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Same-sex binational spouses challenging Section 3 of DOMA seek preliminary injunction against their removal or detention

DOMA trials

By Scottie Thomaston

Aranas 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 suit alleging DOMA’s unconstitutionality under the Fifth Amendment’s due process and equal protection guarantees as applied to immigration, and: “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.””

The plaintiffs have filed a motion for class certification, which would allow all plaintiffs to join as a class-action lawsuit. The class for which they are seeking certification is: “All members of lawful same-sex marriages whom the Department of Homeland Security, pursuant to § 3 of the Defense of Marriage Act, 1 U.S.C.§ 7, has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.” The filing notes that “[d]efendants stated they decline to take a position on this motion until after they have had an opportunity to review plaintiffs’ moving papers.” Defendants will have the opportunity to object to allowing the suit to proceed as a class-action.

Plaintiffs also filed a motion asking for “a preliminary injunction enjoining defendants, their agents and successors in office, pending final judgment in this case from —
1) removing or detaining plaintiffs DeLeon and Arenas and those similarly situated;
2) denying employment authorization to plaintiffs DeLeon and Arenas and those similarly situated;
3) denying benefits under the Immigration and Nationality Act (INA) solely because the immigrant has a spouse of the same sex; and
4) deeming plaintiffs DeLeon and Arenas those similarly situated inadmissible
pursuant to 8 U.S.C. § 1182(a)(9)(B)(i), where such persons would not have accrued more than six months in unlawful status but for § 3 of the Defense of Marriage Act, 1 U.S.C. § 7.”

The plaintiffs write that they are likely to succeed on the merits of their substantive due process claim because Section 3 of DOMA should be reviewed under heightened scrutiny, and there is no important government interest justifying it. And plaintiffs state that the issue raises serious equal protection questions, even if it is reviewed under rational basis. And lastly, [t]here is no question that plaintiffs and those similarly situated have suffered and will suffer irreparable injury should a preliminary injunction not issue.”

The case has been transferred to Judge Consuelo Marshall, the federal judge who is hearing another challenge to Section 3 of DOMA, Cooper-Harris v. USA, involving a military servicemember who is married to her same-sex spouse and seeking military spousal benefits. Cooper-Harris has multiple sclerosis and the military has determined her illness is service-related. That case will be moving forward as well, after the judge denied a motion to stay the proceedings a few weeks ago.

h/t Kathleen for these filings

Motion for provisional class certification:8:12-cv-01137 #13

Motion for preliminary injunction:8:12-cv-01137 #12

Notice that the case has been transferred to Judge Consuelo Marshall:8:12-cv-01137 #8

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