Consider it the next major court battle against the Defense of Marriage Act: Gay Americans will file the first lawsuit to challenge DOMA on the grounds that it bars them from sponsoring a gay foreign spouse for a visa like straight couples can.
Immigration Equality, a New York- and Washington, D.C.-based nonprofit that will represent the couples in the lawsuit, told SF Weekly the news Wednesday.
"The suit will assert that denying green cards to spouses of gay and lesbian Americans is unconstitutional," said Steve Ralls, Immigration Equality's spokesman. "It's the first federal court challenge on the behalf of binational families."
Immigration Equality has been examining its legal options since the Obama administration's statement last week that it would no longer defend the Defense of Marriage Act, which gives federal marriage benefits to straight spouses only. Up until now, that's meant that gay Americans couldn't sponsor their foreign spouse for a visa, an issue we examined in the 2010 cover story "Worlds Apart."
"Certainly the administration has now indicated that lesbian and gay
couples should be receiving every federal benefit straight couples
receive - that includes immigration benefits," says Ralls. "With them saying
[DOMA] is unconstitutional, I think we're starting in a very strong
position. With the right plaintiffs in the right circuit, we have a
really strong chance of winning."
Ralls says the non-profit is still mulling exactly which couples to
choose as plaintiffs, and deciding in which federal circuit court to
file the suit. They've zeroed in on the First or Second Circuits in
New England, given the concentration of states that allow gay marriage
in that region. The attorneys want to select plaintiffs whose marriages are recognized in their home state.
"I don't know that we've completely taken California off the list of
possibilities, but certainly there are strong reasons to consider the First and Second Circuits," Ralls says. Attorneys are also deciding
whether just the gay Americans have the right - or "standing" - to be
plaintiffs in the suit, or if the foreign spouses will be included as well.
Earlier this week we wrote about gay spouses of Americans who, given Obama's new stance on DOMA, are already challenging deportation cases in immigration courts on the grounds that if they were straight, they would be able to get a spouse visa.
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