Integrity Legal

16th April 2011

Those who read this blog with any degree of frequency may have noticed that the administration of this resource considers the issue of same sex marriage; and Federal recognition thereof, to be one of, if not the, foremost pending political and legal issues of the age. This opinion is based upon the fact that currently discriminatory Federal policies regarding recognition of properly solemnized and legalized State marriages between same sex couples are clearly operating in violation of long held Constitutional notions regarding State Sovereignty, Federalism, Separation of Powers, Full Faith and Credit, and Equal Protection.

Bearing the above in mind, it should be noted that there are legislators in Washington D.C. who seem committed to the cause of Equal Rights for the LGBT Community. To quote directly from a post on the website ImmigrationEqualityActionFund.org, apparently authored by Steve Ralls (Contact Details: 202-347-7007, sralls@immigrationequality.org):

Today, Congressman Jerrold Nadler (D-NY), the ranking Democrat on the Judiciary Subcommittee on the Constitution, Congresswoman Zoe Lofgren (D-CA), the ranking Democrat on the Judiciary Subcommittee on Immigration, and Representatives John Conyers (D-MI), Tammy Baldwin (D-WI), Jared Polis (D-CO), Mike Honda (D-CA), Luis Gutierrez (D-IL), and Jackie Speier (D-CA) announced the re-introduction of the Uniting American Families Act (UAFA). This overdue legislation would allow gay and lesbian Americans to sponsor their permanent partners for legal residency in the United States, a right currently enjoyed only by married heterosexuals under immigration law. Because the U.S. does not legally recognize gay and lesbian couples and their children as families, many same-sex binational couples are torn apart. Senator Patrick Leahy (D-VT) also introduced UAFA today in the Senate.

In previous postings on this blog, the efforts of Representative Jerrold Nadler in support of the LGBT Community and same sex bi-national couples have been noted and Representative Nadler’s current reintroduction of the Uniting American Families Act (UAFA) is simply one more example of this legislator’s continuing dedication to the cause of Equal Rights for the LGBT community. On a related note, it was recently pointed out that Representative Nadler is also a proponent of the so-called “Respect for Marriage Act” (RFMA) which would provide Federal recognition for same sex marriages solemnized and legalized in a sovereign State.

At the time of this momentous event this blogger would ask all interested parties in matters pertaining to Liberty, States Rights, Civil Liberties, and Personal Freedom to take heed of the current events involved in the struggle to obtain equal protection under the law for the LGBT community as a whole as well as same sex bi-national couples who are currently separated due to the current state of American Immigration law. On that point, it should be noted that the United States Citizenship and Immigration Service (USCIS) recently attempted to put policies in place to halt deportations of foreign same sex partners of American Citizens. It would appear as though USCIS’s policy was aimed at providing some relief, akin to that once accorded to individuals impacted by the so-called “Widow’s Penalty,” to those who are currently subjected to Federal non-recognition of same sex marriages, even those lawfully solemnized and legalized in a sovereign US State,  pursuant to what are clearly Unconstitutional provisions of the so-called “Defense of Marriage Act” (DOMA). That said, as of the time of this writing it is this blogger’s understanding that the Department of Homeland Security (DHS) has rescinded USCIS’s hold on such deportations thereby allowing the same sex bi-national spouse, even if the underlying marriage was solemnized and legalized in one of the Several States, to be deported.

The current discriminatory practices, pertaining to the LGBT community, on the part of the United States government are so pervasive that even first-year law students are aware of the issue. The current legal discrimination faced by a same sex bi-national couple seeking immigration benefits in much the same manner as their different-sex counterparts is so noticeable that even those with only an elemental grasp of the dynamics of United States law can discern many of the issues. To quote directly from a blog post titled Why Denying Homosexuals the Right to Marry is Completely Unconstitutional, authored by Sarah McCarthy on the site My Dog Ate My Blog:

Our country (as I’ve learned over the past week) essentially works like this: states are presumed to have all the power. Our founding fathers were most worried about tyrannical government, and hence wanted to give individual states the power to govern themselves and make their own laws in almost every situation. Hence, in the U.S., we really do have 50 different sets of law governing 50 different states.

Some of these 50 States have opted to use their lawmaking powers to provide marital benefits to same sex couples wishing to marry within their jurisdiction. The administration of this blog would strongly suggest that readers click on the hyperlinks noted above to read more from the above cited posting.  As noted by Ms. McCarty above, pursuant to the 10th Amendment of the United States Constitution, those powers not specifically enumerated to accrue to the Federal government are to be reserved to the States and the People respectively. Therefore, pursuant to the explicit language of the 10th Amendment and the implications present throughout the Constitution as a whole inherent State rights, such as the right to marry those within the jurisdiction of a given State, are generally considered to be beyond the bailiwick of the Federal government.

Even though legislative initiatives may ultimately prove to be effective for the LGBT community in securing some of the rights, privileges, and immunities associated with marriage it is this blogger’s opinion that only through full repeal of DOMA by the US Congress or the overturning of that legislation on Constitutional grounds by the US Supreme Court can the issue be laid to rest. In this blogger’s opinion, it is especially desirable that a “case or controversy,” such as that which recently arose in Massachusetts Federal Court, be brought before the United States Supreme Court as only that body has the authority, and possibly expertise, to delineate the application of the Full Faith and Credit Clause with regard to interstate vs. State-Federal recognition of same sex marriages.

There are some who have raised the argument that the same sex marriages which are legal in certain jurisdiction are only legal as a result of judicial fiat. However, this blogger would argue that, especially in the case of Massachusetts, there are strong indications that there is a political will manifesting itself in favor of same sex marriages, at least within that jurisdiction. To support this claim it may be best to quote directly from an article written by Pam Belluck and published by the New York Times on June 14, 2007:

Same-sex marriage will continue to be legal in Massachusetts, after proponents in both houses won a pitched months-long battle on Thursday to defeat a proposed constitutional amendment to define marriage as between a man and a woman.

“In Massachusetts today, the freedom to marry is secure,” Governor Deval Patrick said after the legislature voted 151 to 45 against the amendment, which needed 50 favorable votes to come before voters in a referendum in November 2008.

The administration of this blog strongly encourages readers to click upon the hyperlinks above to read this story in detail. Clearly, there are those within the jurisdiction of the Commonwealth of Massachusetts who support equal marital rights for same sex couples. However, Federal recognition of same sex unions remains to be seen. Hopefully, through continued action on the part of legislators such as those mentioned above the notions of Equal Protection under the law and State sovereignty will be upheld to the benefit of all American families.

For more information please see: Same Sex Visa or same sex marriage.


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