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Binational Couple Have DOMA Challenge Case Dismissed

The case of Indonesian citizen Handi Lui and American Michael Ernest has been dismissed by a federal judge who relied upon a homophobic and outdated court ruling from 1982 rather than contemporary information regarding same-sex marriage.

Lui and Ernest married in Massachusetts in 2009, and the two sued the government after US Citizenship and Immigration Services denied the couple’s marriage-based petition for permanent residency for Lui. The lawsuit argued that the USCIS violated the Immigration and Nationality Act’s wording regarding discrimination on the basis of sex and that the immigration officials interpreted the Defense of Marriage Act was unconstitutional.

House Speaker John Boehner’s pet anti-LGBT lawyers moved to dismiss the case. Judge Stephen V. Wilson dismissed it saying that immigration officials did not err in their decision. The problem is that he went further. He relied upon a 1982 case involving a gay male couple that were denied immigration sponsorship rights. In that case, the rejection of the petition was based upon the fact that the attorneys for the couple had “failed to establish that a bona fide marital relationship can exist between two faggots.”

Of course, contemporary evidence has shown that marriage between two people of the same sex is no different than marriage between people of the opposite sex. LGBT immigration rights advocates argued that the case Adams v. Howerton should not be relied upon due to the number of cases that have come since then. Victoria Neilson, legal director of Immigration Equality, stated “We’re disappointed that the court relied on a thirty-year-old decision to dismiss Mr. Lui’s case when the world has changed so much in the last three decades. This case provides another example of why we need a permanent solution for all LGBT immigrant families.”

The Obama administration’s Justice Department earlier this year announced that it would not be defending DOMA cases because he argued that the law should be found unconstitutional.

The Advocate noted:

That brief followed an August Homeland Security announcement that the agency will conduct a case-by-case review of pending deportations to better handle high-priority cases, such as those involving convicted felons. An administration official later clarified that same-sex binational couples may be considered among lower-priority cases, though it’s unclear whether such guidance has been applied in the field.

However, Judge Wilson wrote that the administration is walking “a fine line” by arguing that it must continue to enforce DOMA by denying green card petitions from married same-sex couples while “simultaneously arguing that Section 3 of DOMA, which excludes same-sex couples from the definitions of marriage and spouse for purposes of federal law, violates equal protection.”

Lavi Soloway, cofounder of Stop the Deportations stated about the ruling:

“Judge Wilson’s ruling dismissing this challenge to DOMA by a gay binational couple is a setback in the fight to win equality for all lesbian and gay Americans married to foreign citizens and a rejection of the Obama administration’s strong arguments in support of the plaintiffs in this case. Crucially, it sets up a likely appeal to the Ninth Circuit on the question of whether lesbian and gay binational couples in that jurisdiction have the right to challenge DOMA in federal court.

“The Judge sided with the arguments made by House Republicans that discrimination against binational couples is permissible and found that DOMA does not violate the equal protection provision of the U.S. Constitution in the immigration context. This is a surrender to explicit, indefensible discrimination that should outrage any fair-minded person.

“The Judge, a 1985 Reagan-appointee, relied on nothing more than the 30 year old case of Anthony Sullivan and Richard Adams, and refused to consider compelling arguments that the court must consider DOMA’s constitutionality based on current legal and social context. Wilson essentially states that no married same-sex binational couples should be allowed to challenge DOMA in federal court in this jurisdiction, a proposition that should concern all Americans greatly. Conservative judges must not be in the business of blocking access to the federal courts because of outdated decisions.

“Judge Wilson’s poorly-reasoned decision is an important wake-up call that the momentum toward full equality cannot be taken for granted, even with the Obama administration coming into court on the side of lesbian and gay plaintiffs. We must keep up the fight to end DOMA through the legislative process, in our federal courts, and most importantly in the court of public opinion. Unless DOMA is repealed or struck down by the Supreme Court, lesbian and gay binational couples will not achieve equality.”

There is no word if they will appeal the order.