Posts filed under ‘9th Circuit Court of Appeals’

DOMA Doubts Rescue Couples from Deportation: This Week in Prop 8 for March 28, 2011

Matt’s usual Monday feature didn’t go up while I was away, so here it is. -Adam

By Matt Baume

Sex sells when it comes to marriage equality, with a male modeling agency lending its talents to a new fundraising campaign. A reprieve for a woman facing deportation proves just how important marriage can be. Meanwhile, more voters than ever support the freedom to marry, so why aren’t politicians listening?

Sexy torsos! A group of male models are showing their support for marriage equality by signing their names to a Shepard Fairy poster which will then be auctioned to support the grassroots organization FAIR.

It’s a lovely poster, and it’s very nice that the Nous Model Management company is supporting this project. But I gotta say, the primary appeal of these men is probably not their signatures. You have to wonder if maybe they could’ve raised more money and awareness by auctioning off pictures of themselves.

I mean, the only reason I’m even talking about this is so I can flash shirtless men on screen at the top of the show. There’s nothing better than sex for getting people interested in a cause.

But either way, it’s very nice that they’re doing this, and hopefully we’ll see more things like this that feature people of color, women, diverse body types, the disabled … something representative of our entire community.

Turning to Prop 8 news, this week the 9th Circuit Court of Appeals turned down a request to lift the stay that prevents gay couples from getting married right now. Even though Prop 8 has been already found unconstitutional, it’s still in place while the anti-gay industry appeals.

That’s hurting gay couples right now who need access to marriage. And even though we can demonstrate the harm of that keeping Prop 8 in place causes, the court wants to play it safe until all the appeals are done.

So, why is access to marriage so important? We got a great answer to that question this week when a judge in New York halted the deportation of woman because she was able to get married.

For more information about that case, let’s talk to her attorney, Lavi Soloway.

MATT: So I’m talking today with Lavi Soloway. He has great news this week for bi-national couples. So, Lavi, tell me a little about Monica and Christina.

LAVI: Well, Monica came from Argentina about 10 years ago. And in the process of getting together in their relationship, they decided to move in together. And Christina at the time was finishing her studies up at college in Buffalo, and Monica and Christina went up on a bus to go get the last of her things to move them down to New York City.

And while they were on the bus, it stopped in Rochester, New York, and the border patrol got on the bus, asked everybody for their papers, and found that Monica was in the United States without legal status and took her away. And Monica was detained in a detention facility in New Jersey for three months, and eventually released and then placed into deportation proceedings.

MATT: And what does that look like, what happens when somebody’s in deportation proceedings?

LAVI: Well, of course deportation proceedings are somewhat of a euphemism, because there’s not a lot of proceeding. You go to court, you appear before a judge, and a judge determines whether you have any right to stay in the United States. And unfortunately for Monica, as for many of the foreign spouses and partners of gay and lesbian Americans, she didn’t have any kind of Visa status, and she didn’t have any kind of legal avenue to stay in the United States.

But she was married to a U.S. citizen. And she did want to assert her right to stay in the United States on the basis of that marriage.

MATT: So, fast-forwarding to their day in court, what were you arguing and what made things different this time?

LAVI: Well, what we argued this week in court was that the judge and the attorney representing the Department of Homeland Security should take note of the changing landscape of the Defense of Marriage Act. And what does that mean specifically? It means that they should take note of the fact first that the President and the Attorney General announced that they would no longer defend the defense of marriage act on February 23, and that they found the Defense of Marriage Act was unconstitutional. But also that Congress, both the House and the Senate, were moving now to repeal it. And that legislation had been introduced.

And then of course, that previously, this summer, a federal district court judge had ruled the Defense of Marriage Act to be unconstitutional. And that taken together, all three branches were essentially working on the demise of the Defense of Marriage Act, that it would be premature to deport the spouse of a lesbian American citizen, while that was happening, when the Defense of Marriage Act was the only obstacle standing between them and a green card.

MATT: And how did they respond? How did the court respond?

LAVI: Well, of course we were very very pleased that both the judge and the government attorney were very open to this argument. And agreed to adjourn the proceedings and to allow Christina and Monica to pursue a marriage-based immigration case to its conclusion.

MATT: What do you put that down to? Why were they so receptive to this argument?

LAVI: Well, I think that in part it’s the conversation that we’re having in the United States outside of the courtroom. I think that in part it’s the polling data and the momentum of public opinion that really no longer sees gay and lesbian couples who are married as deserving of discrimination. And really there’s a lack of an argument to the other side.

And the other part of it is that the personal narrative of Christina and Monica wanting to be together and living together as spouses and being lawfully married under the laws of the state of Connecticut in this case, that’s a very powerful narrative, and when you look at them and you see their life together and you see in the paperwork they’ve provided all the evidence of a bona fide marriage, it’s hard to say to them, “you know what, sorry, we have to deport your spouse.”

So I think it’s a combination of the things going on outside the courtroom, and it’s the courage and the determination and ultimately the personal story of that couple that persuades both the judge and the government attorney to do the right thing.

MATT: So what are the next few months going to look like for this couple?

LAVI: Well we have some more filings. Now that we’ve been given this opportunity we’re going to file some more paperwork in support of the marriage case. And we’re going to keep track of the marriage case and see how the immigration service handles it. In any marriage case, usually it’s a heterosexual couple, but in any marriage case it’s typically a process that takes six to twelve months, so we have a ways to go, and we hope that ultimately their case will be approved and that Monica will get her green card on the basis of the marriage and the two will no longer have to go to immigration court.

MATT: Well, we’ll cross our fingers and hope for the best. Lavi Soloway is an immigration attorney and founder of Immigration Equality and Stop the Deportations. Lavi, thanks so much for speaking with us.

LAVI: Thanks, Matt.

Now, keep in mind that these legal proceedings are going to take months to years.

But there were some encouraging signs this week on DOMA repeal. We’re now just one vote shy of passing repeal in the Senate Judiciary Committee. Getting it passed there is going to be a big first step, and it’ll build momentum for full passage in the Senate.

Of course, the National Organization for Marriage is pushing back with all kinds of lies about DOMA. We put out a video last week that debunks all their crazy claims. You can click over here to watch it. And if you haven’t contacted your members of Congress yet to tell them why we need DOMA overturned, there’s never been a better time.

That’s because new polls show that a majority of Americans want DOMA repealed. It’s a big shift in public opinion, and smart politicians are listening.

This week in Colorado, the Colorado Senate passed a Civil Unions bill by a pretty large margin — 23 to 12, which included some Republicans voting for the bill. Now it goes to the House, where there should be enough votes to pass it, but other Republicans may try to kill the bill with procedural tricks.

And we’re losing ground in Indiana. Even though the state already bans gay couples from marrying, Republicans want to add a second ban in case the first one is found unconstitutional. That’s already passed the House, it passed the Senate Judiciary Committee this week. And it’s likely to pass the full Senate sometime soon. Then it goes to voters. And there’s some room for hope there. A new poll this week shows Indiana voters oppose the bill.

But of course, polls have wrongly shown us winning in the past.

And last, there’s good news coming out of Europe. Lichtenstein’s Parliament unanimously approved a limited form of civil unions called “partnerschaftsgesetz.” In England, where they’ve long had civil unions, Home Secretary Theresa May promised to move forward on full marriage equality. And civil unions are coming to a tiny island off the British coast called The Isle of Man. That’s a big deal, because the Isle of Man is relatively rural and conservative, and not at all what the name “Isle of Man” might lead you to hope.

Speaking of which, here are those torsos again, not really for any reason, just ta-da.

Now click over here to catch our previous episodes, and click over here to subscribe. And if you’ve already done that, then head over and to tell your tell your elected officials that a majority of Americans support DOMA repeal.

See you next week.

March 30, 2011 at 11:00 am 25 comments

BREAKING: 9th Circuit denies motion to lift stay on Judge Walker’s Prop 8 ruling

By Adam Bink

Just came in: the 9th Circuit refused to accept the Plaintiffs’ motion to vacate the stay pending appeal.

United States Court of Appeals for the Ninth Circuit

Notice of Docket Activity

The following transaction was entered on 03/23/2011 at 10:58:31 AM PDT and filed on 03/23/2011

Case Name: Kristin Perry, et al v. Edmund G. Brown, Jr., et al
Case Number: 10-16696
Document(s): Document(s)

Docket Text:
Filed order (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time. [7691622] (KKW)

The following document(s) are associated with this transaction:
Document Description: Main Document
Original Filename: 10-16696 Order Denying Motion to Vacate Stay CIRC.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1106763461 [Date=03/23/2011] [FileNumber=7691622-0] [064e3099192dcfe6ea0f150ecee9ad74b262ea9d25e3b1907aedec1e1a2ecc965077db6207d8fe04be2b79ca0b2b4c4f072a8701a888cab3b2ebdb9d16f25775]]

The filing can be found here.

The 9th Circuit decided that six months, likely more, to force couples to wait while the California Supreme Court drags its feet over summer recess, is acceptable. Including couples like Ed and Derence:

Even though there has been no harm caused to the state since 18,000+ couples married in 2008. Despite the benefit to businesses small and large. Despite the need for same-sex couples to be as equal as anyone else. Appalling.

More as it comes.

March 23, 2011 at 11:20 am 141 comments

Prop 8: WaPo profiles Imperial County clerk Chuck Storey

By Adam Bink

As many of you know, Advocates for Faith & Freedom filed a petition to get back into the courtroom after the 9th Circuit ruled the deputy county clerk has no standing. From the Associated Press a few weeks ago:

In its new petition, Advocates for Faith & Freedom argues that Storey, whose official legal duties include certifying marriages, will be directly impacted by the outcome of this case.

Conservative groups are hopeful Imperial County will be able to re-enter the case because of the wording of the Jan. 4 9th Circuit Court of Appeals ruling, which denied standing to the the county’s conservative Board of Supervisors and a deputy county clerk.

In the ruling, the three-judge panel disqualified the deputy clerk on the grounds that she reported to the county clerk and as such had no power herself.

“Were Imperial County’s elected County Clerk the applicant for intervention, that argument might have merit. A County Clerk is not before us, however, so we need not, and do not, decide now whether a County Clerk would have been permitted to intervene under the circumstances present in this case,” the panel wrote.

Yesterday, The Washington Post profiled Chuck Storey, the newly elected county clerk who decided to step up and intervene in the case. And he’s not entirely supported:

EL CENTRO, Calif. — Chuck Storey ran for county clerk-recorder in a remote, desert corner of southeast California on a pledge to run a lean operation in churning out government documents like property deeds, birth certificates and marriage licenses.

“Imperial County needs a businessman,” he said during last year’s campaign.

Less than two months in office, the low-key real estate agent became something else: a very public face against gay marriage in California. Storey asked the 9th U.S. Circuit Court of Appeals last month to let him be the primary defendant in a lawsuit to uphold Proposition 8 — if a coalition of religious and conservative groups that sponsored the measure is removed.

Though Storey represents a county that voted overwhelmingly to ban gay marriage, his hometown critics say he was disingenuous when he didn’t raise his intentions earlier. Many voters thought the county’s role in the contentious issue ended Jan. 4 when the appeals court ruled its board of supervisors and deputy clerk had no legal standing to defend the ban.

Aaron Popejoy, president of the El Centro Chamber of Commerce, said the new clerk didn’t mention gay marriage, or give any hint of the legal bombshell he was about to drop, at a Rotary Club lunch Feb. 24, the day before he stepped into the lawsuit.

“I’m a little disappointed that he would open up this can of worms for us,” said Popejoy. “It’s one of those huge red flags that draw the wrong kind of attention to our community. We need to be a little more warm and welcoming.”

The Imperial Valley Press editorialized that Storey was inviting misguided stereotypes that the region is “bad or backward” — the kind of attention it got after becoming the only California county that tried to defend the marriage ban in 2009.

“We can’t think of one bit of good to come out of this effort in retrospect. It was a waste of time, energy and was damaging to the county’s reputation. And it’s happening again thanks to one self-aggrandizing man in Storey,” the newspaper wrote.


Gail Pellerin, president of the California Association of Clerks and Election Officials, knows of no other county clerks who have expressed interest in defending Proposition 8.

Imperial County supervisors say Storey is on his own. He is being represented by Advocates for Faith & Freedom at no charge.

“We were not involved in any way, shape or form,” said Supervisor Gary Wyatt, who has opposed the county’s involvement. “It’s a case of an individual who happens to be the clerk-recorder.”

The rest of the article is also worth a read. Storey has lost and is losing support, at the expense of the people he represents.

March 21, 2011 at 9:15 am 64 comments

Same Sex Sunday podcast with Derence and me

By Adam Bink

If you haven’t yet heard a behind-the-scenes interview with Ed and Derence, here’s one. This week’s Same Sex Sunday podcast (on iTunes and elsewhere) featured Derence from Palm Springs, discussing his life with his partner, Ed, who now has Alzheimer’s and would like to get married. The 9th Circuit is still considering a motion to lift the stay, and Derence and Ed penned an open letter to the court here. If you haven’t seen their video (now up to 80,000 views), it’s below:

I was also on a politics roundtable discussing the beginning of our campaign to repeal DOMA, how it came about, and marriage bills in various states.

It’s a nice listen. You can listen on the page here at The Bilerico Project by clicking the play button the widget at the bottom. We also discussed a transgender rights bill in Nevada and other topics. Phil and Joe, the co-hosts, always do an extremely professional and knowledgable job. The Facebook page for the podcast is here.

March 20, 2011 at 12:11 pm 15 comments

AFER files Prop 8 reply brief to 9th Circuit on lifting the stay

By Adam Bink

As posted by Kathleen earlier in the comments, today the American Foundation for Equal Rights filed a reply brief in the Perry case to the 9th Circuit regarding lifting the stay. Much of it is worth a read (and it’s only 9 pages). A good quote they pulled out:

“Proposition 8—and the stay that allows it to remain in force—is causing great damage. It is not merely deferring wedding dates, as Proponents suggest. For those near the end of life, it is denying the right to marry outright. But beyond the damage done to loving couples’ wishes to marry, Proposition 8 carries an unmistakable message—transmitted and enforced by the State and tolerated by this Court—that gay men and lesbians are members of a class of persons unworthy of the fundamental right of marriage and the ‘protection of equal laws.’ Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Each day that California’s constitution stigmatizes and disables Plaintiffs and others like them, it inflicts great and lasting damage. That constitutional injustice must not be allowed to continue.”

I’m running out the door so I can’t make the copyedits to get the text in, but there are also great arguments on the issue of standing on pages 1-3. My favorite:

Even if this Court has the authority under Article III to maintain a stay when itharbors doubts as to its own jurisdiction, the existence of such doubts means that the maintenance of a stay is inappropriate because the absence of a clear path to jurisdiction precludes the possibility that the party asserting jurisdiction has made the requi-site “strong showing” of likelihood of success on the merits. Nken v. Holder, 129 S.Ct. 1749, 1761 (2009). Proponents have no answer to this argument except to pro-nounce repeatedly “the strength of Proponents’ arguments for standing.”

The full brief can be found below.

View this document on Scribd

March 17, 2011 at 4:30 pm 52 comments

EDGE profiles Ed and Derence

By Adam Bink

EDGE on the Net, which I find to be kind of an “Associated Press” for LGBT news with outlets across the country, just published a short profile of Ed and Derence:

Derence Kernek and Ed Watson have been waiting to walk down the aisle for more than 40 years.

On the eve of Proposition 8 being declared unconstitutional last summer; Watson, 78, was diagnosed with Alzheimer’s disease. Now the couple is eagerly awaiting a decision from the Ninth Court of Appeals before Watson can no longer recognize the man he has loved for more than four decades.

Soon after the moved to California, Watson and Kernek filed for a domestic partnership. They have also enjoyed the community and acceptance for which Palm Springs is known-Watson and Kernek particularly enjoy Prime Timers, a social group for older gay men.

“What’s important to us now is to get married when Ed can still look in my eyes and remember me, remember us,” said Kernek.

Kernek and Watson joined the Courage Campaign after marriage equality opponents successfully put Prop 8 on the ballot. The Courage Campaign is an organizing network of more than 700,000 supporters who specifically oppose Prop 8 and seek to advance LGBT and other progressive causes. And Kernek and Watson allowed the Courage Campaign to share their story through their new online video project, Testimony.

Watson’s condition has deteriorated rapidly in recent months. He and Kernek, however, continue to hold out hope that the stay on marriage for gays and lesbians is lifted while the Ninth Circuit hears arguments and issues a ruling. Traveling to another state that allows same-sex couples to get married is simply not an option.

“It’s getting difficult for Ed to walk from room to room, going to another state is out of the question,” said Kernek.

Watson agreed.

“I have good days and bad, but I’m holding out hope,” he said.

You should head over to their site to read the whole piece about their lives moving around the country, including avoiding the Ku Klux Klan. These guys are amazing.

If you haven’t yet shared the video, you can do so on Facebook by clicking here. Getting their story in front of as many people as possible, as we head towards as 9th Circuit ruling on lifting the stay, is critical. Ed and Derence need this.

March 9, 2011 at 11:30 am 17 comments

DOMA for Dummies: This Week in Prop 8 for Feb 28, 2011

By Matt Baume

Can you even believe this week?

President Obama this week ordered an end to the defense of the Defense of Marriage Act, which is huge. We’ll check in with Marriage Equality USA’s Molly McKay and Immigration Equality’s Lavi Solloway to find out exactly what this means, in addition to talking about Dianne Feinstein’s surprise announcement about DOMA’s repeal.

And the surprises don’t stop there. Ted Olson asked the California Supreme Court this week to expedite oral arguments against Prop Eight, and to start allowing gay couples to start marrying now.

In addition, we all thought Imperial County was out of the game for good, but a new foe popped up this week at the very last minute.

All that plus more good news from Hawaii, Maryland, Delaware, and Rhode Island. Whew!

The DOMA situation is pretty complicated, so let’s break it down.

DOMA goes back to 1996, and has three main components. Section 1 just states the name Defense of Marriage Act. Section 2 says that no state has to recognize marriages from any other state. And Section 3 says that the federal government can only recognize marriages between opposite genders.

The law was passed in response to a court case in Hawaii, Baehr versus Miike, which fifteen years ago looked like it might legalize same sex marriage. We’ll come back to that case in just a few minutes.

Now, in the last few years, five court cases have challenged DOMA in different ways. The one thing that ties them all together is that they all have awkward names.

First is Commonwealth of Massachusetts versus United States Department of Health and Human Services. Then there’s Gill versus the Office of Personnel Management, Dragovich versus the US Department of the Treasury, Golinski v. United States Office of Personnel Management and Pedersen et al. versus the Office of Personnel Management, and Windsor versus United States.

And there have been other challenges, but those six are the most recent and the most likely to succeed. By the way, big big thanks to Box Turtle Bulletin for gathering a lot of this information together.

So, these cases were filed in 2009 and 2010, and the circumstances of each one is a little bit different.

Since Massachusetts legalized marriage equality, the state Attorney General there sued over Section 3 of DOMA when a legally marriage couple was denied burial in a federal veterans’ cemetery. Judge Tauro, of the US District Court for Massachusetts in the First Circuit, ruled in our favor in July of 2010. The Department of Justice Appealed in October.

Gill was also filed in US District Court in Massachusetts, also challenged Section 3, also was decided in our favor by Judge Tauro in July of 2010. And also was appealed by Justice in October of 2010.

Dragovich is in the District Court for the Northern District of California, part of the Ninth Circuit, and concerns retirement benefits. That one again challenges Section 3, and although it hasn’t yet been decided by Judge Wilkin, she did indicate that she was likely to rule in our favor.

Golinski’s interesting because Karen Golinski isn’t just a federal employee — she’s an employee of the Ninth Circuit Court of Appeals. And even though a judge has already ordered that she’s entitled to spousal benefits, the federal government refuses to obey because of DOMA. So now, she’s not just an employee — she’s also a plaintiff.

Pedersen was filed in the District Court of Connecticut, which is part of the Second Circuit. That’s important because there’s no precedent in the Second Circuit for dealing with sexual orientation discrimination. Five couples sued, again over Section 3, with filings due in March. The judge in that case is Vanessa Bryant.

And finally, Windsor. A couple from New York got married in Canada, one of them passed away, and the survivor was taxed on the estate as though they were single. Filings are due in March, the case challenges Section 3, the judge is Barbara Jones, and the court is US District Court for the Southern District of New York. Also part of the Second Circuit.

Okay. Got all that? Now, here’s what’s changing.

Until this week, Obama and Attorney General Eric Holder have gotten a lot of criticism for defending DOMA. Their rationale was that precedent compelled them to defend existing law.

Of course, they weren’t defending it very hard. That annoyed anti-gay groups, who felt that they could do a better job.

Now, the Justice Department is saying that in the Second Circuit courts, Section 3 of DOMA is unconstitutional. So that means that they won’t defend DOMA in Pedersen or in Windsor. They also said that they’ll cease to defend DOMA in the first circuit court.

In Dragovich and Golinski, they still might. That’s because “unconstitutional” in one court doesn’t necessarily equal “unconstitutional” in another court. It’s complicated. In essence, their position is that if you just casually glance at DOMA, there might potentially be a rational basis for keeping it around. But if you strictly scrutinize it, then it falls apart. COMPLICATED.

So, what’s next?

For now, DOMA’s still on the books. And with Justice out of the way, anti-gay members of Congress have the opportunity to step in and defend it themselves, which is what a lot of anti-gay groups wanted to happen all along.

They have until mid-March to decide exactly what they’re going to do, but they’ve been preparing for this for weeks just in case, so we expect them to have a pretty well-organized campaign.

This could also affect on a lot of other cases, starting with Prop 8 case.

I caught up with Marriage Equality USA’s Molly McKay in the Castro this week to find out more.

Matt: “So, how do you think the wording of Obama’s decision, specifically about using strict scrutiny, how is that going to affect, or potentially could affect, the Prop 8, Perry versus Schwarzenegger? Do you think that could have some ramifications?”

Molly: “Absolutely. The fact that they’ve weighed in and the President of the United States and the Attorney General of the United States lay out the case for why they believe that heightened scrutiny should apply for sexual orientation is really powerful. And will make a huge difference in the litigation as it’s moving forward. That was as big as what they declared today, really.”

And oh yeah! The American Foundation for Equal Rights requested this week that the Supreme Court expedite oral arguments against Prop 8 and that the Ninth Circuit Court lift the stay.

The Prop 8 case lives in two different courts right now: the California Supreme Court is considering standing, or who has the right to defend Prop 8. The Ninth Circuit Court of Appeals is deciding whether Prop 8 is constitutional.

If the courts agree with AFER, then it could mean that we’ll hear arguments really soon about who has standing to intervene, rather than in September as was originally planned. It would also mean that the Ninth Circuit would issue its decision on constitutional grounds much sooner. It could also potentially mean that gay couples could start getting married right away. Like, this afternoon. So … ?

Matt: “What do you think the chances are of them expediting the arguments?”

Molly: “Honestly? Hope springs eternal. No matter what, whether it’s spring, summer or fall, we will be there, back on the California Supreme Court steps, and we will be watching that hearing. In some ways, it’s sort of a side-journey, because ultimately that case may be the one that’s decided on the constitutional merits and things are moving faster, the world’s moving forward. It’s a great suit, can’t have better legal advocates. So whether we win on standing or even better maybe the Constitutional issues, change is in the air for sure. And of course, we’re so lucky to have a front seat to so much that goes on here. But it calls us to be responsible for that, and to make sure that we show up and we represent our entire country on all of these issues, because this is where so much of it is happening. And the fact that Feinstein, our Senator, is now the one repealing DOMA! Huge! Totally exciting. California rocks.”

Oh yeah! Dianne Feinstein. We’re not even done talking about the major surprises this week. Senator Dianne Feinstein announced that she intends to introduce a bill to repeal DOMA. So even though there’s all these judicial challenges floating around, DOMA might disappear legislatively.

That’s a big deal for everyone, but especially for folks working towards immigration equality. The US continues to deport legally married spouses because of DOMA. For more on what that means, let’s check in with Lavi Soloway. He’s the founder of Immigration Equality and Stop the Deportations.

Matt: “So, Lavi, tell me about one or two of the binational couples that you’re representing. Before today, what was your strategy for fighting their deportation?”

Lavi: “Sure. We’re representing a group of about a dozen gay or lesbian binational couples, all of whom are married. And in each case, the foreign spouse is in deportation proceedings. And our strategy beginning last summer when the Defense of Marriage Act was struck down as unconstitutional in Boston by a federal court judge, our strategy has been to file I-130 petitions, which are marriage-based green card petitions, on behalf of those couples. And to fight for a halt in deportation while those petitions are being considered.”

Matt: “So, before today, what was the administration’s response to those petitions?”

Lavi: “Well until today, the expectation was that because of of the Defense of Marriage Act, those petitions would necessarily be denied. That all changed on Wednesday, though. Because if the administration, if we take the administration at its word that it truly believes that he Defense of Marriage Act is unconstitutional, it’s clearly acted consistently with that by withdrawing its defense from cases currently pending in the first circuit, we also expect them to exercise prosecutorial discretion, for example in the immigration cases, and not give effect to unconstitutional and discriminatory law, the Defense of Marriage Act. We now have two new voices arguing our position. President Obama and Attorney General Holder. And we believe that we will soon be able to expand our outreach effort to Secretary Napolitano and Secretary Clinton and try to bring in all government agencies that have discretion in how they deal with gay and lesbian bi-national couples, to try to put in some intermediate policy measures that will ensure that as DOMA is being dismantled, being relegated to history, that it does not any more have its pernicious discriminatory effect.”

Matt: “So one more bonus question: what do you think of Dianne Feinstein’s bill? Do you think it’ll have any impact on your work and whether it’ll have an impact on the Prop 8 cases, whether those’ll have an impact on her? How does this change the ecosystem?”

Lavi: “We’re really excited to see Senator Feinstein’s announcement on Wednesday that she’ll be introducing a bill in the Senate to repeal DOMA. It was followed the next day by Representative Nadler in the house, announcing that he would re-introduce the DOMA repeal bill, Respect for Marriage Act, that had 128 co-sponsors in the last Congress. We believe that this is extremely important because with a DOMA repeal bill pending in Congress, we’ll now have all three branches of government in unison all working towards the end of DOMA. Again, the executive branch declaring it unconstitutional, the Congress working to repeal it, and the Judiciary, which has so far struck it down as unconstitutional.”

Matt: “What do you think its chances are in Congress? With the election bringing so many Republicans into Congress, is it going to face a hostile reception?”

Lavi: “I think that the introducing a bill to repeal DOMA in the present Congress is a brilliant move, and a wise tactic. Not because we’re necessarily sure that we can count up enough votes to pass it into law, but because any bill like this typically takes a lot of work to build a foundation of support. In the last Congress, we saw 120 Democrats joining together to co-sponsor the Respect for Marriage Act. We hope we can top that number in this Congress and add a healthy group of Senators. Senator Leahy announced today that he would join Senator Feinstein as a co-sponsor. And this is the road to victory. It’s not necessarily a question of whether it would pass this year or next, but whether or not we can build on substantial support that exists in Congress, perhaps even expand this to become bi-partisan, and eventually pass it and repeal it. I think it’s very important that Congress take responsibility to repeal DOMA because in a sense that’s the branch of government that should be held accountable for passing it into law in the first place.”

Matt: “Right. Well Lavi Soloway, thank you so much for joining us.”

Lavi: “Sure.”

Okay. I think that’s everything with DOMA for this week.

Aside from AFER’s requests, the Prop 8 case was pretty quiet this week until Friday, when a clerk from Imperial County stepped in, and said that he wanted to defend Prop 8. They’ve tried this before, and they messed it up pretty royally. Maybe this time they’ll have more success. They only sure thing is that it means more delays.

Big headlines across the country this week: in Delaware, lawmakers anticipate introducing civil union legislation sometime next month. In Hawaii, Governor Neil Abercrombie signed civil unions into law, a long-fought battle that started 15 years ago with Baehr versus Miike — which, I told you we’d come back to that case. In Rhode Island, a new survey shows a majority support marriage equality, which as always, is our cue to recognize that Rhode Island, you’ve got style. And the Maryland Senate passed a marriage equality bill.

So start planning your wedding now.

To find out when marriage is coming to your state, subscribe to our weekly updates. And click over here to watch our recent episodes and get all caught up.

See you next week, at which point we may all be getting married.

February 28, 2011 at 10:15 am 72 comments

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