Judge rules lesbian binational couple can challenge DOMA

By Melanie Nathan, April 21, 2013.
Screen Shot 2013-04-21 at 4.08.36 PMIn a case filed by  Los Angeles-based Center for Human Rights and Constitutional Law, a Judge has ruled that a lesbian couple facing immigration discrimination has the legal standing to challenge the federal Defense of Marriage Act, otherwise known as DOMA, because it violates the constitutional rights of immigrants in same-sex marriages, a federal judge has ruled.*

“U.S. District Judge Consuelo Marshall also ordered Friday that the lawsuit, filed last year on behalf of Philippines citizen Jane DeLeon and her spouse Irma Rodriguez, can proceed as a class-action case.

DeLeon claimed in the lawsuit that she was eligible to obtain a green card, but wasn’t able to get a waiver she needs to obtain residency here because the U.S. government doesn’t recognize her same-sex marriage to an American.

Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law, which filed the suit, said he hopes the decision will lead the government to reconsider visa applications by same-sex couples.

DeLeon asserted in a statement Saturday that her visa application was denied “solely because we have a same-sex marriage. “Hopefully our long ordeal is now close to an end and we can stop living in fear of being forced to leave the country,” she said.

The case is one of a number of challenges brought by same-sex couples – some of them facing immigration troubles – over the 1996 law that prohibits the U.S. government from recognizing same-sex marriages. It is now under review by the Supreme Court. ” The Associated Press

The Case Title: Arenas/Deleon, et al. v. Janet Napolitano, Secretary of the Department of Homeland Security; et al. Case No. SACV12-1137-JVS(MLGx) (United States District Court for the Central District of California)

Los Angeles:  On Friday July 12, 2012, Jane DeLeon filed a class action lawsuit in federal court in Los Angeles challenging the constitutionality of the Defense of Marriage Act (DOMA) as applied to deny immigration family benefits.  The DOMA was enacted and signed into law by President Clinton in 1996.  For all federal benefits based on marriage, including immigration benefits, DOMA restricts the definition of marriage to unions between “one man and one woman.”According to the lawsuit Jane DeLeon, an immigrant from the Philippines, has been residing with her U.S. citizen partner in California for twenty years and they were married in 2008.  The lawsuit claims that DeLeon has been approved for an immigrant visa based on her employment.  However, she needs a “waiver” from the U.S. Citizenship and Immigration Service (“CIS”) to qualify for a visa.  Such waivers are commonly available to immigrants whose deportation would cause hardship to a US citizen spouse.

In DeLeon’s case the waiver was denied by USCIS in September 2011 solely because she is married to another woman.  Her lawsuit seeks equal treatment for immigrants seeking visas who are in lawful same sex marriages with U.S. citizens as the treatment afforded heterosexual married couples.On Friday Federal Judge Consuelo Marshall in Los Angeles, CA issued a long-awaited decision ruling that Jane DeLeon has standing to challenge DOMA in the courts and that DOMA violates the Fifth Amendment’s guarantee of equal protection as applied to immigrants because it is irrational:  “This Court finds that the broad distinction created by DOMA Section 3 is not rationally related to Congress’ interest in a uniform federal definition of marriage.”  The court decided that “state law traditionally governs marriage recognition,” and that DOMA had disrupted the “long-standing practice of the federal government deferring to each state’s decisions as to the requirements for a valid marriage.”

The court also found that a 1982 precedent case issued by the U.S. Court of Appeals in the Ninth Circuit, Adams v. Howerton, which decided that barring same-sex couples from immigration benefits did not violate equal protection, has been superseded by “intervening statutory and policy changes,” and is therefore no longer binding precedent.Judge Marshall also ordered that the case proceed as nationwide class action for the benefit of a class of immigrants it defined as follows:  “All members of lawful same-sex marriages who have been denied or will be denied lawful status or related benefits under the Immigration and Nationality Act, 8 U.S.C. Section 1101 et seq. by the Department of Homeland Security solely due to Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7.”

The court decided that the class is so numerous and its members’ legal claims so similar as to justify certifying the case as a class action.Ms. DeLeon had also applied for a preliminary injunction giving her and class members immediate work permits before the Supreme Court rules on the constitutionality of DOMA, a decision expected in the Windsor case in June 2013.

The Los Angeles court declined to issue a preliminary injunction at this time, believing that interim protection already provided by DHS of deferring the deportation of immigrants in same-sex marriages with U.S. citizens will sufficiently protect the class until the Supreme Court issues its decision in the Windsor case.

Statement by plantiffs’ attorney Peter Schey, President of the Center for Human Rights and Constitutional Law:  “We welcome the court’s decision that DOMA violates the constitutional rights of immigrants in bi-national same-sex marriages.  This will afford maximum protection to class members, particularly those who are low-income and without the means to hire attorneys, and those whose visa applications have already been unconstitutionally denied.  We suspect there will be no further denials of visa applications based on DOMA after this decision is reviewed by DHS headquarters.  We will continue to dedicate our resources to ensure that immigrants in same-sex marriages with U.S. citizens are not detained or deported and are treated humanely pending a final decision by the Supreme Court on the constitutionality of DOMA.”

THE ORDER: http://www.centerforhumanrights.org/Order%20Denying%20Motion%20for%20Preliminary%20Injunction.pdf


Thank you Kathleen P.: “It’s also one of the few DOMA cases still moving forward in the lower courts. Most are stayed pending the SCOTUS decision on Windsor. Here are the three orders the judge issued on Friday. NOTE: Scribd isn’t displaying the font in some documents correctly. If it’s too difficult to read on Scribd, download the document and it will appear with original font.

http://www.scribd.com/doc/136976739/126 (order re Motions to dismiss)
http://www.scribd.com/doc/136976749/127 (Order granting provisional class certification)
http://www.scribd.com/doc/136976755/128 (Order denying preliminary injunction)

Melanie Nathan can be contacted at [email protected]

Immigration Equality begs on backs of binationals | Failed strategy has its remedy in death of DOMA Begging for money to fund a failed strategy for immigration inclusiveness is a waste of time, money and resources | It is too late because even if UAFA is included in CIR, it will be the demise of DOMA that get binational spouses their green cards.   http://oblogdeeoblogda.me/2013/04/20/immigration-equality-begs-on-backs-of-binationals-failed-strategy-has-its-remedy-in-death-of-doma/

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5 Comments on “Judge rules lesbian binational couple can challenge DOMA”

  1. Tracy April 21, 2013 at 8:39 PM #

    Yay!!! Not for the discrimination- but for the fact that this hideous & blatant bigotry, is finally being challenged. Best of luck to these women. Maybe the great USA will finally get with the program & try to catch up to the tiny yet forward-thinking countries like Sweden & New Zealand in human rights. It’s time to be a beacon again, instead of a bully.

  2. Rod April 22, 2013 at 2:17 AM #

    Good Morning. I want to say thank you to Jane Leon, Irma Rodriquez and to Los Angeles Center for Human Rights and Constitutional Law….a huge thank you to all of you! I am the American half of a bi-national couple. We have been together over eleven years. I congratulate Jane and Irma on 20 years. As Jane Leon once did, my Fiance still resides in Philippines. We have never been able to afford to fight Doma. Therefore we applaud those who can. Consider you heroes and trailblazers. Doma has to go down. Your class action and/or the pending Scotus case must determine Doma unconstitutional. Bi-national couples throughout the US are struggling for their right to the American pursuit of happiness. Our right according to the Constitution! With so much appreciation, Manilou and Rod


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