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New class-action lawsuit challenges DOMA as applied to immigration

DOMA trials

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.

You can read the complaint here and the press release here.


  • 1. Roque Neto  |  July 13, 2012 at 10:37 am

    Die Doma! Die!

  • 2. cooper888  |  July 13, 2012 at 10:52 am

    Good! We need to keep this pressure relentlessly!

  • 3. davep  |  July 13, 2012 at 10:54 am

    Excellent. Go get 'em!

  • 4. Richard Lyon  |  July 13, 2012 at 10:55 am

    I have felt that immigration status was the most seriously harmful consequence of DOMA. Since the DOMA dominoes seem to be falling, I hope this one goes along with the rest.

  • 5. davep  |  July 13, 2012 at 11:00 am

    BTW, did you guys see this article about a legally married same sex couple who had their engagement photo altered and used in an anti-gay campaign ad? It was done by none other than Eugene Delgaudio, the guy who runs the "Public Advocate" site, which has been listed as a bona fide Hate Group by the SPCL due to the extremely vile and hateful lies spread by his 'organization'. The SPLC is workign with the couple to sue Delgaudio.

    An interesting tidbit: The article points out that Delgaudio currently holds the office as head of the Board of Supervisors for Louden County Virginia ( !! ) What the hell is going on with the voting public??


  • 6. Matt N  |  July 13, 2012 at 11:05 am

    I'm a little curious what the point of this case is (maybe I'm naive). There's already a DOMA case before the 9th circuit, and there will probably be one (or two) before SCOTUS next term.

    Is there a worry that SCOTUS will strike down DOMA, except for immigration (seems unlikely)?
    Is this just to put added pressure and increase visibility?
    Or is there some legal reason I'm missing?

  • 7. Larry  |  July 13, 2012 at 11:17 am

    It's an interesting case, and the first one I've seen that is explicitly class-action (or requesting class-action status). But there's a few specific details in the case that concern me.

    1 – The Filipino plaintiff entered the US while in a common law marriage to a Filipino man. She apparently represented herself as married when she entered, but it doesn't say that she ever divorced the man. The court might have to decide who she is married to, her common law husband or her Californian wife. If the court deems the common law marriage valid, that would seem to invalidate most of her other complaints.

    2 – The plaintiff is applying for a employer sponsored green card, not a spouse-sponsored green card, that makes it different than the other DOMA immigration cases and might be grounds for not certifying a broad class.

    3 – Both Golinski and Dragovich are ahead of this case in the 9th circuit, though neither specifically deals with immigration. Also, a recent district court in California in Lui v Holder rejected a lawsuit against based on Adams v Howerton. Like with High Tech Gays, Adams is a case that should probably be struck down as obsolete by the 9th circuit, but hasn't yet, so it seems problematic to file another lawsuit in the 9th circuit. The plaintiffs live in California, so they didn't have any other option, unless they wanted to find other plaintiffs in non-9th circuit states.

  • 8. Sagesse  |  July 13, 2012 at 12:23 pm


  • 9. Sagesse  |  July 13, 2012 at 12:26 pm

    Re you point 1 – I don't think you need a divorce to end a common-law marriage… You just end it. Anyone else know?

  • 10. karen in kalifornia  |  July 13, 2012 at 12:50 pm

    This couple lives in California. There is no common law marriage in CA. Don't know if DeLeon and her then Pilipino common law husband came to CA when they came to the US. Still, no common law marriage recognized in CA so no "divorce" needed.

  • 11. Larry  |  July 13, 2012 at 1:08 pm

    I'm not an expert on it, but from what I found online (a) California does recognize common law marriages performed in jurisdictions that do recognize them (the websites I saw said it about common-law marriages in other states like Colorado or Iowa, but I think it would apply to other countries too), (b) whether a marriage is common-law or documented, it needs a formal divorce granted by a court, and (c), there's also the question of whether independent of California, the federal government recognized the common-law marriage when she immigrated. That seems to be the core of why they're accusing her of lying when she first entered the country.

    Admittedly, she got a marriage license in 2008 from California, so California at least must have been convinced that she was single and no longer common-law married.

    Also, we don't know enough about her life to ascertain how California, the Phillipines, and the US federal governments view her previous and current marriages.

  • 12. Don  |  July 13, 2012 at 1:56 pm

    A little bit of information about the Immigration Courts: First, they are NOT Article 3 Courts; they come under the Executive Branch. Immigration Judges now come under the Homeland Security office. Immigration law is filled with all kinds of "use of discretion" provisions. The Head of the Executive Branch (Pres. Obama) has told the people in the Executive Branch to "use discretion whenever possible (or words to that effect). Many of the Immigration Judges in California have been granting "continuances" to the next available Court date. The Immigration Courts are so backlogged that the "next available court date" is usually 2-1/2 to 3 years down the road. During this time the bi-national couple can stay together in the US.
    I hope this gives some new information on immigration in California.

  • 13. MightyAcorn  |  July 13, 2012 at 2:37 pm

    Re: the CA marriage license, the State wasn't "convinced" of anything, couples provide the data about previous marriages under oath on the marriage license application and the State takes them at their word (and people lie all the time, sadly.) The State doesn't verify or research the info, unless a divorce became final in the last 90 days to 2 years (depending on the county.) Incorrect data is usually only challenged after the fact, either by a private party or law enforcement action to invalidate the marriage. This could be an issue if Ms. DeLeon suspected she was still married when she applied for the CA marriage license…that's a big fat felony no-no.

  • 14. Mike in Baltimore  |  July 13, 2012 at 4:31 pm

    Pennsylvania does not allow heterosexual first cousins to marry, but if they legally marry in another state (such as Maryland), then move to Pennsylvania one day, one week, one year, one decade later, Pennsylvania recognizes them as a married couple. Many 'wedding chapels' along the Maryland/Pennsylvania state line can give multiple examples of people who were first cousins they married from Pennsylvania who immediately moved back to Pennsylvania, and their marriage was recognized by Pennsylvania.

    Common law marriage of heterosexual couples was legal in Pennsylvania until 2000 (the state thought it had eliminated it several years earlier, but found out it had not). If a couple had legally formed a common law marriage in Pennsylvania during the 20th century, then moved to California, their marriage would be recognized as legal in California, as it was legal under the laws of the state of Pennsylvania when formed.

    There was a case about a decade ago in Iowa, where a woman from the Middle East (Saudi Arabia, I believe) was in a marriage with a husband who had four wives (and she was not the first wife). There was a long discussion as to whether she could get a divorce in the US (or even if her marriage would be recognized in the US), or it had to be done in the 'home country'. I believe the hearing judge ruled that he could hear the case, and if the evidence showed necessary, he could issue the divorce. I believe he issued divorce documents, but I have no idea how any appeals went.

    The key seems to be not if such a marriage is legal in the state of current residence, but was it legal in the state where formed.

  • 15. Michelle Evans  |  July 13, 2012 at 6:34 pm

    The couple lives not far from Cherie and I here in Orange County, one of the most conservative bastions in the U.S. It's great to see this sort of case come out of The OC, but so very sorry that they are even having to do this in order to keep their marriage together. It has been getting a lot of local press coverage, which is again a very good thing to let people know this sort of discrimination exists. The lawyer was being interviewed yesterday on the radio and he stated the simple fact of this case that if they were a heterosexual couple this would never be a question. If that doesn't show that LGBT people require heightened scrutiny, I don't know what does.

  • 16. Prop 8 Trial Tracker &raq&hellip  |  August 24, 2012 at 10:34 am

    […] v. Napolitano is a challenge to Section 3 of the Defense of Marriage Act that was filed in July by the Center for Human Rights and Constitutional Law. It is a class-action […]

  • 17. Jennifer Walter  |  September 19, 2012 at 8:56 pm

    How could something that violates due process get implemented in the first place? I sure hope the Human Rights Center has a good class action lawyer. They're going to need all the help they can get.

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