unlike an opposite-sex couple my petition will face the insurmountable hurdle of DOMA and unlike all other spouses in our situation, Luke could face deportation if we are not ultimately successful.  We do not want to be forced into exile and we cannot imagine life apart. This means we might have no option but to fight this in the courts and in Congress like so many thousands of gay binational couples who have raised the profile of this inhumane and cruel discrimination.  Whatever the short-term challenges, we will not allow ourselves to be torn apart by my government.

For now, I’m determined not to let fears about our uncertain future dominate my thoughts. I am not worrying about being forced to leave our home and lives we’ve built in New York. I’m not thinking about saying goodbye to friends and family, or how we’d ever re-build new lives for ourselves half-way across the world in South Africa. I cannot allow myself to think of what would happen if Luke was deported. Instead, I’m trying to channel the uncertainty into the sort of optimism I felt when President Obama was elected: That this is a country in which we judge others by the content of their character. We should not hold anyone back because of who they are or who they love.  And, most importantly for us, in the end, we must take on this battle.  We will not bring about change by standing on the sidelines.

Can a nation’s immigration laws recognize something as simple as true love? We think so. If change comes, Luke will truly be able to live his life to its fullest potential with his husband and best friend. Which will make it all the more possible to take that honeymoon we have been dreaming of.

© The DOMA Project

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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.