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Entries in Defense of Marriage Act (3)

Thursday
Oct182012

Second Federal Appeals Court Strikes Down Key Provision of DOMA

Jeffrey Hamilton/Thinkstock(NEW YORK) -- A federal appeals court in New York Thursday struck down a key provision of the Defense of Marriage Act (DOMA), ruling that section 3 of the federal law that defines marriage as between a man and a woman violates the equal protection clause of the Constitution.

“DOMA’s classification of same-sex spouses was not substantially related to an important government interest,” Chief Judge Dennis Jacobs wrote for the 2-1 court. “Accordingly, we hold that section 3 of DOMA violates equal protection and is therefore unconstitutional.”

The opinion marks the second time an appeals court has struck down the law, but the first time that an appeals court has relied upon a heightened scrutiny standard in doing so.

“Heightened scrutiny means that if the government is going to discriminate against a particular group, it needs to have a very convincing justification for the discrimination,” said Tobias B. Wolff, a professor of law at the University of Pennsylvania.

The New York case involves Edith Windsor, who in 2007 married Thea Spyer, her partner of more than 40 years. The couple were married in Canada, but resided in New York until Spyer died in 2009. Windsor was forced to pay $363,000 in federal estate taxes. She applied for a refund, believing she was entitled to a marital deduction, but she was denied the claim on the grounds that she was not a “spouse” within the meaning of DOMA.

“Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they’re legal strangers,” James Esseks, director of the ACLU LGBT Project and a lawyer for Windsor, said after the ruling. “Edie and Thea were there for each other in sickness and in health like any other married couple, and it’s unfair for the government to disregard both their marriage and the life they built together and treat them like second-class citizens.”

In 2011 the Obama administration decided it could no longer defend DOMA in court, arguing that it was unconstitutional. In court briefs, Solicitor General Donald B. Verrilli Jr. described the impact of the law.

“Although section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them, it excludes such marriage from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals’ marital status.”

Because the government refused to defend the law in court, Speaker of the House John Boehner, R-Ohio, moved to intervene and appointed the U.S. House of Representatives Bipartisan Legal Advisory Group (BLAG) to do so.

Paul D. Clement serves as BLAG’s lawyer and stressed that DOMA was enacted with strong majorities in both houses of Congress and was signed into law in 1996 by President Bill Clinton. In court briefs, Clement wrote that DOMA was not meant to invalidate any marriages, but “simply asserts the federal government’s right as separate sovereign to provide its own definition which governs only federal programs and funding.”

Thursday’s decision was written by Chief Judge Dennis Jacobs, who is considered a conservative judge and was nominated to the bench by George H.W. Bush.

Copyright 2012 ABC News Radio

Wednesday
Feb222012

Federal Judge in California Strikes Down Key Provision of DOMA

Hemera/Thinkstock(SAN FRANCISCO) -- A federal judge in California Wednesday night struck down a key provision of the Defense of Marriage Act (DOMA) as applied to a federal employee who sought benefits for her same-sex spouse.

While this is not the first time a federal court has struck down a provision of DOMA, it is the first ruling to come since the Obama administration determined it would no longer defend the federal law that defines marriage as being between a man and a woman. Lawyers hired by the Republican leadership of the U.S. House of Representatives are now defending the law in court.

Karen Golinski, a lesbian woman married to her spouse under California law, brought the suit after she was unable to secure federal health benefits for her same-sex spouse.

U.S. District Court Judge Jeffrey S. White said, “In this matter, the court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.”

Lambda Legal Defense Fund, which represented Golinski, praised the ruling.

“We are thrilled,” said John Davidson, legal director at Lambda Legal. “This is a grand slam for us. Judge White agreed that sexual orientation discrimination should be given heightened judicial scrutiny and there is not even a rational justification for DOMA’s discrimination. Courts should regard with suspicion government discrimination based on sexual orientation.”

Copyright 2012 ABC News Radio

Monday
Nov012010

Gay Immigrants Deported, Even in Legal Marriages

Photo Courtesy - Getty Images(NEW YORK) -- Joshua Vandiver, a Colorado native who is earning his Ph.D. in politics at Princeton University, said he is the studious type who has rarely embraced activism. Now, just months into his legal marriage to Venezuelan Henry Velandia, he is fighting to save his husband from being deported.

Had the couple been straight and not gay, Vandiver would have been allowed to apply for permanent residence status for Velandia, who could then later apply for citizenship.

But their dream to build a life together is been derailed by the 1996 Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman under all federal laws, including immigration.

"I am a scholar of ancient Greek political thought and the Renaissance and politics," said Vandiver, 29. "I never intended or wanted to be an activist. But I have to do what is necessary to save my marriage and to keep the one I love in this country. I think that is my right as an American citizen."

On November 17th, the couple will go before a federal immigration judge to ask that deportation proceedings be halted until legal challenges or a Congressional repeal of DOMA have been resolved.

Vandiver has applied for a petition to allow Velandia to stay in this country, an application that will surely be denied. And with that rejection letter, the couple will consider a lawsuit. "I see that as discriminatory," said Vandiver.

"I am really frightened thinking that I will have to live without my other half," said Velandia, a salsa dancer. "But we have faith and are doing the best we can."

The United States is home to about 24,000 same-sex couples in which one partner is an American citizen and the other is not, according to an analysis of 2008 census survey data by the Williams Institute, University of California Los Angeles Law School. About 25 percent of those couples have children.

No one knows how many of these couples have immigration problems. Some obtain legal residency through work visas, applying for asylum or getting green cards on their own. Others leave for countries that have more favorable laws.

"We are bringing this to light to help policy makers understand exactly how it impacts lives and to find a remedy and to consider whether it's a high priority to deport a lawfully married spouse," said their Los Angeles lawyer, Lavi Soloway.

Soloway is representing the couple and 11 others around the country who face deportation of a foreign-born spouse.

"At the time [DOMA] was passed, gay couples in the U.S. didn't have the opportunity to be married," he said. "Now, we finally have a critical mass of same-sex couples who are seeing the impact of DOMA."

Velandia immigrated to the U.S. in 2002 on an employment-sponsored visa, founding his own dance school, HotSalsaHot. He has appeared in the Spanish-language television show "Mira Quien Baila."

Vandiver and Velandia have lived together in New Jersey since 2006. Princeton recognized them as domestic partners in 2007, and this summer, they married in Connecticut, where same-sex marriage is legal.

"I started from zero in this country -- new language, new culture," said Velandia. "It's been like the American Dream."

However when his visa expired, an application for a green card was denied. In 2009, Velandia received a notice of deportation. If deported, he could be barred from entering the U.S. for 10 years.

According to the New York-based advocacy organization Immigration Equality, thousands of these gay couples -- one American and one an immigrant -- leave the U.S. each year for countries where gay immigrants are welcome.

Vandiver and Velandia say neither wants to leave the United States.

"My training is to be a professor and teach political theory in an American context," said Vandiver. "I really need to stay in America to pursue my studies and my work. I don't think I should have to leave America."

Velandia said he cannot imagine going back to Venezuela, where he lived a closeted life.

"With my relationship with Josh in America, I found the love of my life. I can actually be myself," he said. "It's ridiculous to try to go back to Venezuela being a gay man. I was repressed by the culture and religious beliefs. Going back would be like going into the past."

"We expect DOMA to be defeated in a few years and be history," said Soloway. "We want people like Henry to be here."

Copyright 2010 ABC News Radio







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