The Harm of DOMA

The following post was written on Facebook by one of my longest friends, Sunny, and reposted here by permission. A personal explanation of what unequal marriage laws mean to thousands of couples.

The Supreme Court Of The US (SCOTUS) has today been hearing arguments in an appeal case where 9 lower federal courts have all declared DOMA (so-called-Defense Of Marriage Act, 1996) as being unconstitutional. The President Of The United States (POTUS)’ administration has also argued that it believes this piece of legislation is unconstitutional. DOMA defines a spouse as being a person in a “marriage” between one man and one woman only and it binds the Federal government to use this definition of spouse for all US Federal regulations that confer any sort of rights or privileges to “spouses”. As a result, DOMA prevents the US federal government from recognizing a person in any form of a same-sex “marriage” or any civil or domestic partnership agreement (same sex or even opposite sex) from having a legal recognition as a spouse. Even if an individual state like New York or California recognizes same-sex marriage or domestic partnerships, only State granted rights (like state level taxes) are conferred. Federal benefits are not available to us.

A lot has been talked about Federal benefits like taxation or inheritance rights, but there’s one Federal benefit that most people don’t realize, Immigration. Any US citizen or resident has a federal benefit which allows them to sponsor their spouse to be granted a visa to live and work in the US as a resident. Without this benefit, the US resident or citizen is denied the right to legally have their foreign husband, wife, partner, significant-other, “spouse” to live with them in the US. This is something that is very personal to me and my partner James and it has caused me, an American resident soon to citizen, years of separation from my family and more recently significant financial and emotional burden while we sought a way for us to legally be together in the US.

After my parents, brother and sister all moved out to the US as residents and eventually become US citizens, I was forced to choose to not move here with the rest of my family as I had no way to bring my partner James with me. My choice was to leave James to live with my family or to be parted from my family to be with James. It took 6 years for James and I to get to a position where we could afford to be able to move out here where he had to give up his career and go back to being a student in order to be able to legally come to the US.

The 2 years of him being a student meant us not only going to a single income but also an additional financial burden of having to pay for graduate school from that single income (no grants available and not allowed to work while on a foreign student visa). Even during those two years of school and personal sacrifices made due to available income, we faced the very real possibility that we would have to return to the UK after his school finished or any border protection officer deciding at any time that the “intention to not stay in the US permanently” requirement of a foreign student visa was not being honoured (family ties or even a boy/girl friend relationship with a US resident or citizen can be deemed grounds for determining an intention to stay and thus invalidate that visa).

Even now, after James managed to get a job on his own merits through hard work, professionalism and skills, he is still not a classed as a US resident, only a temporary worker. If his job were to become redundant, his work visa would be invalid and again we would be faced with the immediate need to leave family and friends and anything we have built up in terms of a life here, within 30 days.

Although things are better for us financially now that we are a 2 income household and without having to pay for graduate school, we are up still only up to the same position as other same sex couples in terms of taxation and paying higher taxes for our joint household. We are still not in a position to put down any roots like buying a house or considering adoption, partly due to the financial catch-up we are playing due to the first 2 years and partially due to the still hanging sword of Damocles that James loosing his work visa status is.

Immigration is one of those areas that the ones most affected by it are afraid to even speak up about it as public admittance of a relationship can often lead to a legal battleground over whatever method a same sex bi-national couple have been able to achieve to legally stay together in the US. We have always been extremely careful to stay legal and have been forced to sacrifice in order to maintain that legality.

There’s a lot of talk in the news regarding DOMA about rights and the freedoms or the fairness of equality. Legal debates ask the question about undue burdens placed on the injured party. I’m a US resident soon to be a citizen and I can say for sure that I have been burdened and injured by the presence of DOMA. I believe in the promise of equal treatment and no unjust burdens on citizens (and residents) that is at the heart of the US constitution and its amendments. DOMA is not in line with those core principles. That’s called unconstitutional and thus DOMA should be struck from law.

This is a very long post so a heartfelt THANKS if you have made it this far. My ask of you as a friend is to please give your support to ending the injustice of DOMA. Write your senator, your representative, talk with your friends and family, help change hearts and minds at the one-on-one level.

One of the reasons hearts and minds are changing is that so many of us know folks like Sunny. Sunny came out to me on a school trip, and he was such a close friend, it never occurred to me not to be supportive. I’m grateful he spared me from having to figure it out from first principles. I’ve since met a lot of well-meaning people who try to figure it out and get it all wrong. I wish everyone could have someone in their life like him.


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6 responses to “The Harm of DOMA

  1. YES! Plus I would get to bless more unions! And with a 50% fail rate, we need all the blessing of unions we can get! Great article and a novel approach to the issue.

  2. I think DOMA is certainly has some impact on your situation in that it defines marriage very specifically (more specifically than I prefer), but I’m not sure that’s all of the impact. Absent DOMA, I don’t know if existing US law would recognize such a marriage performed in a country where it was officially legal. DOMA should certainly fall, but there’s still more legal issues beyond that.

    Sunny obviously also stumbled into a second area of legal peril or, rather, James has. I can guess his visa status (the same as about quarter of my colleagues). Giving an employer the power not just to fire a person (which applies to everyone), but to render him an illegal resident (which applies just to H1B and related folks) is a little scary. Economically, that makes him better than an indentured servant, but not quite up to the level of ordinary employee. In my opinion, that should change for all people with those visa statuses and not just those who have a not-yet-officially-sanctioned marriage.

    That’s two soapboxes I could stand on … what now?


  3. Sigh. I’ve heard other stories like this from couples injured by this injustice. Our Constitution grants us equal rights as citizens. As long as the law determines who may be married, denying a gay couple the right to vote causes them to become second-class citizens. It’s illegal, it’s unconstitutional and it’s disgusting that the Supreme Court is dragging its feet.

  4. Oops, not the right to vote, the right to marry.

  5. arcseconds

    While I don’t want to detract from the significance of the removal of DOMA, part of the problem here is surely US immigration!

    A good friend of mine has been through immigration hell in the US on at least two occasions (yes, the famous HB1 visas). And, more trivially but more personally (and illustrative of the attitude some US officials have to the matter, perhaps) I was browbeaten by a US border guard about my status in Canada on one occasion!

    (Y’know, because clearly it’s his business what status I had in Canada, and clearly if you’re a student in Canada it’s a front for stealing an American job…)

    So, the whole area seems basically built to be a huge institutional bully, and I definitely feel for anyone who’s been caught up with any of that nonsense…

  6. Ian

    Thanks everyone, I appreciate your insights on this. I have another couple of friends who are binational. But because they are straight, and the US recognizes their marriage, they had no issues setting up home in the US.

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