Five legally married gay couples filed a lawsuit Monday to challenge the 1996 law that bars the federal government from recognizing same-sex marriages, arguing that its impact is particularly harsh on couples that include a U.S. citizen and a foreigner.
The lawsuit, filed in U.S. District Court for the Eastern District of New York, was brought by Immigration Equality, a gay rights legal organization that focuses on immigration issues. Same-sex marriage advocates said it was likely to become the most prominent suit seeking to overturn the law, known as the Defense of Marriage Act, based on its effect on gay immigrants who want to gain legal residence through marriage to U.S. citizens.
Under immigration law, a citizen can apply for a foreign spouse to obtain legal permanent residency, with a document known as a green card. Since unlike many other visas, there are no limits on the number of green cards available to spouses of citizens, those applications are among the fastest and most straightforward procedures in the immigration system.
Under the marriage act, which is called DOMA, federal authorities do not recognize same-sex marriages, even from states that allow them. In recent years, as same-sex marriage became legal in several states, gay and lesbian couples have come forward to say they were facing a painful choice: either deportation for the immigrant or exile to life in a foreign country for the American.
“I’m a citizen of this country just like anybody else,” said Heather Morgan, 36, a plaintiff in the lawsuit together with her spouse, Maria del Mar Verdugo Yanez, 42, who is from Spain. After a 13-year friendship that evolved into a romance, the couple was married in August 2011 in New York City, where they live.
“I’m very proud of this country,” Morgan said in an interview. “I don’t want to feel like I have to leave here in order to be with the person I love. I shouldn’t have to choose,” she said.
Rachel B. Tiven, the executive director of Immigration Equality, said the group tried during the past year to persuade federal officials to put a hold on deportations of immigrants in same-sex marriages while several challenges to the marriage act made their way through the courts. But federal authorities declined to halt the removals, she said, prompting the group to proceed with the lawsuit. In Feb. 2011, the Obama administration announced that it regarded the central provision of the marriage act as unconstitutionally discriminatory, and said officials would no longer defend it in the courts.
On Wednesday, the 1st U.S. Circuit Court of Appeals in Boston will hear arguments in the first marriage act case to advance to the appeals level. That case contends that the act is unconstitutional because it denies federal benefits to same-sex couples married in Massachusetts, the first state to make same-sex marriage legal.
Justice Department officials have said that they will not defend the core provision of the marriage act in that hearing, but will dispute other claims in the case. A conservative legal group appointed by the House of Representatives will argue in favor of the act.