July 13, 2012
By Scottie Thomaston
Yesterday, the Center for Human Rights and Constitutional Law filed a lawsuit challenging the Defense of Marriage Act as unconstitutional as applied to immigration benefits. The lawsuit says that Section 3 of the Defense of Marriage Act violates the Fifth Amendment’s guarantee of due process and equal protection because it hurts bi-national families:
According to the lawsuit Jane DeLeon, an immigrant from the Philippines, has been residing with her US citizen partner in California for twenty years and they were married in 2008. The lawsuit claims that DeLeon has been approved for an immigrant visa based on her employment. However, because she entered the country in 1989 using the name of her then common-law husband, to get lawful resident status she needs a “waiver” from the U.S. Citizenship and Immigration Service (“CIS”). Such waivers are commonly available to immigrants whose deportation would cause extreme hardship to a US citizen spouse. In DeLeon’s case the waiver was denied in September 2011 solely because she is married to another woman.
The complaint claims denial of immigration visas violates another statute as well, “8 U.S.C. § 1152(a)(2), which prohibits discrimination in the issuance of visas based upon a petitioner’s or an immigrant visa beneficiary’s “sex.”” And deporting DeLeon could bring real harm:
The conditions in the Philippines continue to be marked by rampant discrimination against women in general and lesbians in particular, criminalization of lesbians and gay men who show public affection, endemic poverty, substandard housing, and armed insurgency.
Plaintiffs’ relocating to the Philippines would have a catastrophic impact on plaintiff Rodriguez’s economic situation inasmuch as she would have to abandon her employment in the United States and seek employment in the Philippines where joblessness is endemic and wages perhaps 10-20 percent of what they are in the United States.
Plaintiffs’ relocating to the Philippines could significantly and adversely impact plaintiff Rodriguez’s medical condition because of inadequate available care there and the unavailability of prescription medications she is required to take. Plaintiff Rodriguez suffers from stenosis of the left brain that causes extreme pain, disorientation, and numbness. She also suffers hypertension. She may require surgery in the future to address her stenosis, and if her condition worsens rapidly, surgery may be required immediately.
And the complaint suggest laws classifying gays and lesbians should be reviewed under a heightened form of scrutiny:
DOMA on its face discriminates on the basis of sex and implicitly on the basis of sexual orientation. Such a law requires heightened scrutiny. A classification triggers heightened scrutiny when (1) the target group has suffered a history of invidious discrimination, and (2) the characteristics that distinguish the group’s members bear no relation to their ability to perform or contribute to society. In applying heightened scrutiny courts also have considered the group’s minority status and/or relative lack of political power, and whether group members have obvious, immutable, or distinguishing characteristics that define them as a discrete group.
And heightened scrutiny is warranted because it burdens the sanctity of families:
Heightened scrutiny is also warranted because DOMA unequally burdens plaintiffs’ constitutionally protected interest in the integrity of their families. By its sweeping reclassification of the plaintiffs as “single” or “unmarried” for all federal purposes, DOMA erases their marriages under federal law.