The Defense Of Marriage Act: End unconstitutional tyranny upon individual rights and the rights of immigrants.

By Guest Blogger, Andrew Ryan

Immigration legislation unfairly discriminates against binational LGBT couples in the United States, placing unconstitutional hardships before them by refusing toLGBT Liberty and Justice Kissing  validate the contractual validity of their relationships and exposing them to deportation and separation, traumatic hardships which their heterosexual counterparts do not have to face.

Based on census data from 2000, Immigration Equality has estimated that there are approximately 36,000 same-sex binational couples in the United States. Over 45% of these couples have children [1]. Furthmore, in 79% of said binational families, the non-citizen partner is from a country that doesn’t provide immigration benefits to these couples. The situation therefore becomes one in which each partner is completely unable to offer sponsorship for a process of naturalization common to most heterosexual marriages in which the spouse is able to provide a permanent means of residence for the spouse[2].

In a heterosexual binational marriage in the United States, if an American citizen were to marry a foreign national of the opposite gender, the aforementioned national is eligible for a process of naturalization. Should they reside outside of the United States prior to the matrimonial contract, they may enter the United States through a special ‘fiancĂ©’ visa known as the K-1 Visa. Once married, they may file for adjustment of status and enter the Green Card process. While often a long and protracted process, if the marriage is not fraudulent a spouse is granted naturalization status in a time period between three and five years[3]. This process is unattainable for same-sex binational couples thanks to the Defense of Marriage Act.

The Defense of Marriage Act (from here on referred to as DOMA) was signed into law by President Bill Clinton on September 21, 1996. Section 3 of the Act amends Chapter 1 of title 1 of the United States Code in the following manner:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.[4]

Once passed into law, DOMA proceeded to completely annul the possibility of any committed binational same-sex couple, should they marry in a state which allows for same-sex marriage, to initiate naturalization procedures- effectively preventing one spouse from sponsoring the other for a Green Card. The resulting scenario thus forces binational same-sex couples to exist in a state of uncertainty that no other kind of relationship in the United States has to undergo. Due to the current state of immigration policies, most legal immigrants have a slim chance of attaining a coveted Work Visa, and few have the significant funds to qualify for an Investor’s Visa[5]. In a struggle to remain together, most couples resort to enrolling the foreign partner in an educational institution for an F-1 Visa. A scenario that is echoed all throughout the country is that of Frances Herbert and her Japanese partner, Takako Ueda. Featured in an article on the Brattleboro Reformer, in order to remain with her partner Ueda had to obtain a student Visa: “Ueda enrolled in classes at Keene State College soon after arriving in the United States despite the culture shock and her limited grasp of English. Last year she earned her third degree in 10 years. With the expiration of her visa looming, Ueda said she exhausted every possible avenue, looking for a way to remain with her partner.[6]

The issues with the student scenario are worsened by the prospect of financial drain: international students under an F-1 Visa never qualify for in-state tuition and thus must pay out-of-state prices throughout the length of their degrees. That brings the cost of a full academic year at an institution such as the University of Colorado in Boulder to $44,560 per year[7], and $20,000 per year at a community college such as Colorado’s Front Range Community College[8]. Students must take a full course load, or have their Visa status revoked. If this by itself were not daunting enough a price to meet on a yearly basis, two facts make the situation even more forbidding: International students do not qualify for most available scholarships or financial aid, and they are not allowed to work outside of campus to supplement their income under penalty of revocation of status.[9]

Further complicating the situation is the fact that on-campus employers often prefer students who qualify for the Federal Work Study program, as it essentially provides them with students whose earnings are paid for by federal funding.[10] As expected, international students do not qualify for Federal Work programs, and as such the available positions open to them are few and far between. An international student may apply for authorization to work off-campus, but only if: (a)they can prove financial hardship, (b) that their workload will not affect their academic performance and (c) they have been in the United States for at least one full academic year.[11] Approval for off-campus employment is good for one year, and If the student wishes to continue off-campus employment, they must reapply- which can result in a revocation of status under the argument that the student should not be in the United States if they cannot support their education. As Ueda’s scenario demonstrates, this is a state of affairs that can only be temporary, as the international student must put all productivity on hold and drain their financial resources until they can no longer finance their education. Eventually after several degrees, Immigration authorities will suspect the student of ‘Immigrant Intent’ and deny any further visas.

Outside of the extremely costly Investors’ Visa, there are no Visas that allow a foreigner to be self-employed. Even should a foreigner be able to obtain the much-coveted and seldom-awarded H-1B work visa, they cannot be self-employed and earn additional income: doing so will render them out-of-status.

Eventually, and in the majority of cases, money runs out or visas stop being renewed due to suspicion of “immigrant intent”, the quest for the H-1 Visa Grail fails, and the inevitable outcome looms ever closer: every one of those 72,000 individuals faces the choice of being forcibly separated from their longtime partners. Most of these couples have been together for years and even decades, and find themselves leaving behind splintered lives and the deafening absence of the other. This reality is so foreign to the average American that he or she may fail to fully comprehend the enormity of it, and a dramatization may be necessary to paint the full image: Imagine that the person whom you have chosen as your life partner, whose life you have decided to share, whose habits have been integrated into yours, whose tastes, companionship, histories and background have become as part of your own history as your birthplace and family have, is removed by force from your life and sent to a remote location by a government that does not consider your relationship a valid one. You are left with only two options: Seek a means to be re-united with your partner on American soil (unlikely after deportation or expiration of status), or abandon the country and place of your birth in favor for their country – but only if their country recognizes your relationship. If that is not the case, neither of you have recourse to repair your forcibly-shattered life.

While an emotional appeal may be powerful enough to elicit sympathy in cases such as these, Americans need to realize that the issue is far from being simply a question of emotions- but that these cruel and tragic circumstances have been brought about by the deliberate violation of constitutional principle and individual rights. The formulation of the Defense of Marriage Act was introduced at a crucial time in United States in which it was expected that Hawaii and other states would legalize same-sex marriage. Opponents, members of the Religious Right movement, became keenly aware that under the 14th Amendment, other states would be obligated to uphold matrimonial contracts from such states, and thus open the floodgates for further marriage reform in other states. Hence, DOMA was drafted as a measure by which the Religious Right could bypass the issue and be able to define the concept of ‘marriage’ as it applies to all United States citizens.

We may find a telling example of the exposed principle that drives the political crusade by examining the rhetoric of Stand For Marriage Maine (SFMM), a subset of the National Organization for Marriage, a non-profit established in 2007 to prevent the legal recognition and acceptance of same-sex marriage in the United States[12].

During its campaign to defeat a same-sex marriage proposition in Maine, SFMM posited on its website: “If Question 1 fails and LD 1020 is allowed to take effect, marriage will be redefined to be about any two consenting adults without regard to gender, the focus being only about what the adults want for themselves, and not what is best for society as a whole. If allowed to take effect, LD 1020 would throw to the trash heap Maine’s decades-old interest in traditional marriage and legalize homosexual, genderless marriage.[13]

The assumption that rhetoric such as SFMM smuggles as an accepted claim is it is proper for government to restrict the right of an individual to enter into a contract of his own choosing with another individual. Furthermore, the sentence insinuates that it is perfectly within the rights of a sufficiently agitated majority to restrict other individuals from entering into a specific kind of contract (in this case, a civil marriage contract) simply because they are in disagreement with it. This, in fact, is not true at all: as long as the terms of the contract and its actions do not violate the individual rights of others, individuals are protected by the principles individual rights– they are free to enter into a marriage contract or other kind of contract if they so desire.

For the citizenship to have the power to prohibit a couple of the same sex from entering into said contract, there would have to be an explicit right to specifically delimit relationships of third parties. No such right exists and no such right could exist because its philosophical and legal repercussions would be devastating upon individual liberties: with these principles put into practice, one group may prohibit a set of individuals from entering into a contract of marriage because of religious grounds, racial grounds, public opinion, et cetera. Specific provisions by the Constitution protect the rights of the individual from the use of coercion by government on a federal or state level.[14]

To be specific, SFMM and DOMA’s rhetoric specifically violate the 14th amendment of the Constitution which guarantees equal protection (emphasis added):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[15]

The intent to violate equal protection is evident in the fourth line of SFMM’s website excerpt: ‘The focus being only about what the adults want for themselves, and not what is best for society as a whole.’ Upon reading this excerpt it behooves us to ask: who is ‘society’? What rights does ‘society’ have that it supersedes the rights of the individual? In this example, just as in all other examples of arguments using ‘social theory’ rhetoric throughout the ages, same sex couples are not part of ‘society’ and their benefit is not part of ‘what is best for society.’ The main intent consists solely on denying or imposing a course of action upon a third party simply because a majority has decided it must be so, without any necessary proof other than testifying that they ‘speak for society,’ and in this particular species of argument “society” always happens to be everybody but the parties being coerced. On this principle of ‘social theory’ at work, Rand said that “Although it claims that its chief concern is life on earth, it is not the life of man, not the life of an individual, but the life of a disembodied entity, the collective, which, in relation to every individual, consists of everybody except himself.[16]

There are no special rights that are conferred when two or more people are gathered together against a third party- each individual has his own rights, which are no different from any of the rights those around him hold. The argument from social theory would have you believe that consensus equals truth, but that is not the case: Society is not a beast apart from the individual unit (it is, in fact, nothing more than an abstract concept that subsumes the total sum of individuals living within a specific social framework)—what is good for the individual is what is ‘good for society’, and what is good for the individual is to have his individual rights respected and enforced: to impede two individuals from defining their relationship in legal terms is infringing those rights.

There is a large and intentional confusion when it comes to the term ‘marriage’ as it is applied to the non-ecclesiastic function of two individuals signing a legal contract with the intent to share their assets and their lives. Opponents of same-sex marriage have used this tactic over and over again, obscuring the nature of the argument to muddle the definition of what exactly is being discussed. Opponents of same-sex marriage use charged rhetoric in order to emotionally confuse ecclesiastic marriage, the ceremony by a religious officiator unites the couple in question before their shared deity, with contractual civil marriage. This is, in fact, not the case, as the entities of civil marriage and religious marriage are separate and it is impossible to treat them as a single entity: one is a legal contract, the other one a religious ritual, and neither has any effect on the other by virtue of the first amendment to the Constitution. The contract that a couple signs when marrying through City Hall is, in fact, a civil union, regardless of the specific genders of the couple in question.

A marriage contract, such as is performed through the government, is a contractual agreement whereby two individuals mutually promise to live together as a legally interrelated whole for life, or until the legal termination of the relationship. Rand, arguing on the principle of government, observed that “the only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, to settle disputes by rational rules, according to objective law.[17]” The proper role of a rights-respecting government therefore is contradictory with the aims of NOM, SFMM and ultimately the mandates established by DOMA: third parties do not have the right to delimit the legal relationships into which consenting individuals enter, and neither does the government have the right to exercise one of its primary functions (the upholding and defense of contractual agreements) based upon a religious principle. The first amendment to the Constitution reads (added emphasis):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[18]

The first clause, commonly referred to as the establishment clause, shows evidence that a number of the founding fathers such as Thomas Paine and Thomas Jefferson felt that established religion, under the auspices of state enforcement, would serve as a threat to freedom. This is plainly evident in Jefferson’s 1802 letter to the Danbury Baptist Association:

Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[19]"

The majority of arguments against gay marriage are religious in nature[20], and indeed that is the case with government-based opposition: rhetoric featuring the term “sanctity of marriage” is the first and foremost spearhead directed against any attempts at counter-legislation. In 2006, President George W. Bush, on his weekly radio program, called upon Congress to pass a constitutional amendment in order to ban gay marriage, expressing his opinion that marriage “cannot be cut off from it cultural, religious, and natural roots.[21]” Arguing for a contractual law to mirror religious creed is a blatant disregard for the first amendment, and alluding to cultural and ‘natural’ roots are part of a common logical fallacy known as The Appeal To Antiquity, where the claimant asks his or her audience to assume that the mere fact that an idea has a long tradition or life behind it is an immediate and irrevocable implication that it is, in fact, true.[22] One would only need to point to the pre-Civil War South and its long ‘tradition of slavery’ as an example of how this kind of reasoning is completely fallacious. One may also equally point towards humanity’s long tradition of racism to indicate that, in fact, a racist attitude is not only right, but “natural” as well. Appeals to antiquity disintegrate quickly when exposed to oxygen.

As it has been explained before, opponents of same-sex marriage do not have a constitutional or rational reason to oppose the rights to which, by constitutional principle, should be granted. The effect of continuing to disregard individual rights and constitutional principle is that scenarios such as Takako Ueda’s are repeated tens of thousands of times all across America, separating individuals who have no reason for being treated as second-class citizens, and tearing families asunder simply because certain elected representatives do not believe they should be families in the first place. The United States of America is not a Democracy, where a majority may willingly vote away the rights of a minority- it is a Constitutional Republic, with checks and balances placed by the Constitution upon the power and reach of government upon the lives of its individual constituents to prevent scenarios like these. The ordered death of Socrates was a fully democratic act carried out by the people of Athens,[23] and it was scenarios like these that the fathers of the Constitution sought to avoid with the original document and its first tend amendments called “The Bill of Rights” which guaranteed the inalienable rights of an individual, even against overwhelming votes.

Opponents continue to fight the issue, citing that same-sex marriages are “special rights”- that is, rights not found in the original Constitution and for which special legislation had to be effected[24]. However, this argument also falls apart in contradiction when examined: The drafting of DOMA, a specialized piece of legislation, proves that special treatment was actually given to a group of religious ideologies to interfere with the natural course of events as guaranteed by the 14th amendment. Unless one were to argue that the Constitution and its amendments initially promoted ‘special treatment’ (which would render the purpose of the Constitution as a document establishing individual rights impossible), there is no option but to discard the argument of ‘special rights’ immediately. The question is impossible to ignore: why did it take a special action from a focused interest group to sign legislation that obstructs a constitutional amendment from honoring same-sex contractual marriages, as they would have been under the fourteenth amendment? There was, in fact, a ‘special treatment’ granted in the issue of same-sex marriage, but in this case it was granted to the Religious Right in flagrant disregard for constitutional principle.

The only conclusion to which a rights-respecting individual, under Constitutional principle, can arrive at is that there is currently a subset of the American population that is suffering extreme injustice, discrimination and persecution. These are not special rights that have been taken away from same-sex binational couples, but basic constitutional rights that have been restricted through political maneuvers by the Religious Right. Such a situation cannot be tolerated nor can it be allowed to stand. There are two courses of action to which I exhort the reader, after presenting the arguments in favor of this case:

Support the Uniting American Families Act: Representative Jerrold Nadler (D-NY) reintroduced U.A.F.A. in the House of Representatives. Said bill has been presented to the house over a course of ten years, constantly being re-introduced, and which would allow the provision of ‘same sex partnerships’ to immigration procedures, allowing committed same-sex relationships to qualify for immigration and naturalization benefits without depending on the repeal of DOMA (which might take several years in court). And,

Support the Repeal of the Defense Of Marriage Act: U.A.F.A may be considered a stopgap measure in order to prevent further deportation of innocent, rights-respecting same-sex couples that have run afoul of the Religious Right’s legislation, but the ultimate goal to which any rights-respecting American must aspire is towards the full and absolute repeal of the Defense of Marriage act on the grounds that it violates individual rights, and specifically the first and fourteenth amendments to the United States Constitution. In order to become involved in the process to pass both U.A.F.A. and repeal DOMA, I urge the reader to refer himself to the Immigration Equality Action Fund at http://immigrationequalityactionfund.org/ and follow the guides in place for action.

Sources Cited

1. Immigration Equality: About Us. http://www.immigrationequality.org/about/

2. Immigration Action Fund: Statistics and Facts. http://immigrationequalityactionfund.org/press/facts/

3. Travel State Gov: Nonimmigrant Visas for Fiances. http://travel.state.gov/visa/immigrants/types/types_2994.html

4. Federal Defense of Marriage Act (DOMA), Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996)

5. Visas for Treaty Traders and Treaty Investors, Travel.StateGov, http://travel.state.gov/visa/temp/types/types_1273.html

6. Jaime Cone, Vermont Couples In Limbo From Defense of Marriage Act, http://www.immigrationequality.org/clippings/vermont-couple-in-limbo-from-defense-of-marriage-act/

7. Information for International Students, Undergraduate Admission, CU Boulder , http://admissions.colorado.edu/undergraduate/finances/international

8. Community College International Student Admissions, FRCC , http://www.frontrange.edu/international/

9. Student Visas, U.S. Department of State, http://travel.state.gov/visa/temp/types/types_1268.html

10. Federal Work Study Program, U.S. Department of Education, http://www2.ed.gov/programs/fws/index.html

11. Off-Campus Basic Guidelines, ICE, http://www.ice.gov/sevis/employment/faq_f_off1.htm

12. NOM: About NOM, http://www.nationformarriage.org/site/c.omL2KeN0LzH/b.3479573/k.E2D0/About_NOM.htm

13. Why Marriage Matters, SFMM, http://www.standformarriagemaine.com/?page_id=115

14. 14th Amendment, U.S. Constitution Online, http://www.usconstitution.net/xconst_Am14.html

15. Constitutional Law, Legal Information Institute, http://www.law.cornell.edu/wex/Constitutional_law

16. Ayn Rand, “The Objectivist Ethics,” The Virtue of Selfishness, 34.

17. Ayn Rand, “Galt’s Speech”, For the New Intellectual, 183.

18. Constitution of the United States of America, http://www.archives.gov/exhibits/charters/constitution.html

19. Jefferson’s Wall of Separation Letter, U.S. Constitution Online, http://www.usconstitution.net/jeffwall.html

20. Common Arguments Against Gay Marriage, About.com, http://atheism.about.com/od/gaymarriage/p/ContraGayMarria.htm

21. Comely Beattie, “Preserving the Sanctity of Marriage”, Common Dreams, http://www.commondreams.org/views06/0605-25.htm

22. Appeal To Antiquity, Logical Fallacies, http://www.logicalfallacies.info/relevance/appeals/appeal-to-tradition/

23. Doug Linder, The Trial of Socrates, http://law2.umkc.edu/faculty/projects/ftrials/socrates/socratesaccount.html

24. Tom Strode, “Opposed to ‘gay marriage’ , ‘special rights’ Bush says”, Baptist Press, http://www.bpnews.net/bpnews.asp?id=6657

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