On June 26, 2015, the Supreme Court of the United States issued its opinion in Obergefell v. Hodges, and, in one ruling, made the LGBT right to marry the law of the land. All states must now issue marriage certificates to all American citizens seeking a life-time union, regardless of their sexual orientation. It is a landmark victory for the LGBT community and its allies that has been hard fought for decades. The legal history of same-sex marriage equality has been a long and rocky road, with inconsistent results in appellate courts from state to state.
Many commentators are glossing over just how close the LGBT community came to losing this war. After the pride parades and the celebrations that rang around the nation have simmered down, let’s not forget that the Supreme Court ruled 5 to 4 in favor of equal rights in gay marriage. 5 to 4 is by no means a landslide.
While many same-sex marriage advocates may feel the sense of emptiness that one does on the last line of a great novel, this decision merely leads to another chapter in the struggle for LGBT equality. Slavery was abolished in 1865, but Jim Crow laws lasted until 1965 and beyond. Women were allowed to vote in 1920, and yet, in 2015, only 20% of the United States Congress is female.
There is still much work to be done.
While our children may grow up in an America where same-sex marriage is matter of law, we still must confront frequent discrimination in the administration of law. Case in point, just three days after the Obergefell decision, the Attorney General of Texas, Ken Paxton, declared that if a county clerk or a public official has “religious objections” to issuing a marriage license to same-sex couples, they are entitled to deny such issuance.
The frightening fact is that people like Paxton are in positions of power. They are the decision-makers, or the legal authority, in deciding whether to grant a government benefit, a job, or an adopted baby to gays, lesbians, bisexuals, and transgendered people.
In immigration cases, for example, results for same-sex couples may differ from similarly-situated heterosexual couples depending on variations in personal and social values. Typically, the evidence of a good faith marriage, required in every marriage green card application, includes a couples’ illustrious dating history, or big weddings filled with familial love and acceptance. Where many gays and lesbians are still closeted because they fear rejection, discrimination, or even violence, how are same-sex couples supposed to produce comparable evidence of a good faith marriage? The reality is that the societal standards applied for assessing what a “real marriage” looks like remains skewed by traditional assumptions.
Another example involves those LBGT individuals in long-term relationships who are residing in this country illegally. Had the laws been different, they could have married their U.S. citizen partners and received a green card many years ago like any heterosexual couple. Although they are now are able to marry nationwide, immigration laws still present significant obstacles that would require the gay alien spouse threatened with removal from this country to submit an I-601 or I-601A waiver. Essentially, in order to cure their inadmissibility and ineligibility for a green card, this waiver must overcome the high bar that their U.S. citizen spouse would experience “extreme hardship” if the couple were forced to separate.
In terms of immigration, there are only 20 countries that recognize same-sex marriage. LGBT immigrants come to the United States to avail themselves to the protection of our civil liberties. Yet, for those who are filing for a same-sex green card, many are nervous about being judged based upon their sexual identity, rather than the strength of their spousal relationship. As such, can we really say that, as a nation, we truly have reached immigration equality?
To combat these specialized issues, same-sex immigration attorneys should focus on obtaining the highest-level of evidence and proof necessary to help the LGBT community truly achieve equal and fair results in their applications for green cards, asylum, visas, and other immigration benefits. While Obergefell is a historical case in the right direction, we understand the heavy burden in same-sex immigration. We assume that all things are not equal, just yet.
“A house divided against itself cannot stand.“~ Abraham Lincoln
A historical transformation is upon us. On January 16, 2015, the Supreme Court granted review to a string of state decisions in United States Court of Appeals for the Sixth Circuit. The Sixth Circuit decided that several states’ prohibitions on same-sex marriage are legal. Those states include Ohio, Tennessee, Kentucky and Michigan.
Three months ago, in October of 2014, the Supreme Court did just the opposite. It denied review to those states that insisted on their bans against same-sex marriage, whose bans were held to be illegal by the courts in their own states. By doing so, the Supreme Court effectively endorsed the state court decisions striking down such bans as unconstitutional. For decades now, since Bower v. Hardwick and Lawrence v. Texas, up to United States v. Windsor, 133 S. Ct. 2675 (2013), the highest Court of the United States struggled with the issue of gay rights; it had conservatively indicated that the gay right to marry is a choice that lies with the individual states.
In DeBower v. Snyder, the Sixth Circuit exploited Supreme Court’s reluctance to decide on this issue by citing Windsor and stating: “Respect for democratic control over this traditional area of state expertise ensures that ‘a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage’ can have free and reasonable rein.”
Certainly, by denying review in the cases that upheld gay marriage, the Supreme Court had likely hoped that the rest of the states would fall in line. However, the Sixth Circuit’s renegade decision has created a circuit-split that has brought the LGBT right to marry to the proverbial bridge that must be crossed.
Practically, if the Sixth Circuit decision is allowed to stand, it would divide the country into gay-marriage legal and gay-marriage banned states. Thus, a LGBT couple can have a valid same-sex marriage in California with all the ensuing rights, but lose all the state-regulated rights, like medical disclosure or step-parental rights if they moved to Tennessee. In terms of LGBT immigration, this divide creates an untenable and flawed work-around, where a same-sex couple who reside in a state that has banned gay marriage must go and marry in a state that has legalized gay marriage before they can apply for federal benefits such as a green card.
However, by deciding to review DeBower v. Snyder, the Supreme Court has finally chosen to take a position on this issue. Logically, as the Court had just endorsed the states court decisions that held in favor of the equal protection of gay marriage by denying review, it needed to do nothing more if it simply means to defer to the majority-rule or court decisions in each state. By agreeing to review the decision, we anticipate that Supreme Court intends to mend the divide and mandate an America that consistently recognizes the same-sex right to marry as a fundamental, constitutional right of a citizen.
Historically, this is the potentially the greatest leap in civil rights since Loving v. Virginia in 1967 that upheld desegregation in interracial marriages.
By Julie Oliver-Zhang, Esq. & Amanda Utterback, J.D.
On Tuesday, October 6th, 2014, a historical moment for gays, lesbians, bisexuals and transgendered individuals came to pass in America. The United States Supreme Court voted to not review the seven petitions requesting the consideration of a national constitutional right to same-sex marriage. This refusal by the Court to second-guess the state courts’ rulings striking down bans on gay marriage as violations of equal rights now permits gay and lesbian couples to marry legally in Virginia, Utah, Oklahoma, Indiana, and Wisconsin.
Significantly, the new law in these states also expands the immigration options for the global LGBT community. After yesterday’s decision by the Court, same-sex spouses and fiancé or fiancées from other countries can now apply for an American green card or non-immigrant visa after getting married in 24 states and the District of Columbia with legalized gay marriage.
Specifically, thirteen states have now legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, New Mexico, Oregon, Pennsylvania, Virginia, Utah, Oklahoma, Indiana, and Wisconsin); eight through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and the District of Columbia); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington).
Currently, gay marriage equality is still in limbo in seven states, pending state court appeals (Arkansas, Colorado, Florida, Idaho, Kentucky, Michigan, and Texas). We hope to soon add these states to the list of jurisdictions that will welcome foreign immigrant same-sex spouses.
Because the status of gay marriage is still uncertain in these seven limbo states, our recommendation is that gay couples should get married in one of the above 24 states in order to ensure access to the new, available federal immigration benefits. The new laws can help even those undocumented or illegal gay, lesbian, and transgender immigrants who have been deprived of legal status for years. Those who have entered the United States illegally or overstayed their visas can legalize their status through a good-faith marriage to a U.S. citizen, if they receive appropriate I-601 waivers that forgive various types inadmissibility.
As new laws and legal issues regarding gay immigration rights continue to evolve, the LGBT attorneys at Oliver-Zhang Law are able to assist in legalizing same-sex immigration status. Please contact us today for a free consultation.
By Julie Oliver-Zhang, Esq. & Amanda Utterback, J.D.
Next week, the United States Supreme Court will decide whether it will weigh in on the validity of a national constitutional right to same-sex marriage. While the implications of this decision for gays and lesbians in America are immediately apparent, it is also important to understand its significance to the global LGBT community.
Currently, a minority of states recognize legal gay marriage. This dramatically limits the immigration options for LGBT clients. For instance, same-sex spouses from other countries are unable to apply for a green card or non-immigrant visas in America, unless the couple was married in one of the 19 states, the District of Columbia, or a foreign country that recognize same-sex marriages.
Specifically, eight states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, New Mexico, Oregon, and Pennsylvania); eight through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and the District of Columbia); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington).
However, even if the Supreme Court decides on Monday to not review any of the five marriage equality cases requesting certiorari, Lyle Denniston, advisor at the National Constitution Center, notes that the silent assent would increase the number of states recognizing legal same-sex marriage from 19 to 30 states. This would broaden the accessibility and availability of federal immigration benefits to more international gay and lesbian fiancés and spouses.
But, the Supreme Court’s potential refusal to review the cases can prolong the denial of fundamental rights to gays and lesbians, such as the parental rights to step-children, immigration benefits, or simply being allowed on the same lease. LGBT supporters agree that the simple act of delaying a consistent legal standard on gay marriage causes real harm to gay couples.
The Supreme Court has a chance to end the prejudicial bans on legal same-sex marriage in states that continue to discriminate against gay, lesbian, bisexual, and transgender couples. One of the global consequences of the Court recognizing a national constitutional right to marriage equality would be that same-sex couples across America will finally be able to enjoy the same immigration benefits afforded to all other American citizens, without having to decide which state they must travel to in order for the federal government to recognize their marriage and issue the foreign spouse a green card if their home state is not a same-sex marriage state.
As new laws and legal issues regarding gay immigration rights continue to evolve, the LGBT attorneys at Oliver-Zhang Law are able to assist in legalizing same-sex immigration status. Please contact us today for a free consultation.
By Julie Oliver-Zhang, Esq.
Is American law ready to be homophobia free? We see the indicators of social mores in the laws of a nation and its popular culture.
The United District Court for the District of Idaho held on May 13, 2014 that the ban on same-sex marriage in Idaho is unconstitutional. As the newest addition to a series of judicial decisions overturning state laws that ban gay marriages, the Idaho ruling began with a vindicated quote from Justice Blackmun, who dissented in Bower v. Hardwick that outlawed sodomy in Texas in 1986:
It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.
— The Honorable Harry Blackmun
Idaho Federal Magistrate Judge Candy Wagahoff Dale urged:
The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.
Gay rights activists are buzzing as this is the second court decision in the month of May to strike down a state’s constitutional amendment restricting legal marriage to a man and a woman. On May 9, 2014, the Circuit Court Judge of Pulaski County, Arkansas eloquently compared the ban on same-sex marriages to the once-outlawed interracial marriages in the 1960’ and ordered the revocation of the state’s same-sex marriage ban:
The difference between opposite-sex and same-sex families is within the privacy of their homes. . . . It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.
The opponents call these judges “judicial activists”, a derogatory term in the legal profession to denounce judges who ignore the democratic, legislative process and make laws of their own despite the mandated votes of the majority.
The celebration seemed short-lived in Arkansas, as counties have all stopped issuing marriage license to gay couples after speaking with county attorneys representing the position that the ruling did not address a separate state law that prohibits county clerks from issuing marriage licenses to same-sex couples.
In terms of LGBT immigration, this threw cold water on the same-sex couples in the “bible-belt” vicinity who watched 450 gay couples receive permission to marry in the last week. These same-sex couples who intended to apply for legal green card status through family immigration thought that they too can apply for a valid marriage license in Arkansas and become legally married. Now, much like a repeat of what occurred in Utah earlier this year, where nearly a thousand marriage licenses were granted before county clerks were barred from continuing to do so, the legal status of gay marriages in Arkansas is in limbo.
However, as United States Attorney General Eric Holder had announced earlier in the year, the federal government firmly supports the equal rights of LGBT families. It is most likely that Attorney General Holder will direct the Department of Homeland Security and the USCIS to recognize those same-sex couples who were validly married in Arkansas and issue immigration benefits accordingly.
Also in the news is Michael Sam, the first openly gay player drafted to the NFL, who kissed his boyfriend on national TV. The NFL is arguably the most machismo institution in American sports; drafting an openly gay player is progress that cannot be understated. Even so, following the broadcast, former Super Bowl champion Derrick Ward tweeted: “Man U got little kids lookin at the draft. I can’t believe ESPN even allowed that to happen.” These are some signs of our popular culture that highlight the rejection of the LGBT community, currently embodied in the unequal state marriage laws.
What does the same-sex marriage rulings in Arkansas and Idaho have in common with Michael Sam’s kiss? The judges’ persuasions in law and those who believe the televised kiss is a step in the right direction in our popular culture are appealing to the sensibilities of the American public to stop averting our gazes from gay and lesbian relationships, and to give their love equal validation and standing. The conservative backlash in law and popular culture from the vestiges of discrimination is resound, though it certainly will find reconciliation with time as with any outdated prejudices. The judges are not simply attempting to deal with hard letters of the law, but speaking directly to the heart of the American public’s way of thinking about gays and lesbians as simply people, rather than a class of persons who somehow deserve to be bullied and shamed by the community. We will know that we have achieved equality and become a more humane society when Michael Sam’s kiss is no more than a sweet moment of celebration with family, and the Supreme Court holds consistently with Windsor in revoking the state bans against same-sex marriages as unconstitutional.
Eighteen jurisdictions, including 17 states and the District of Columbia have currently legalized same-sex marriage: Six states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico); eight through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and the District of Columbia); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington).
Nine states with court decisions revoking same-sex marriage bans based on unconstitutionality are pending review of the United States Supreme Court, including: Utah, Virginia, Texas, Oklahoma, Kentucky, Arkansas, Idaho, Michigan, and Ohio.
This brings a total of 27 jurisdictions that have shown legal support for same-sex marriage, over half of the United States.
FOR IMMEDIATE RELEASE
June 12, 2014
Super Lawyers Names Julie Oliver-Zhang as Top Attorney and Rising Star in Washington Post Magazine
WASHINGTON – Julie Oliver-Zhang has been named by Super Lawyers in the Washington Post Magazine as one of the 2014 Top Attorneys and Rising Stars. Ms. Oliver-Zhang was recognized by peers for excellence in the legal community, and impressive records of professional achievements and ethical standards. Rising Stars are among the finest attorneys who are either 40 or younger, or in practice for 10 years or less.
Ms. Oliver-Zhang was the only Chinese-American partner to receive the coveted 2014 Rising Star, Top Attorney award with practice areas in immigration, personal injury, and medical malpractice. Less than 2.5 percent of attorneys in the Washington D.C. Metro area receive the Rising Star award, with Ms. Oliver-Zhang as one of only four others recognized under immigration law.
“What sets her apart and sets her above is her determination. I feel deeply sorry for any obstacle that gets in the way of this irresistible force. As my protégée, I am very happy that I will never have to litigate against her.”
– Ellen Sue Shapiro, former Senior Litigation Counsel of the Justice Department, Civil Division
“I often marvel at her kind, empathetic approach to addressing every client’s needs. Her talents led her to resolve landmark cases against the biggest drug companies in America.”
– Justin D. Gillenwater, Immigration Attorney and former Member of the Board of Director for OCA-Asian Pacific American Advocates Greater Houston
As Founder and Managing Partner of Oliver-Zhang Law, Ms. Oliver-Zhang provides exceptional legal services from personal injury to same-sex marriage immigration cases, which have seen growing demand. Ms. Oliver-Zhang has successfully represented clients in pharmaceutical product liability, personal injury, family immigration and same-sex marriage green cards, asylum, Violence Against Women Act (VAWA), child custody, domestic violence cases, and Foreign Corrupt Practices Act (FCPA). As a native Mandarin-Chinese speaker, she has a special interest in representing those without legal access due to language barriers.
Ms. Oliver-Zhang commented: “I am deeply honored to receive these awards along with such a stellar group of leaders in the legal profession. Oliver-Zhang Law is here to fight for our clients’ best interests, no matter how great the challenge. As a first-generation immigrant, I learned to work hard, be empathetic, cherish the relationships you build, and take every opportunity to succeed. Our practice is centered on dedication to client care, communication, and service; we are fierce about doing everything in our power to accomplish our clients’ goals.”
Thompson Reuters produces the Super Lawyers rating service of outstanding lawyers in over 70 practice areas who have attained a high degree of peer recognition and professional achievement. Super Lawyers serves as a resource and method for consumers when researching legal representation.
Oliver-Zhang Law was founded in 2013 and built upon the drive to remedy injustice and help those in need. Practice areas include personal injury, immigration, LGBT immigration, medical malpractice, FCPA, and Chinese document review. Please visit www.oliverzhanglaw.com for more information.
PDF version available here.
In many cultures, the topic of sexual orientation is still a taboo subject, even among close family and friends. Most countries have not legalized same-sex marriage. In Russia, for example, gays and lesbians still face extreme discrimination and persecution. Just last May, Chinese government arrested LGBT activists who were handing out flyers during International Day Against Homophobia, Biphobia and Transphobia (IDAHO) in Guangzhou, China.
As a result, cultural barriers can make it difficult for ethnic and racial-minority LGBT community members to be informed about their rights to receive permanent residency status and other immigration benefits in the United States. There are very few law firms or attorneys that are attuned to the special needs of the immigrant LGBT community.
Julie Oliver-Zhang, founding partner at Oliver-Zhang Law, especially understands the difficulties that gay and lesbian Chinese immigrants can face in achieving legal status in the US. “As someone who immigrated to the United States at a young age, my family dealt with frequent difficulties with language barriers and inferior treatment from the most mundane customer service issues to not being able to get legal help,” says Oliver-Zhang. “My goal is to provide a safe space for LGBT Chinese immigrants and be a resource for those who want to stay in the US permanently. How wonderful would it be to reunite families and loved ones? We hope that LGBT couples around the world will be able to benefit from the new, equal immigration laws.”
Recently, Oliver-Zhang Law published an article in the Chinese World Journal, the largest Chinese language paper in the United States. The translation of the text of the article is below and can be found at http://tinyurl.com/nsalp4d
“On June 26, 2013, the United States Supreme Court in a 5 to 4 decision held Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. Same-sex couples are now entitled to the same marital federal benefits as opposite-sex couples. Thereafter, President Obama and Secretary of the Department of Homeland Security, Janet Napolitano, both welcomed the decision of the Court and promised that federal benefits for same-sex, legally married couples will be implemented swiftly, smoothly, and equally as opposite-sex spouses. On January 10, 2014, Attorney General Eric Holder stated with regard to Utah’s same-sex marriage ban: “Last June, the Supreme Court issued a landmark decision in United States v. Windsor, holding Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step towards equality for all American families.”
Currently, same-sex marriage is legal in 16 states and the District of Columbia. For those who have endured prevalent discriminatory laws in the LBGT community, this decision is not merely a progressive symbol of equality for gay rights, but it has for the first time, enabled same-sex couples to apply for immigration benefits.
Until recently, obtaining immigration benefits, such as visas and green cards through same-sex marriage, was highly unlikely. Most same-sex marriage immigration benefit applications were rejected. The effect of the Windsor decision, however, was definitive. Four days after the Supreme Court’s decision, gay couple Julian Marsh and Traian Povov received their notice for green card approval. In another case, an American citizen applied for immediate family immigration for his spouse who was illegally present in the United States. The immigration court initially began deportation proceedings against the foreign spouse, but the removal proceedings were terminated after the repeal of DOMA.
Attorney Julie Oliver-Zhang explains that gay, lesbian, bisexual, or transgender same-sex couples are eligible for immigration benefits even if they reside in a state that has not yet legalized same-sex marriage. If one spouse is a green card holder or a U.S. citizen, then marriage in one of the 16 states or D.C. that has legalized gay marriage will meet the requirements for the application of immigration benefits. Same-sex couples do not need to establish state residency, but merely get married in a legal gay marriage jurisdiction to be immediately eligible for green card or visa benefits for foreign spouses and their children. Depending on the circumstances, even if the foreign same-sex partner has illegally entered or resided without documentation in America for a number of years, they may still qualify for a green card.
Same-sex partners of U.S. citizens who are living abroad are eligible for fiancé or fiancée visas that will allow them to quickly travel to the United States and get married. Once the foreign spouse obtains permanent residency and become American citizens, they can apply for immigration benefits for their immediate relatives, such as parents and siblings. With the change in the new immigration laws, foreign LGBT partners can finally be reunited with their families.
The new immigration rights is a positive step towards remedying a history of discrimination against same-sex couples, allowing those in the LGBT community to achieve the American dream through swift and effective immigration processing.”
If you have questions regarding same-sex green card or other immigration matters, please feel free to contact Oliver-Zhang Law for a free consultation at 202-643-1110, or Help@oliverzhanglaw.com. We provide professional, caring counsel to the Chinese community.
【纽约讯】2013年6月26日，美国最高法院以一票之差，判定美国联邦婚姻保护法违宪，因而合法婚姻的同性伴侣从此能享受到与异性伴侣相同的联邦福利。随后，美国总统欧巴马和国家安全部长Janet Napolitano都先后发表声明，欢迎美国最高法院的裁决，并承诺将确保合法同性婚姻能像传统异性婚姻一样迅速快捷地获得联邦福利及移民权益。 2014年1月10日, 美国司法部长Eric Holder 在关于美国犹他州同性婚姻的禁令公开宣布,「美国同性婚姻享有平等的保护，依法平等对待。这项历史性的裁决为所有美国家庭走向了平等的一步。」
在此之前，通过同性结婚获取合法移民身份的希望十分渺茫，其中大部分的申请都遭到驳回。该判决效果显著，仅仅在联邦最高法院作出决定4天以后，已婚同性伴侣Julian Marsh和Traian Povov便收到了绿卡申请通过的通知。先前，一位美国公民为同性伴侣申请家庭移民遭拒，因而其外籍丈夫被列入递解程式。得知婚姻保护法违宪后，移民法官立即终止了相关法律诉讼。
詹久谊律师解释, 身处同性婚姻不合法州的同性伴侣也不用为如何注册结婚而担心。只要其中一方为绿卡持有者或美国公民，在同性婚姻合法的16个州或华府结婚，不用长久居住, 即符合移民法要求，并可为同性伴侣和孩子即刻申请绿卡移民。虽然同性伴侣也许数年非法居留在美国，根据情况, 他们也可能有资格获得绿卡。身处异国而分居的同性伴侣可靠未婚夫, 未婚妻申请签证来美结婚。外籍同性伴侣持有美国永久居留权后可为亲属, 像父母和兄弟姐妹,申请移民签证。今后, 外籍同性伴侣和配偶及亲属可在美国相聚团圆。同性婚姻伴侣移民平等的权利, 改善了长久歧视的遭遇，让许多同性伴侣亦可凭借高效快捷的新亲属移民，实现美国梦。
如果您有关于同性伴侣婚姻绿卡等相关移民事务，欢迎与詹久谊律师事务所联系, 免费咨询202-643-1110 或电子邮件Help@oliverzhanglaw.com. 我们的网站是www.oliverzhanglaw.com。我们为您提供细心专业的中文法律顾问服务。
Read more: 世界新聞網-北美華文新聞、華商資訊 – 同性婚姻伴侶快捷綠卡申請新思路
By Julie Oliver-Zhang, Esq.
February 26, 2014
“Equal treatment of all individuals under the law is not merely an aspiration, it is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”
Our LGBT clients often ask our attorneys if they can get married in their home states and then apply for immigration benefits, such as a green card or non-immigrant visas for their spouses. Often, the answer to that question is “no”, because the majority of the states still have not legalized gay marriage. We counsel them to get married in one of the 17 states and the District of Columbia that have recognized legal gay marriage and then file for legal immigration status for their spouses. We also have to be careful of civil unions and domestic partnerships because they may not be legal marriages in the eyes of the USCIS. This contrived work-around is not only an inconvenience, but a testament to the broad legal inconsistencies within the United States when it comes to the issue of gay marriage and immigration. However, the prejudicial laws against gay, lesbian, bisexual, and transgender same-sex couples have been falling like dominoes in the series of lawsuits filed across America challenging these unjust same-sex marriage bans. Since December of 2013, Federal Judges in Utah, Oklahoma, Virginia, and Texas have all invalidated the same-sex marriage bans in their states as unconstitutional. As the momentum builds, these decisions are now all stayed and awaiting the decision of the Supreme Court. After Windsor, the Supreme Court may be hard-pressed to hedge on a clear ruling on the existing same-sex marriage bans across the United States.
Texas Ban Revoked: Tradition is no Excuse to Deprive Gays of Dignity in Marriage
On February 26, 2014, federal Judge Orlando L. Garcia held that “Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process.” The gay couples involved in the case, De Leon, et al., v. Perry, et al., No. SA-13-CA-00982-OLG, were in loving, committed relationships for years. Three of the plaintiffs served in the military, and one was an honorably retired Major. The married lesbian couple, de Leon and Dimetman, had to undergo expensive legal proceedings in order to become parents. Texas law considered the legal spousal status conferred to those gay marriages sanctioned in other states to be void. Although de Leon was their child’s biological mother, Dimetman had to formally adopt the child in order to become a legal parent.
The Texas federal court recognized marriage as a fundamental right. By denying LGBT couples the fundamental right to marry, Texas denied their relationship of the same status and dignity as those who are permitted to marry. Gay and lesbian married couples have suffered real injuries, including “far-reaching legal and social consequences, along with the pain of humiliation, stigma, and emotional distress.” The Court also defeated the argument of tradition, and explained that “tradition alone cannot justify the infringement on individual liberties.” Same-sex married couples are entitled to the same legal, social, and financial benefits of marriage that opposite-sex couples enjoy. The Court stated: “Equal treatment of all individuals under the law is not merely an aspiration, it is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society.”
Setting a Trend of LGBT Equality in Immigration and Other Rights
The Texas decision follows on the heels of Attorney General Eric Holder’s historical policy memorandum issued on February 10, 2014, ensuring that post-Windsor, federal benefits, including immigration benefits such as green card and non-immigrant visa benefits, are extended equally to all legally married same-sex couples. All levels of the Department of Justice employees are instructed to the equal treatment of married gay, lesbian, bisexual, and transgender couples: “The Department is committed to ensuring equal treatment regardless of sexual orientation, and to using every tool and legal authority available to combat discrimination and safeguard the rights of all Americans.”
This powerful, indubitable policy statement illustrates President Obama’s clear mandate on eliminating unconstitutional discrimination against same-sex couples. In recent remarks, Attorney General Holder boldly counseled state attorney generals to actively refuse to challenge a federal court’s decision invalidating same-sex marriage bans if they believe the ban to be unconstitutional.
The latest Texas decision in one of the most conservative jurisdictions in America is a huge victory for the LGBT community. It is perhaps imaginable that in the near future, lawyers will no longer have to advise gay and lesbian couples who require immigration benefits like green cards or cancellation of removal proceedings to marry in another state.
As always, if you are seeking assistance with gay immigration issues, please contact our LGBT attorneys at Oliver-Zhang Law for a free consultation.
June 15, 3014
By Julie Oliver-Zhang, Esq.
Victory was celebrated this Tuesday by gay rights supporters as Oklahoma joined one of two other federal courts, Utah and California, which have struck down a ban against same-sex marriage as unconstitutional. In the decision, Judge Terence C. Kern of United States District Court for the Northern District of Oklahoma, using a rational basis review, held that:
“Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification. First, Part A’s disparate impact upon same-sex couples desiring to marry is stark. Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group . . . . moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.”
One of the two plaintiff lesbian couples, Susan Barton and Gay Phillips, own a company that provides vocational training to homeless teens. Barton is an adjunct professor at Tulsa Community College and Phillips has a doctorate in sociology. They have been in a committed, loving same-sex relationship for thirty years. In order to legitimize their relationship, they had joined hands in matrimony three times. The first was in a civil union in Vermont in 2001, then in Canada in 2005. They again received a marriage license in California in 2008. Like the Barton couple, many other same-sex couples have to marry outside of the state where they reside in order to qualify for federal benefits, such as the right to immigrate and receive green cards that was made available by Windsor in 2013.
On the heels of the Utah same-sex marriage freeze, Judge Kern had stayed his decision also pending appeal, although Attorney General Holder has affirmed in his recent video statement that all those LGBT couples who did manage to get married in Utah before the freeze are absolutely eligible for federal benefits. This means that until the appeal is resolved, same-sex couples cannot legally get married and receive marriage licenses in Oklahoma.
Thus, the practical implication of the decision for gay, lesbian, bisexual and transgender couples who are in need of immediate immigration benefits is that they still must get married in another state or country that had legalized same-sex marriage. USCIS has announced that it is the law of where the marriage was conducted, and not where the gay couple resides, that matters when it comes to the issuance of immigration benefits. With foreign fiancée or spouses who have lived together and perhaps unlawfully present in the United States for decades because they are unable to receive legal status prior to Windsor, they can now contact an experienced LGBT immigration attorney to discuss their green card and inadmissibility waiver options. Often, cases involving illegal aliens in same-sex marriages require professional assistance because the penalty can be deportation and permanent bar from re-entering the United States.
Yet, the tidal wave of equality for same-sex marriage is undeniable. As Judge Kern eloquently concluded in his order:
“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. . . . Equal protection is at the very heart of our legal system and central to our consent to be governed.”