Integrity Legal

Posts Tagged ‘equal protection’

26th June 2013

In a landmark case, UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., the United States Supreme Court in a 5-4 decision has ruled that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional. For those unfamiliar with this issue, section 3 of DOMA reads as follows:

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.

The upshot of this legislation is that up until the Supreme Court handed down this ruling same sex couples have not been able to receive the same federal benefits as different-sex couples. In the case at hand, a widow of a same sex spouse who was legally married and residing in the State of New York (one of 12 States which recognize same sex marriage) was barred from receiving an estate tax refund because the federal government, citing section 3 of DOMA, did not recognize the couple’s marriage. To quote directly from the majority opinion of the Supreme Court:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect…By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.

In order to shed further light upon this decision it is necessary to quote the Fifth Amendment of the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As the majority of the Court held that “DOMA violates basic due process and equal protection principles applicable to the Federal Government” pursuant to the Fifth Amendment it appears that from this point on those same sex couples legally married in a State which recognizes same sex marriage (or possibly in international jurisdictions which legalize same sex marriage as the parties in the Windsor case were actually married in Canada) will receive federal recognition of those marriages and be able to enjoy federal benefits arising from their marital status. The question of interstate recognition of same sex marriage remains a bit murky as there has yet to be a decisive ruling regarding this issue, but the issue of federal recognition of a same sex marriage would appear to be fully resolved.

How Might This Decision Impact The United States Immigration Process?

In the past, same sex bi-national couples were unable to receive immigration benefits such as a Green Card or a K-1 visa (fiance visa) because The Defense of Marriage Act (DOMA) precluded federal recognition of same sex marriage. This preclusion even applied to those same sex bi-national couples who were married in one of the 12 States which recognize same sex marriage (some could argue that there are now 13 States which recognize same sex marriage since the Supreme Court in another decision handed down at roughly the same time as the Windsor decision effectively leaves the door open for California to legalize same sex marriages). As a result of the federal government failing to recognize same sex marriage agencies such as the United States Citizenship and Immigration Service (USCIS) could not grant immigration benefits such as lawful permanent residence (Green Card status) to the same sex spouse of an American Citizen or lawful permanent resident solely based upon the couple’s marrriage. Now, that would appear to no longer be the case, although the Court did not explicitly rule upon the issue of immigration benefits for same sex couples the fact that the Court struck down section 3 of DOMA means that a same sex marriage must be accorded the same federal recognition as a different-sex marriage. Therefore, it is logical to surmise that the Court’s decision should allow same sex couples to undergo adjudication for immigration benefits such as visas and Green Cards in a manner similar to different-sex couples. There are likely to be complications as federal regulators implement policies which comport with the Court’s decision, but one thing is clear: the Windsor decision is a major victory for same sex bi-national couples.

For related information please see: Equal Protection or same sex marriage.

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19th August 2011

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) may be poised to begin placing holds on some deportations. In order to provide further insight it is necessary to quote directly from the website of The Washington Times, WashingtonTimes.com:

The Homeland Security Department said Thursday it will halt deportation proceedings on a case-by-case basis against illegal immigrants who meet certain criteria such as attending school, having family in the military or are primarily responsible for other family members’ care. The move, announced in letters to Congress, won immediate praise from Hispanic activists and Democrats who had chided President Obama for months for the pace of deportations and had argued he had authority to exempt broad swaths of illegal immigrants from deportation…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks above to read this article in detail.

Although this blogger has been reluctant to support blanket amnesty per se, especially for those who have entered the United States illegally; there are often unique and extenuating circumstances which require adjudication in order to equitably administer American immigration law and regulation pursuant to legislative and executive plenary power. It remains to be seen how this policy will be practically implemented.

In news related to the struggle for LGBT Equality, it recently came to this blogger’s attention that the federal delegation from the sovereign State of New York may be more supportive of DOMA repeal since a Congressional Representative from that State was recently noted for comments on this issue. In an effort to provide further insight it is necessary to quote directly from the website Towleroad.com:

After waiting for New York State to legalize gay marriage, Democratic Rep. Bill Owens now says he supports the repeal of the Defense of Marriage Act that prohibits federal recognition of same-sex marriage. “I indicated I would not become a co-sponsor until New York took action,” said Owens, who represents the Empire State’s 23rd Congressional district. “Once they did that, I felt I had an obligation to the citizens in the state to make sure they weren’t adversely impeded by federal law.” Owens continued, “I think that people should have the freedom to make those kinds of decisions…”

The administration of this web log asks readers to click on the hyperlinks above to read this article in detail.

For those who are unaware of the evolving nature of this issue it should be noted that the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude federal recognition of same sex marriage. This federal non-recognition is enforced even where one of the sovereign American States has legalized and/or solemnized the underlying same sex marriage. There are some who would argue that this activity violates the Full Faith and Credit Clause of the United States Constitution while others could argue that such discrimination violates the Equal Protection Clause. In any case, the result in an immigration context is that same sex bi-national couples (even those who have entered into a same sex marriage in a US State) cannot receive the same visa benefits (such as the CR-1 visa, IR-1 visa, or K-1 visa)  as their different-sex counterparts. Some federal legislators, such as New York delegation member Representative Jerrold Nadler, have attempted to remedy this problem through introduction of bills such as the Uniting American Families Act (UAFA: to address the specific issue of discrimination in an immigration context) and the Respect For Marriage Act (RFMA: a proposal which would accord federal “certainty” to State licensed same sex marriages). However, it remains to be seen whether such legislation will ultimately see passage.

In news related to the aforementioned issues it also came to this blogger’s attention that further “mainstream media” attention is being focused upon the case of the same sex bi-national couple who were married in the Commonwealth of Massachusetts, but face the prospect of separation due to the fact that the American government may remove the foreign spouse since their marriage is not recognized pursuant to the provisions of DOMA. In an effort to provide further detail this blogger is compelled to quote directly from the official website of The Washington Post, WashingtonPost.com:

Mr. Makk’s case illustrates the profound injustices meted out by DOMA, which was passed in 1996. The Obama administration this year denounced the Clinton-era law as unconstitutional because it deprives same-sex couples equal protection of the law. In April, Attorney General Eric H. Holder Jr. put on hold the deportation of a British man who has lived in the United States since 1996 but who never obtained a green card or citizenship. The man, Paul Wilson Dorman, has been in a committed same-sex relationship for 15 years and entered into a civil union with his partner, a U.S. citizen, in 2009. Mr. Holder asked an immigration court to determine whether Mr. Dorman should be considered a “spouse” under New Jersey law and thus entitled to stay in the country. Mr. Makk’s deportation should also be put on hold, as should those involving anyone in legally recognized same-sex relationships whose only infraction involves immigration status…

The administration encourages readers to click upon the hyperlinks noted above to read this article in detail as this situation is poignant indeed.

Although this blogger can at times get caught up in the rather academic details of the debate on federal recognition of same sex marriage readers should be aware that this issue has a truly human context since couples like the one noted above could have their personal lives substantially disrupted as a result of federal policy with respect to same sex couples. There is some speculation that this matter may ultimately see resolution in the US Courts, but until such time as a final decision is made on the matter same sex couples and the Greater LGBT community in America are left to hope that their federal legislature will pass legislation akin to the RFMA or the UAFA. Perhaps in the meantime officers in the American immigration system can utilize their statutory authority and plenary powers to provide equitable relief to those who find themselves facing the prospect of being separated from their loved ones due to questionably Constitutional law.

For information pertaining to legal services in Southeast Asia please see: Legal.

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6th August 2011

It recently came to this blogger’s attention that further support for the Respect for Marriage Act (RFMA) may be forthcoming from membership of the United States Senate. To quote directly from the official website of The Washington Independent, WashingtonIndependent.com:

Long a holdout in signing on to back the Respect for Marriage Act, Sen. Amy Klobuchar indicated this week she’ll sponsor the bill, which would repeal the federal Defense of Marriage Act. Klobuchar is the last Democratic member of the Senate Judiciary Committee to back the measure after Sen. Herb Kohl of Wisconsin expressed his support in April. Fellow Democrat Al Franken was an original sponsor of the act…

This blogger asks readers to click upon the relevant hyperlinks noted above to read this article in detail.

Frequent readers of this blog may recall that Representative Jerrold Nadler introduced a “Respect for Marriage Act” counterpart piece of legislation in the United States House of Representatives where there is some doubt as to the ultimate fate of the bill notwithstanding the fact that it supports fundamental notions connected to States’ Rights pursuant to the United States Constitution’s Full Faith and Credit Clause. Meanwhile, there is also a compelling argument that support for the RFMA as a replacement for the so-called “Defense of Marriage Act” (DOMA) is simultaneously supportive of notions related to Equal Protection and natural law. How all of these issues will ultimately be sorted out by US Courts and/or the American legislature remains to be seen, but following the debate generates a great deal of intriguing insight into the evolving nature of the United States Constitution.

Meanwhile, in news related to the jurisdictions of the Association of Southeast Asian Nations (ASEAN); it recently came to this blogger’s attention that some international media outlets have reported upon the Russian perspective of recent ASEAN meetings. In order to provide further particulars it is necessary to quote directly from the official website of The Voice of Russia, ruvr.ru:

The dialogue between Russia and the Association of Southeast Asian Nations (ASEAN) is actively developing, Russian Foreign Minister Sergei Lavrov said following a ministerial meeting in Indonesia. Experts cannot fully agree with this, saying that the sides have yet to completely activate their potential for both bilateral and multilateral cooperation.

The administration of this blog asks readers to click upon the relevant hyperlinks noted above to learn further from this insightful article.

Although this blog attempts to primarily focus upon issues pertaining to ASEAN from an American context the activities of any of the so-called BRICS countries (Brazil, Russia, India, China, South Africa) in the ASEAN region is of compelling interest to those who follow geopolitics and economics with any degree of frequency. How negotiations regarding the future structure of ASEAN will play out is anyone’s guess. Concurrently, the confluence of economic forces at play in the ASEAN region could yield trade opportunities with the potential for future exponential growth in real terms. As a result, an understanding of the unique nature of ASEAN and her component jurisdictions (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam) could provide real insight to those looking to conduct business in Southeast and Greater Asia.

For information related to legal services in Southeast Asia please see: Legal.

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29th July 2011

Notwithstanding the fact that the American federal government currently finds itself in gridlock due to issues such as the debate over the raising of the debt ceiling and other issues pertaining to the national deficit there appears to be one issue that seems to be continually overlooked by members of both parties in the United States Congress. That issue is: federal recognition of State licensed same sex marriage. Regardless of the provisions in the United States Constitution regarding Full Faith and Credit as elucidated in the language of the Full Faith and Credit Clause, the third section of the so-called “Defense of Marriage Act” precludes federal recognition of same sex marriage even in situations where such unions are legalized and/or solemnized in one of the American State jurisdictions which license such marital unions.

In the interests of full disclosure, this blogger originates from the Great State of Kansas and that State has opted to pass a ban upon same sex marriage as a State Constitutional amendment. This blogger disagreed with the promulgation of that amendment at the time because he has always believed that the States have no right to legislate as to We The People‘s natural rights and prerogatives. That stated, where State legislation augments personal liberty and is not preempted expressly by the enumerated powers of the federal Constitution, such legislation should be accorded Full Faith and Credit pursuant to the United States Constitution not to mention pursuant to the law of the land in the United States of America.

Bearing the above in mind, the issue of same sex marriage and federal recognition thereof is a thorny one since there are those States which expressly ban such unions while concurrently there are those which expressly permit such unions. Therefore, there could be a situation where a same sex marriage is performed and thereby legalized in one State and thereafter the couple cannot be divorced in another State jurisdiction as said jurisdiction does not permit such unions pursuant to State public policy. The courts in the non-recognizing State may be required to recognize that a same sex marriage in another jurisdiction exists in fact, but may not allow the same sex couple to receive a divorce. For more on these concepts it is prudent to review the previous blog posting regarding the concept of vertical vs. horizontal Full Faith and Credit.

Bearing all of the above in mind, it is this blogger’s opinion that the issue of same sex marriage recognition, at least at the federal level, is a virtually non-partisan issue since it touches upon basic human rights as well as those notions inherent to the concept of States’ Rights. As a result, politicians should not have a “tough sell” on this issue with respect to their constituents as Republican legislators can note that support of legislation such as Representative Jerrold Nadler‘s Respect For Marriage Act is supportive of reserved State prerogatives. Meanwhile, Democrats can note that support for repeal of DOMA is in the interests of human rights, civil rights, and Equal Protection.

It remains to be seen how these concepts will come to evolve as the legislative session continues, but it is clear that this issue dovetails many key concepts that Americans associate with personal freedom and Constitutional law.

– Benjamin Walter Hart

For further information regarding federal recognition of same sex marriage please see: Certainty.

For information pertaining to legal services in Southeast Asia please see: Legal.

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26th July 2011

It recently came to this blogger’s attention that there may be a pending matter coming before the US Courts pertaining to same sex marriage in the sovereign State of New York. In order to provide further insight it is necessary to quote directly from the website of the Washington Blade, WashingtonBlade.com:

Before the ink had even dried on many of the first marriage licenses for same-sex couples in New York, the state Attorney General was busy filing a brief in one of the several cases against the Federal Defense of Marriage Act, which prevents the Federal Government from recognizing same-sex marriages performed in the states where such marriages are legal, and preempts the Constitutional ‘Full Faith and Credit’ cause by allowing states to refuse to recognize some marriages performed in elsewhere. Tuesday, Attorney General Eric Schneiderman filed an Amicus Curie brief in the U.S. District Court for the Southern District of New York in the Windsor v. United States, a case brought against the government by the American Civil Liberties Union on behalf of New York widow Edie Windsor. When her wife Thea passed away in 2009, Edie was forced to pay penalties most married couples don’t have to pay because her marriage was not recognized, though the two had shared a life together for over 44 years. [sic]

The administration of this web log strongly encourages interested readers to click on the relevant hyperlinks above to read more from this always interesting website.

Frequent readers of this web log may recall that issues pertaining to Full Faith and Credit pursuant to the Full Faith and Credit Clause of the United States Constitution are central to the issue of federal recognition of State licensed same sex marriages. This blogger has always felt that the issue of Full Faith and Credit in the context of same sex marriage will likely be adjudicated in the American Court system as there are those who would argue that the United States Congress does not have the political will to pass legislation to rectify the current discrimination imposed by the so-called “Defense of Marriage Act” (DOMA). This argument is generally made notwithstanding the fact that legislators such a Representative Jerrold Nadler have introduced legislation such as the Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) which would alleviate immigration discrimination and provide “certainty” to State legalized and/or solemnized same sex marriages, respectively.

Congressional reluctance regarding the repeal of DOMA would seem to exist notwithstanding the fact that there is a fundamentally pro-States’ Rights element which augers in favor of DOMA repeal. States’ Rights arguments are often undertaken by those on the so-called “political right” in America politics. Meanwhile, there is a concurrent Civil Rights and Equal Protection argument which seems to operate in favor of DOMA repeal. Such arguments are often espoused by members of the so-called “political left” in American politics. How these issues will ultimately be resolved remains to be seen, but one this is certain: this situation makes for interesting political and legal theater.

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19th July 2011

It recently came to this blogger’s attention that the President of the United States of America may be changing his position on the issue of same sex marriage in the context of a repeal of the so-called “Defense of Marriage Act” (DOMA). To quote directly from an article written by Helene Cooper and posted on the official website of the The New York Times, NYTimes.com:

WASHINGTON — President Obama will endorse a bill to repeal the law that limits the legal definition of marriage to a union between a man and a woman, the White House said Tuesday, taking another step in support of gay rights. Jay Carney, the White House press secretary, said Mr. Obama was taking the additional step away from the Defense of Marriage Act — which the administration said earlier this year it would no longer defend in court — in order to “uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.” If the measure passes, it would make same-sex couples eligible for certain federal benefits that have previously been available only to heterosexual married couples…

The administration of this web log strongly encourages readers to click on the hyperlinks above to read this article in detail.

This news comes virtually contemporaneously with the announcement that the United States Senate’s Judiciary Committee is set to hold hearings on the issue of DOMA and the possible promulgation of legislation such as the Respect for Marriage Act. Such legislation would provide “certainty” to those same sex couples who have married in one of the States which allows same sex unions. Currently, same sex bi-national couples are barred from receiving American immigration benefits such as the CR-1 visa, K-1 visa, or IR-1 visa as section 3 of DOMA precludes awarding such benefits even if a same sex marriage has been legalized and/or solemnized by one of the sovereign American States.

In related news, it would appear as though advocacy groups calling for the repeal of DOMA are stressing the immediacy of the upcoming hearings and how a show of support could have a positive impact upon the legislative process. In order to shed further light upon these developments it is necessary to quote directly from the Instinct website, InstinctMagazine.com:

With the Senate set to begin the DOMA hearing tomorrow, the Courage Campaign is asking the community to help get the urgency across by participating in a new viral campaign. But no signatures here! Find out how to get involved after the jump. Two years ago, Courage Campaign launched “Fidelity,” a multimedia video focused on Prop. 8, urging the courts to not forcibly divorce same-sex families. With the first-ever repeal hearing for the Defense Of Marriage Act about to begin tomorrow in D.C., community leaders are calling on us all to get involved with “Fidelity II…”

The administration of this web log encourages readers to click upon the hyperlinks noted above to read further from this interesting posting.

It remains to be seen how these issues will play out, but it should be noted that there are other considerations inherent to this issue apart from Civil Rights and Equal Protection principles. For example, there are certain States’ Rights components to an analysis of American jurisprudence regarding the legality of the federal government’s refusal to recognize same sex marriages legalized and/or solemnized in the sovereign States since notions of Full Faith and Credit pursuant to the Full Faith and Credit Clause of the United States Constitution come into play. Meanwhile, there are some who could argue that notions of natural rights and natural law should not be overlooked in any analysis of possible DOMA repeal. As this situation continues to evolve it should prove interesting to see how this issue is ultimately resolved.

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12th July 2011

It recently came to this blogger’s attention that the often venerated alternative media outlet ZeroHedge.com has posted an analysis of issues pertaining to a proposed change to the forms used by those seeking a US Passport. To provide further insight it is necessary  to quote directly from the Zero Hedge website, ZeroHedge.com

In the US, the government now requires all citizens to have a passport in order to pass the border, even when driving into Mexico or Canada. Obtaining a passport, however, is neither free nor guaranteed.  You must apply, pay an ever-increasing fee, and wait for weeks to be approved and receive it. Recently, the State Department quietly proposed a new ‘biographical questionnaire’ in lieu of the traditional passport application. The new form requires you to provide things like:

- names, birth places, and birth dates of your extended family members
– your mother’s place of employment at the time of your birth
– whether or not your mother received pre-natal or post natal care
– the address of your mother’s physician and dates of appointments
– the address of every place you have ever lived in your entire life
– the name and address of every school you have ever attended

Most people would find it impossible to provide such information, yet the form requires that the responses ‘are true and correct’ under penalty of imprisonment. Naturally, the privacy statement on the application also acknowledges that the responses can be shared with other departments in the government, including Homeland Security. If this proposal passes, then US citizens will have a nearly insurmountable hurdle to obtain a passport and be able to leave the country at will…

The administration of this blog asks readers to click upon the relevant hyperlinks noted prior to this excerpt. Also, it is advisable to click upon the hyperlinks contained within this quotation in order to understand this situation in context.

Each year, many Americans traveling abroad, or those Americans resident abroad, renew their passport at an American Citizen Services section of a US Embassy or US Consulate abroad. It has always been this blogger’s opinion that personnel of the Department of State who handle such matters do so in an efficient and courteous manner. Meanwhile, many United States Citizens opt to seek passport renewal in the USA. This blogger has undertaken both endeavors and in each case the officers involved processed the request quickly and with little difficulty. Although it remains to be seen how the proposed questionnaire would actually impact the processing of passport issuance requests one can hope that the process will not become overly cumbersome.

In news pertaining to the struggle for LGBT Equality, it recently came to this blogger’s attention that a woman in the sovereign State of New York is challenging the legal status and Constitutionality of the provisions of the so-called “Defense of Marriage Act” (DOMA). In order to provide the reader with some relevant insight it is necessary to quote directly from an article by Mark Hamblett for the New York Law Journal posted on Law.com:

Challengers to the federal Defense of Marriage Act insist that every justification offered by Congress for defining marriage exclusively as between a man and a woman is contrary to logic and the law. In summary judgment papers filed in the Southern District of New York, lawyers for Edith Schlain Windsor argue that there is no good reason for treating her marriage to the late Thea Clara Spyer any differently than a heterosexual union. Read Ms. Windsor’s motion and memorandum. Ms. Windsor’s lawyers call the Defense of Marriage Act (DOMA) a radical measure and a clear violation of the right to equal protection of the laws under the Fifth Amendment to the U.S. Constitution. “DOMA is a sweeping statute that rewrites over one thousand federal laws and overturns the federal government’s long-standing practice of deferring to state determinations of marital status,” the lawyers claim in a memorandum asking Magistrate Judge James C. Francis IV for summary judgment in the case of Windsor v. United States, 10-cv-8435. “Throughout history, the federal government has never married people, leaving that to the states…”

This blogger asks readers to click upon the hyperlinks noted above to read about this case in detail.

Those unfamiliar with the current predicament of the LGBT community should note that in immigration matters same sex bi-national couples, even those who have entered into a same sex marriage in one of the sovereign American States which legalize and/or solemnize such unions, are unable to petition for the same immigration benefits as their different-sex counterparts. In order to attempt to remedy this particular discrepancy Representative Jerrold Nadler recently introduced legislation such as the Uniting American Families Act (UAFA). The Respect for Marriage Act was also introduced by Representative Nadler in order to remedy the issue of “certainty” in such cases. As of the time of this writing, neither of these bills has seen enactment although there has been recent news that the Senate Judiciary Committee may be holding hearings pertaining to the Respect for Marriage Act soon. On a related note, the Reuniting Families Act, which apparently includes UAFA-like language, was lately introduced by Representative Mike Honda although passage of this legislation remains to be seen.

There is certainly an “equal protection” component to any argument against DOMA, but relatively few commentators seem to take note of the fact that the way DOMA is currently enforced may also violate notions of States’ Rights. Generally, matters pertaining to the prerogatives of the Several States are debated by the United States Congress before enactment of legislation which maintains interstate compliance with the provisions of the Full Faith and Credit Clause of the United States Constitution. In this case, Congress has arguably abrogated the notion of Full Faith and Credit inherent in the provisions of the Full Faith and Credit Clause since section 3 of DOMA effectively renders the prerogatives of the sovereign States ineffective when it comes to the issue of same sex marriage.

The issues associated with DOMA have yet to be fully resolved, but it seems likely that these matters may remain contentious both inside the Courtrooms of America and elsewhere.

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1st July 2011

During a recent exploration of the World Wide Web it came to this blogger’s attention that there are increasing numbers of websites reporting on issues associated with same sex marriage and the legal ramifications of such unions upon both the accordance of federal benefits and the issuance of United States visas. In a previous posting on this blog it was noted that the sovereign State of New York recently enacted legislation which would legalize same sex marriage in that jurisdiction. However, there are those who would argue that the struggle for LGBT Equality is far from finished. To provide further insight into these unfolding events it may be best to quote directly from the TheNation.com:

[W]hile this is certainly a moment to celebrate, same-sex couples in New York are not out of the woods yet. Because of the “Defense of Marriage Act” (DOMA) passed by Congress in 1996, the federal government does not honor any same-sex marriages performed in the states. So as thousands of gay and lesbian couples are married in New York over the coming months, the federal government will treat those legally married couples as strangers and deny them more than a thousand federal rights and protections of marriage, including Social Security spousal benefits, fair tax treatment and the right to sponsor a spouse for a visa or citizenship.

Readers are encouraged to click upon the relevant hyperlinks noted above to read this interesting article in detail. As noted previously in multiple postings on this web log the provisions of the so-called “Defense of Marriage Act” (DOMA) create a situation in which the federal government precludes recognition of same sex marriage even where one of the sovereign American States has legalized and/or solemnized such a union. This has lead some to note that failure on the part of the federal government to recognize such unions results in something of an abrogation of the notion of Full Faith and Credit as enshrined in the United States Constitution’s Full Faith and Credit Clause. That stated, some federal legislators, such as Representative Jerrold Nadler and Representative Mike Honda, have introduced legislation  such as the Uniting American Families Act (UAFA), the Respect for Marriage Act, and the Reuniting Families Act which are designed to mitigate some of the discrimination imposed by application of DOMA. As of the time of this writing, however, none of the aforementioned legislation has been enacted.

Bearing in mind the facts noted above, the reader should note that there have been some other positive developments, albeit relatively minor, in the struggle for full equality. In order to shed further light upon these developments it may be prudent to quote directly from the website LGBTQNation.com:

Another battle which is loosening the Jenga pieces under this bigoted piece of legislation is the fight for immigration rights by bi-national couples. One such case that we’ve covered is that of Henry Valendia and Josh Vandiver, a legally married couple residing in New Jersey. Under DOMA, Valendia, a Venezuelan national, was denied legal residency. Last month, U.S. Attorney General Eric Holder vacated a decision made by the Board of Immigration Appeals (BIA)…[S]ome incredible news came to the Valencia-Vandiver family on Wednesday in the form of a dismissal by Jane H. Minichiello, the chief counsel at the Newark office of Immigration and Customs Enforcement, and arm of the Homeland Security Department…

The administration of this web log asks readers to click upon the appropriate hyperlinks noted above to learn further details from this fascinating article.

It is certainly heartening to see that the United States government appears to have dismissed the proceedings related to this same sex bi-national couple. That stated, it is certainly possible that this may remain, at least for the time being, an isolated incident as the provisions of DOMA appear to still be in force. Hopefully, this case is the first in a long line of cases in which the LGBT community sees Full Faith and Credit and Equal Protection under the law of the United States of America.

For related information please see: US Visa Thailand.

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4th June 2011

I have sworn on the altar of God eternal hostility against every form of tyranny over the mind of man.

–Thomas Jefferson (3rd President of the United States of America, First Secretary of State [Washington Administration])

Gay rights are human rights.

– Secretary of State Hillary Rodham Clinton (Former First Lady of the United States)

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

– 9th Amendment of the United States Constitution, quoted from Wikipedia

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

– 10 Amendment of the United States Constitution, quoted from Wikipedia

It recently came to this blogger’s attention that the Federal Reserve Bank of Richmond located in the sovereign Commonwealth of Virginia has taken political criticism for flying a rainbow flag (traditionally viewed as a flag denoting support for the LGBT community and, for some, their struggle for equal protection under United States law and/or equal recognition of same sex marriage solemnized and/or legalized in one of the sovereign American States, the District of Columbia, or the Federal territories, if applicable). To quote directly from an article by Olympia Meola posted on the official website of the Richmond Times-Dispatch, TimesDispatch.com:

Del. Robert G. Marshall, R-Prince William, is asking the Richmond Federal Reserve Bank to remove the rainbow flag flying below the American flag outside of the building, calling its presence “a serious deficiency of judgment by your organization, one not limited to social issues.” In a letter to Richmond Fed President Jeffrey M. Lacker, Marshall says the homosexual behavior “celebrated” by the bank “undermines the American economy…”

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks noted above to read this story in detail in order to gain further insight into this developing situation.

This blogger must pause this analysis for a moment of personal observation. It is intriguing that Delegate Marshall would seem to be trying to scapegoat some of the blame for recent economic events upon the LGBT, Lesbian, Gay, Bisexual, and Transgender (transsexual, or “third sex“), community. This blogger must retort: how could the LGBT community “undermine” America’s economy? Explain this? Especially since a great deal of economic activity that produces revenue in America comes from married couples trying to make a living, build a home, and start a family. Is it in dispute that marriage and family generate economic benefits for America? If it is not, then the only way the LGBT community could be at fault for some hypothetical economic downturn would seem to arise from the fact that they have not started families (and therefore not generated the concomitant economic activity derived therefrom) due to the fact that they cannot gain the same legal recognition of their relationships in the same way that those in different-sex relationships are able to. This is especially true in the context of same sex bi-national couples as some of these relationships are separated by thousands of miles and jurisdictional boundaries due to the fact that federal enforcement of the so-called “Defense of Marriage Act” (DOMA) does not allow a same sex bi-national couple to petition for the same US visa benefits (such as the CR1 visa or the IR1 Visa, not to mention the K1 visa which is a US fiance visa) in the same manner as a different sex couple. There are currently American federal legislators such as Representative Mike Honda and Representative Jerrold Nadler who have introduced legislation, such as the Reuniting Families Act, the Uniting American Families Act, and the Respect for Marriage Act; which would, to one degree or another, at least end the current discrimination that the bi-national LGBT community faces when trying to reunite with family in the United States of America. Apparently this Federal Reserve Bank was flying this flag pursuant to a request from another organization which appears dedicated to the cause of LGBT equality:

The flag is being flown at the request of PRISM, a Richmond Fed group representing gay, lesbian, bisexual and transgender employees and allies.

This PRISM organization should be commended for their efforts on behalf of the LGBT community, but this blogger must say that he would like to see legislation passed which provides tangible benefits to the LGBT community rather than a gesture from a private corporation which, at least ostensibly, has no role in deciding American policy toward legal recognition of LGBT relationships. Others echoed some of these sentiments, but for what are, in this blogger’s personal opinion, the wrong reasons:

Its presence also prompted mention from Victoria Cobb, president of The Family Foundation in an email release on Wednesday. Although the Federal Reserve is a private entity, it is disappointing to see it participate in this celebration,” she said.

This blogger is always a bit skeptical when a group uses the term “family” when describing themselves as it is usually an indicator that such an organization has its own idea about what the definition of “family” actually is. Concurrently, such organizations are sometimes known to attempt to foist their own paradigm or definition of family upon others who may not necessarily share the same view. Therefore, readers are asked to always conduct their own research on all aspects of such issues in order to form their own well informed opinions.

This blogger must confess that this recent display of support for LGBT equality by the Fed seems a bit disingenuous considering the timing and circumstances. It has recently been reported on some mainstream and alternative media outlets that there are currently worries growing about the state of the American economy. Meanwhile it recently came to this blogger’s attention that the government of China is reported to have diminished their position in United States Treasuries. To quote directly from an article written by Terence P. Jeffrey and posted to the website CNSNews.com:

(CNSNews.com) – China has dropped 97 percent of its holdings in U.S. Treasury bills, decreasing its ownership of the short-term U.S. government securities from a peak of $210.4 billion in May 2009 to $5.69 billion in March 2011, the most recent month reported by the U.S. Treasury. Treasury bills are securities that mature in one year or less that are sold by the U.S. Treasury Department to fund the nation’s debt. Mainland Chinese holdings of U.S. Treasury bills are reported in column 9 of the Treasury report linked here

Readers are strongly encouraged to click upon the relevant hyperlinks noted above to read this article in full and learn more. This situation is only brought up in the context of this posting to elucidate the fact that the Fed is currently in something of a “pickle”. This news comes upon the heels of recent announcements (noted in a previous posting on this blog) that the USA and China are set to be engaging in cooperative efforts in the context of relations with the Association of Southeast Asian Nations (ASEAN). Clearly, current American relations with China and countries in Southeast Asia are multi-facted and complex so those interested in such topics are encouraged to conduct thorough research before forming opinions on issues associated with American, Chinese, and ASEAN economic policies and relations.

It was recently reported on the website Law.com that the Federal Reserve has come under intense scrutiny from legislators such as Representative Ron Paul for current policies supposedly being maintained by the Fed. To quote directly from an insightful article written by Shannon Green and posted on the website Law.com:

The Congressman criticized the Fed for its reluctance to disclose to the public when banks are unhealthy. Paul said the Fed’s practices of protecting banks’ privacy appears to be at odds with the U.S. Securities and Exchange Commission, which is pushing companies to reveal more information.

Readers are strongly encouraged to click upon the relevant hyperlinks noted above to read this article in full to gain more context.

Whether one agrees or disagrees with positions held by the various members of House of Representatives is not really relevant to the issue of the Fed’s decision to hoist this particular flag at this particular time. Although it is certainly a commendable gesture, this blogger’s response, with all due respect, must be: why so late, and why now? If the Fed is raising the Rainbow flag because they genuinely support LGBT Equality, then great; but if this institution is simply raising this flag because of political expediency or to score some sort of “political points”, then one must ask: why? Hopefully the LGBT community will see their equal rights fully vested soon and this valid grievance will be redressed. In the meantime, this blogger hopes that the American economy will rebound from any relative downturn to find itself more vibrant and dynamic than ever, but some developments take time. For those personally impacted by the current state of affairs: it is hoped that change will come sooner rather than later.

Readers should note that in the context of same sex marriage this blogger feels that fundamentally the issue of LGBT equality is an individual rights issue as the right to enter into a consensual relationship with whomever one wishes is an inalienable natural right reserved to the People notwithstanding the Constitution, but nevertheless enshrined within the provisions of the 9th and 10th Amendments noted above. The implied right of “free association” has also long been held to provide Constitutional protection for Americans wishing to form intimate associations with others. Concurrently, this blogger feels that where sovereign States have heeded the call of their citizenry to provide government licensure of same sex marriages or marital unions, then that licensure acts as an imprimatur of sovereign recognition which, in this blogger’s opinion, cannot be negated by the federal government and must be accorded Full Faith and Credit by sister States within the Union. Those unfamiliar with the Full Faith and Credit Clause should note that Congress can make rules regarding the effect of State law upon other States, but, in this blogger’s opinion, such law cannot be made to render the States’ laws ineffective, which is the current result of the federal government’s application of some, or all, depending upon circumstance; of the provisions of the so-called “Defense of Marriage Act“. This blogger must point out that although same sex couples ought to be able to get Full Faith and Credit for those marriages solemnized and/or legalized in one of the sovereign States of the United States of America, they may not necessarily see States which do not permit same sex marriage in an intrastate context engaging in the legal procedure of divorcing same sex couples as this blogger believes that one must utilize a “horizontal vs. vertical” analysis of the Full Faith and Credit Clause in the context of same sex marriage since there is both an intrastate and interstate component to such an analysis. Such an analysis could, at times, result in a situation where a State Court permits recognition of the fact that a same sex marriage exists in another State jurisdiction, but the Full Faith and Credit Clause’s provisions may not necessarily be interpreted to mean that States should be compelled to grant same sex divorces if the public policy of the State in question does not permit State sanctioned legalization or solemnization of such unions in the first place.

On a side note, this blogger just thought of an interesting hypothetical: could a federal Court with concurrent federal jurisdiction over State territory grant divorces for same sex couples who were married in another State jurisdiction (which allows same sex marriage) if the underlying State’s public policy runs counter to the notion of granting recognition for such unions? It would currently seem that pursuant to the Erie Doctrine the US Courts under such circumstances may be prohibited from undertaking certain functions pertaining to same sex marriages if the underlying State’s law does not recognize such unions. That stated, as of the time of this writing any such analysis remains mere speculation as a broadly binding legal opinion on these issue has yet to be handed down.

Readers interested in learning more about the struggle for LGBT Equality are encouraged to check out UnitingAmericanFamilies.Net, Lez Get Real, and/or the Immigration Equality Action Fund Blog.

For further related information please see: Rainbow Flag or US Company Registration.

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