Originally published on Advocate.com September 29 2011 7:43 PM ET
A federal judge has dismissed a lawsuit brought by a married binational gay couple in California who were denied a marriage-based green card by immigration officials.
Handi Lui, a citizen of Indonesia who in 2009 married his American spouse, Michael Ernest Roberts, in Massachusetts, sued the government after U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, denied the couple’s marriage-based petition for permanent residency (the Board of Immigration Appeals later upheld that decision). In the lawsuit Lui argued that in doing so, USCIS violated the Immigration and Nationality Act’s provisions banning sex discrimination. Furthermore, Lui argued, immigration officials’ interpretation of the Defense of Marriage Act in denying the green card petition was unconstitutional.
A House Republican–led advisory group currently defending DOMA in multiple legal challenges had moved to dismiss Lui’s complaint. And in a five-page order issued Wednesday, U.S. district judge Stephen V. Wilson did so, writing that immigration officials did not err in their decision and that the court is bound by a 1982 case involving a Colorado gay male couple denied immigration sponsorship rights (in the rejection of the couple's petition decades ago, officials wrote that their attorney had "failed to establish that a bona fide marital relationship can exist between two faggots").
Gay immigration rights advocates have argued that the case, Adams v. Howerton, should not be relied upon as precedent, however, given the sea change in marriage equality in states across the nation as well as landmark LGBT rights cases.
“We’re disappointed that the court relied on a 30-year-old decision to dismiss Mr. Lui’s case when the world has changed so much in the last three decades,” said Victoria Neilson, legal director for Immigration Equality. “This case provides another example of why we need a permanent solution for all LGBT immigrant families.”
In the Lui case, the Obama administration’s Justice Department, which earlier this year announced it would no longer defend DOMA in court, had argued that the 1996 law should be found unconstitutional — as it has done in other DOMA suits — and that once it is struck down, USCIS would have the authority to consider marriage-based green card applications from married same-sex couples.
That brief followed an August Homeland Security announcement that the agency will conduct a case-by-case review of pending deportations to better handle high-priority cases, such as those involving convicted felons. An administration official later clarified that same-sex binational couples may be considered among lower-priority cases, though it’s unclear whether such guidance has been applied in the field.
However, Judge Wilson wrote that the administration is walking “a fine line” by arguing that it must continue to enforce DOMA by denying green card petitions from married same-sex couples while “simultaneously arguing that Section 3 of DOMA, which excludes same-sex couples from the definitions of marriage and spouse for purposes of federal law, violates equal protection.”
A PDF of Judge Wilson’s order is available here.
Lui and Roberts are represented by attorneys Carlos Holguin and Peter Schey at the Center for Human Rights and Constitutional Law.
Update: Lavi Soloway, cofounder of Stop the Deportations, issued the following statement on Judge Wilson's order:
"Judge Wilson's ruling dismissing this challenge to DOMA by a gay binational couple is a setback in the fight to win equality for all lesbian and gay Americans married to foreign citizens and a rejection of the Obama administration's strong arguments in support of the plaintiffs in this case. Crucially, it sets up a likely appeal to the Ninth Circuit on the question of whether lesbian and gay binational couples in that jurisdiction have the right to challenge DOMA in federal court.
"The Judge sided with the arguments made by House Republicans that discrimination against binational couples is permissible and found that DOMA does not violate the equal protection provision of the U.S. Constitution in the immigration context. This is a surrender to explicit, indefensible discrimination that should outrage any fair-minded person.
"The Judge, a 1985 Reagan appointee, relied on nothing more than the 30-year-old case of Anthony Sullivan and Richard Adams, and refused to consider compelling arguments that the court must consider DOMA's constitutionality based on current legal and social context. Wilson essentially states that no married same-sex binational couples should be allowed to challenge DOMA in federal court in this jurisdiction, a proposition that should concern all Americans greatly. Conservative judges must not be in the business of blocking access to the federal courts because of outdated decisions.
"Judge Wilson's poorly-reasoned decision is an important wake-up call that the momentum toward full equality cannot be taken for granted, even with the Obama administration coming into court on the side of lesbian and gay plaintiffs. We must keep up the fight to end DOMA through the legislative process, in our federal courts, and most importantly in the court of public opinion. Unless DOMA is repealed or struck down by the Supreme Court, lesbian and gay binational couples will not achieve equality."