Metropolitan News-Enterprise


Tuesday, April 23, 2013


Page 1


Judge Marshall Says DOMA Irrationally Discriminates Against Immigrants in Same-Sex Marriages


By a MetNews Staff Writer


The Defense of Marriage Act’s ban on federal recognition of same-sex marriages violates the Equal Protection Clause to the extent it denies an alien married to a U.S. citizen of the same sex an immigration waiver that would be granted if the alien’s spouse were a citizen of the opposite sex, a federal judge has ruled.

Senior District Judge Consuelo Marshall Friday denied a dismissal motion by the Bipartisan Legal Advisory Group of the U.S. House of Representatives, which intervened in the case after the Department of Justice declared that it no longer believes DOMA to be constitutional, to dismiss Jane DeLeon’s suit against immigration officials.

Marshall certified the case as a nationwide class action.

Marshall noted that the Ninth U.S. Circuit Court of Appeals, in Perry v. Brown (2012) 671 F.3d 1052—an appeal of which was recently argued before the U.S. Supreme Court—rejected all of BLAG’s arguments in favor of banning same-sex marriage but one. That argument, based on an asserted congressional interest in a uniform federal definition of marriage, was not before the court in Perry, which dealt with the constitutionality of California’s Proposition 8.

“This Court finds that the broad distinction created by DOMA § 3 is not rationally related to Congress’ interest in a uniform federal definition of marriage,” Marshall wrote. “Contrary to Intervenor’s argument, DOMA § 3 does not ‘ensur[e] that similarly situated couples will be eligible for the same federal marital status regardless of the state in which they live.’…Opposite-sex couples may receive federal marriage-based benefits if joined in a valid state marriage. Same-sex couples will not, even if like Plaintiffs, they are joined in a valid state marriage.”

DeLeon, a mother of two who immigrated from the Philippines, and her spouse Irma Rodriguez alleged in their complaint that they have lived together since 1992 and were lawfully married in California in 2008, at a time that DeLeon’s permanent residency application was pending. That application was denied on the ground that DeLeon—who alleges she was in a relationship with a man who was her common-law spouse under Filipino law, and with whom she lived both here and in the Philippines before she met Rodriguez—misrepresented her marital status when she obtained her visitor’s visa in 1989.

She applied for an I-601 waiver in 2011 on the ground that her removal from the United States would cause hardship to her spouse, Rodriguez.

In addition to arguing that DOMA Sec. 3 is constitutional, BLAG contended that DeLeon lacks standing because she did not challenge the Immigration and Nationality Act, which also limits recognition of marriages to heterosexuals. But Marshall noted that Citizenship and Immigration Services only cited DOMA in denying the waiver.

The judge, however, dismissed Rodriguez from the suit, saying she lacked standing, and dismissed DeLeon’s substantive due process claim on the ground that she was not being punished for being homosexual.


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