Immigration: Equality for Same Sex Couples and Reform in One Week!

Edith Windsor married Thea Spyer in Ontario, Canada in 2007.  Edith and Thea were together many years and lived in the State of New York.  Time passed, and since New York did not allow marriage between same sex partners, so they traveled to Ontario, Canada to wed.  Thea Spyer died in 2009 and left her entire estate to Edith Windsor.  Although their Canadian marriage WAS recognized by the laws of the state of New York, when Windsor claimed the federal estate tax exemption for surviving spouses, she was barred from doing so under DOMA.  Windsor paid $363,053.00 in estate taxes, and sought a refund from the IRS.  Windsor’s case went all the way up to the US Supreme Court.  Edith Windsor is a tiny, 83 year old woman.

In December, 1995, Rosa Parks refused to give up her seat on a Montgomery City bus. In 2009, Edith Windsor refused to be denied equal protection under the Fifth Amendment of the US Constitution.

This past Wednesday, June 26, 2013, at 7:00 AM EST, SCOTUS (Supreme Court of the United States) struck down DOMA, Defense of Marriage Act stating, “DOMA” is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”  The decision is 77 pages long, written and decided by the most brilliant legal minds in the world.  It is a both eloquent and beautiful decision.

DOMA was enacted before any state had passed any law allowing same sex marriage.  DOMA was enacted as a knee jerk reaction, just in case any state would pass a law allowing same sex marriage.   Marriage has long been under the sovereign powers of the individual states.  When DOMA was enacted under federal law, it was done so with the stated desire to prevent equal protection under federal laws for an unpopular group of people.  DOMA effected over 1,000 federal laws, rules and regulations. 

 “The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.  New York’s actions were a proper exercise of its sovereign authority.  They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”

Under DOMA, same sex couples could not apply for fiancé visas or permanent resident visas by virtue of their marriage to a US citizen, as heterosexual couples could do.  Now that DOMA has been struck down, this means that same sex married couples suddenly have all of the immigration benefits that have long been enjoyed by heterosexual engaged and married couples!  At 10:30 EST on Wednesday morning, a New York City federal immigration judge halted the deportation of a Colombian man married to his American citizen husband.  The US citizen-husband had filed for permanent resident status for his immigrant-husband, but heretofore DOMA prevented the immigration judge from granting the case.  Wednesday morning, Gabe, a legal intern, ran the 77-page ruling over to the Immigration Court in lower Manhattan and delivered it to the Immigration Judge sitting on the bench five blocks away from their legal office.  The decision was still warm from the printer. 

On Thursday afternoon, the US Senate passed comprehensive immigration reform in a 68 to 32 vote. Fourteen Republicans joined every Democratic senator in voting for the bill, which creates a pathway to citizenship for the estimated 11 million illegal immigrants currently living in the US.  Vice President Joe Biden presided over this rare vote in which every senator sat at his or her desk and voted as the clerk called the roll.  The gallery was full, including DREAMERS (undocumented students brought to the US as children).  When the Vice President announced that the bill had passed, the DREAMERS and the gallery erupted into chants of “Yes, We Can, “in spite of Biden’s earlier warning that cheering and booing was not permitted in the chamber. 

The passed bill requires that certain border security measures are met, including hiring more border patrol agents as well as the construction of another 350 miles of fencing along the US Mexican border BEFORE any illegal immigrants can receive their permanent resident “green cards”.  Now, immigration reform passes to the US House of Representatives. There are 435 voting members in the US House of Representatives.  Call your US Representatives and let your voice be heard.

What a week!