Integrity Legal

Posts Tagged ‘Representative Jerrold Nadler’

26th August 2011

It recently came to this blogger’s attention that the National People’s Congress in China has apparently ratified a protocol regarding that nation’s Treaty of Amity with the Association of Southeast Asian Nations (ASEAN). In order to provide further insight it is necessary to quote directly from the official website of Xinhua, XinhuaNet.com:

BEIJING, Aug. 26 (Xinhua) — The Standing Committee of the National People’s Congress (NPC), or China’s top legislature, on Friday ratified the Third Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia. According to Vice Foreign Minister Cui Tiankai, ratifying the protocol will help exhibit China’s political support for the Association of Southeast Asian Nations (ASEAN) and boost ties between China and the European Union. Cui was entrusted earlier by the State Council to brief the NPC Standing Committee on the basic information of the protocol. The Treaty of Amity and Cooperation in Southeast Asia was signed in February 1976. It was one of the basic political documents of the ASEAN…

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

It should be noted that the United States of America and the Kingdom of Thailand maintain the US-Thai Treaty of Amity which could be described as similar to the aforementioned Sino-ASEAN agreement mentioned above. There has been recent speculation regarding the future of both the Chinese and ASEAN jurisdictions’ economies with many noting the possibility of a very bright economic outlook for both locations as well as Greater Asia as a whole. Meanwhile, there has been speculation that ASEAN could see a unified ASEAN visa scheme, but such developments have yet to come to fruition.

In news related to the struggle for LGBT equality it recently came to this blogger’s attention that some of the Citizens of the sovereign State of Maryland have recently petitioned one of their Senators regarding the so-called “Defense of Marriage Act” (DOMA). In order to provide further insight it is necessary to quote directly from the website of On Top Magazine, OnTopMag.com:

More than 3,000 people have signed on to a petition urging Maryland Senator Barbara Mikulski to co-sponsor a bill that would seek to repeal the Defense of Marriage Act (DOMA), which forbids federal agencies from recognizing the legal marriages of gay and lesbian couples. Freedom to Marry will present Mikulski with the petition on Friday at 3PM, the group said in an email to On Top Magazine. “Recent census data show nearly 17,000 same sex couple living across the state of Maryland,” Freedom to Marry President Evan Wolfson said in a statement. “These loving, committed couples and their families are harmed every day by the denial of marriage, and by federal discrimination against the marriages they are able to celebrate across the border in the District of Columbia and six other states.” “We hope that Senator Mikulski will heed the call of her constituents and join us in ending marriage discrimination at the federal level and in Maryland,” he added…

The administration of this web log asks readers to click upon the relevant hyperlinks noted above to learn more from this interesting article.

Frequent readers of this blog may recall that the provisions of DOMA currently preclude visa benefits such as the CR-1 visa, the IR-1 visa, and the K-1 visa to those in a same sex marriage even if said marriage has been legalized and/or solemnized by one of the sovereign American States which recognize such unions. Federal Legislators such as Representative Jerrold Nadler have sponsored legislation such as the Respect for Marriage Act and the Uniting American Families Act in an effort to end this discrimination, but as of yet it remains to be seen if said legislation will see passage.

For those interested in information pertaining to Southeast Asia please see: Legal.

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24th August 2011

It recently came to this blogger’s attention that a Professor in the sovereign State of Utah has apparently filed a declaration regarding statements pertaining to the so-called “Defense of Marriage Act” (DOMA). In order to provide further insight it is necessary to quote directly from the website of Talking Points Memo, TalkingPointsMemo.com:

A University of Utah professor who specializes in the study of affectional bonds and same-sex sexuality is accusing House Speaker John Boehner’s legal team of distorting her research. Professor Lisa A. Diamond, whose work was cited by the legal team arguing on behalf of the U.S. House of Representatives that the Defense of Marriage Act is constitutional, filed a declaration in federal court stating that the legal team “misconstrues and distorts my research findings, which do not support the propositions for which BLAG cites them.” The legal team chosen by Boehner, headed by former Solicitor General Paul Clement, quoted Diamond as writing that there “is currently no scientific or popular consensus on the exact constellation of experiences that definitively ‘qualify’ an individual as lesbian, gay, or bisexual” as support for their claim that sexual orientation isn’t immutable. “That is incorrect,” writes Diamond. “My quoted statement concerns the scientific and popular debates over the defining characteristics of LGBT individuals and it says nothing whatsoever about the immutability of sexual orientation itself…”

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

The provisions of DOMA currently result in a situation where same sex bi-national couples are unable to enjoy the same visa benefits as their different sex counterparts most particularly in the form of the K-1 visa, the CR-1 visa, and/or the IR-1 visa. Currently, proposed legislation such as Representative Jerrold Nadler‘s Respect for Marriage Act and Uniting American Families Act would ameliorate this situation, but passage of said legislation remains to be seen.

In news pertaining to the Association of Southeast Asian Nations (ASEAN), it recently came to this blogger’s attention that the Secretariat of ASEAN is apparently releasing information regarding human trafficking. To provide further insight this blogger is compelled to quote directly from the official website of the Malaysian National News Agency website, Bernama.com:

JAKARTA, Aug 24 (Bernama) — The Secretariat of Asean on Wednesday made public the Progress Report on Criminal Justice Responses to Trafficking in Persons in the Asean Region, says Vietnam News Agency (VNA). The report highlighted achievements made by Asean during the past decade in the fight against human trafficking and its forthcoming challenges in the near future. It also underlined the need to perfect the legal system on transnational crimes, promoting regional cooperation, raising efficiency of verifying, prosecuting and convicting human trafficking criminals as well as protecting and helping victims. Addressing the ongoing 11 th Senior Officials Meeting on Transnational Crime (SOMTC) here, Asean Secretary General Surin Pitsuwan said that the report will provide a cooperation model for countries as well as other regions…

This blogger asks readers to click on the relevant links above to read more from this interesting article.

Human trafficking is a problem that many nations tackle with and it is genuinely reassuring to see the jurisdictions which comprise ASEAN (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam) taking the time to analyze this issue as it is certainly a problem deserving of attention.

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

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22nd August 2011

Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law. For example in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover for his loss of consortium while his wife languished after a carriage accident. However, once she died from her injuries, his right to recover for lost consortium ended. After the enactment of the Lord Campbell’s Act (9 and 10 Vic. c. 93) the English common law continued to prohibit recovery for loss of consortium resulting from the death of a victim. The availability of loss of consortium differs drastically among common law jurisdictions and does not exist at all in several of them. Damages for loss of consortium are considered separately from, and are not to be confused with compensatory damages

Quoted Directly From Wikipedia, Wikipedia.org

Up until this point in time, the issue of federal recognition of same sex marriage was of primary interest to this blogger due to the immigration implications; but after further contemplation on a currently pending situation involving a same sex married couple in the sovereign State of California this blogger felt it noteworthy to discuss some immigration matters and how they may relate to the concepts noted above. However, in order to provide further context this blogger is compelled to quote directly from the official website of the Huffington Post, HuiffingtonPost.com:

Due to a surprise announcement by the Obama administration to consider same-sex marriage in deportation decisions, as reported by The Huffington Post, Australian-born Anthony Makk, who is currently facing deportation, may be able to stay in the U.S. with his husband Bradford Wells. Earlier this month, The Huffington Post reported the story of Anthony Makk and Bradford Wells, a same-sex married couple that faces deportation for Makk when his visa expires on August 25. Makk and Wells have lived together for 19 years and were legally married in Massachusetts in 2004. Makk is also the primary care taker for Wells, who suffers from AIDS…

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

At the time of this writing it does appear that the United States Citizenship and Immigration Service (USCIS) may not remove the same sex spouse of an American Citizen suffering from a debilitating illness. However, this should not be viewed as a foregone conclusion. Moreover, it should also be noted that the Commonwealth of Massachusetts‘ reserved right to marry those in her jurisdiction predates the US Constitution, the Articles of Confederation, and the Declaration of Independence. Therefore, it could be reasonably argued that where a State with such a constitution has manifested her political will in favor of legalizing and/or solemnizing same sex marriage the federal government should accord said unions Full Faith and Credit pursuant to the Full Faith and Credit Clause. It should be noted that proposed legislation such as Representative Jerrold Nadler‘s Respect for Marriage Act would seem to provide Full Faith and Credit to States which license same sex marriage while allowing other jurisdictions to retain their own interpretation of marriage through a “certainty” scheme. That stated, such a scheme does not deal with the dilemma in the instant case. The Uniting American Families Act appears to have been drafted to specifically address the immigration implications of the so-called “Defense of Marriage Act” (DOMA) since DOMA specifically precludes federal recognition of same sex marriage thereby denying visa benefits such as the K-1 visa, CR-1 visa, or the IR-1 visa for same sex couples.

This blogger must wonder whether the US Courts, in an effort to prevent loss of consortium in the case noted above, could use an equitable remedy such as an injunction to impose something akin to a temporary restraining order upon the USCIS thereby placing a hold upon the removal with an eye toward sorting out the Full Faith and Credit issues: would this not be especially poignant in a forum such as the Massachusetts Federal Courts, assuming jurisdiction, due to the Erie Doctrine since the underlying marriage took place therein? The ultimate fate of the same sex couple noted above remains to be seen, but there is hope as recent developments would seem to suggest that there could ultimately be a positive outcome.

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

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20th August 2011

It recently came to this blogger’s attention that the chairman of the Malaysian Securities Commission was recently noted for comments regarding the future economic prospects of the ASEAN Community. In order to provide further information regarding these developments it is necessary to quote directly from the official website of The Philippine Star, PhilStar.com

KUALA LUMPUR (Xinhua) – As global stock markets tumbled over the week in response to the US credit woes and the Europe debt crisis, Malaysia’s Securities Commission chairman, Zarinah Anwar holds a positive view that markets in Southeast Asia is strong enough to fend off the crisis…”Domestic demand is still strong and ASEAN (Association of Southeast Asian Nation) has to continue to look at its neighbours to pick up selective demands that may arise as a result of the economic woes in our traditional export markets,” she aded. ASEAN’s effort towards an integrated regional economy, with 2015 as a deadline, also contributed to ASEAN’s sound environment…Countries like Malaysia, Singapore, Thailand and the Philippines are in the process of developing a cross-trading arrangement linking their trading system, giving investors direct access to other markets. Currently, Bursa Malaysia, Singapore Stock Exchange, Vietnam’s Hanoi Stock Exchange and Hochiminh Stock Exchange, the Indonesia Stock Exchange, the Philippines Stock Exchange Inc have already linked up on a website labelled as “ASEAN exchanges” which provides investors with access to check the top stocks in the region…[sic]

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

There has been a great deal of discussion surrounding the future of the economies in the jurisdictions comprising the Association of Southeast Asian Nations (ASEAN: Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam). In fact, there has even been discussion about a possibly unified ASEAN visa similar to that utilized by some of the members of Schengen area in Europe. As of yet, such discussion has yet to yield tangible results, but there are those who hope that further discourse on the topic may result in a unified visa of some kind coming into being. Hopefully, ASEAN continues along the path of economic growth to the benefit of all concerned.

In news pertaining to the continuing struggle for LGBT Equality it recently came to this blogger’s attention that the American government appears to have noted the un-Constitutionality of certain provisions of the so-called “Defense of Marriage Act” (DOMA) in the US Courts. In order to provide further insight it is necessary to quote directly from the website of Metro Weekly, MetroWeekly.com:

Back on July 1, the Department of Justice took a big step in defining what its Feb. 23 decisionthat the federal definition of marriage found in Section 3 of the Defense of Marriage Act is unconstitutional would look like. In Karen Golinski’s case seeking equal health benefits for her wife, DOJ argued that the case should not be tossed out of court and should be allowed to proceed. On Aug. 19, DOJ went a step further, telling a judge in the Southern District of New York that Edith Windsor — who is seeking a refund of the more than $350,000 estate tax bill that she had to pay because her marriage to her deceased wife, Thea Spyer, was not recognized by the federal government — should be granted that refund because DOMA’s federal definition of marriage is unconstitutional…This is the first time the government stated affirmatively in court that a lawsuit requiring that Section 3 of DOMA be struck down as unconstitutional should succeed…[sic]

This blogger asks readers to click upon the hyperlinks above to learn more about these developments in detail.

For those unfamiliar with the current immigration implications of DOMA it should be noted that said legislation precludes accordance of US visa benefits such as the K-1 visa, the CR-1 visa, or the IR-1 visa to same sex couples even where the couple has entered into a same sex marriage in a American State jurisdiction which legalizes such unions. Currently, proposed legislation such as Representative Jerrold Nadler‘s Uniting American Families Act and the Respect for Marriage Act would rectify this current discrimination to one degree or another, but the ultimate fate of these bills remains to be seen.

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

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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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10th August 2011

It recently came to this blogger’s attention that the Department of Homeland Security‘s United States Citizenship and Immigration Service (USCIS) is apparently compelling an Australian man, who is currently a partner in a same sex marriage with an American Citizen, to depart the USA. In order to provide further clarity on this situation it is necessary to quote directly from the official website of the San Fransisco Chronicle, SFGate.com:

Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse. Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk’s application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples. The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems…

The administration of this web log encourages interested readers to click upon the relevant hyperlinks noted above to learn further details from this interesting story.

Frequent readers of this web log may recall that the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude the federal government from recognizing a same sex marriage for purposes of distributing federal benefits. Therefore, same sex bi-national couples cannot acquire the same travel documents and visa benefits (such as the K-1 visa, CR-1 visa, or an IR-1 visa) as a different-sex couple notwithstanding the fact that the couple may be legally married in one of the State jurisdictions which legalize and/or solemnize such unions. It should be noted that legislation such as Representative Jerrold Nadler‘s Uniting American Families Act (UAFA) or the Respect for Marriage Act would rectify this situation to one degree or another. As of the time of this writing it remains to be seen whether this legislation will ultimately see enactment.

Meanwhile, in news of further interest to those who follow immigration matters; it recently came to this blogger’s attention that DHS has issued an announcement regarding a nationwide program to be administered by the United States Immigration and Customs Enforcement Service (USICE, sometimes colloquially referred to as ICE). To provide further insight it is necessary to quote directly from the official website of the Washington Times, WashingtonTimes.com:

The District could be forced to participate in an immigration-enforcement program now that the federal government has issued a letter to states that voided their participation agreements and emphasized the program’s mandatory nature. The Department of Homeland Security sent the letter last week to governors of 39 states, including Maryland and Virginia, after three states expressed interest in opting out of their contracts with the federal Secure Communities program. The program allows U.S. Immigration and Customs Enforcement to access fingerprints collected by state and local law enforcement and shared with the FBI. It was started in 2008 and has helped ICE identify and deport more than 86,000 convicted criminal aliens. “This is to avoid any further confusion,” ICE spokeswoman Nicole Navas said Monday. “We’ve made it clear. There’s no opting out.” DHS voided the agreements to clarify that they essentially served no purpose, and that states are required to remain in the program. Federal officials no longer will seek agreement with newly enrolled states and jurisdictions, and will simply notify them when they plan to implement the program…

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

Matters pertaining to immigration can be difficult to understand especially in the context of the United States Constitution since many of the immigration-related powers of the American Legislature and Executive are plenary in nature. How such powers interact with States’ Rights can be difficult to ascertain as the legal principles involved can be quite subtle. In any case, the ultimate resolution of this issue remains to be seen. Hopefully, a solution will present itself which will prove amenable for all concerned.

For information related to United States immigration from Thailand please see: Legal.

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3rd August 2011

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) is taking steps to encourage entrepreneurial immigration to the United States of America. In order to provide further insight it is necessary to quote directly from the official website of the DHS, DHS.gov:

WASHINGTON—Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment. “The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.” “Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.” These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs…

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

In previous postings on this blog it has been noted that travel documents such as the EB-5 visa can be a satisfactory tool for those wishing to travel to the United States for the purposes of investing and residence. It should be noted that there are other employment based visa categories such as the EB-2 visa, the EB-3 visa, the EB-1 visa, and the EB-4 visa which may be used by individuals who find themselves in differing factual circumstances. Meanwhile, visas such as the L-1 visa and the E-2 visa are often used by non-immigrants who wish to travel to the United States of America for the purpose of either undertaking specialized employment or investing in a small business therein. That stated, those seeking immigration benefits are well advised to contact an American immigration lawyer since issues associated with American immigration can be legally complex and the process can sometimes prove cumbersome for those unaccustomed to dealing with matters pending before various agencies within the American federal bureaucracy.

In news pertaining to the continuing struggle for LGBT Equality, it recently came to this blogger’s attention that an attorney for the United States government has filed a response in a case involving a New York woman suing the government to have her same sex marriage recognized. To quote directly from a posting by Mark Hamblett for the New York Law Journal on the website Law.com:

Congress has fired back in a lawsuit challenging the constitutionality of the Defense of Marriage Act’s definition of marriage as between one man and one woman. In a motion to dismiss in the Southern District, former solicitor general Paul D. Clement and his legal team argue that the act, 1 U.S.C. §7, is entitled to a presumption of constitutionality, and that U.S. Supreme Court precedent holds that an exclusively heterosexual definition of marriage does not offend the equal protection clause. The motion came in Windsor v. United States, 10-cv-8435, which was brought by Edith Schlain Windsor…In his papers yesterday, Mr. Clement said that rational basis review, not heightened scrutiny, is the appropriate standard in judging the constitutionality of the statute and §3 “easily” passes that less exacting standard. In support of that view, he argues that DOMA does not infringe on the fundamental right to marriage, that “same-sex marriage is not a fundamental right” and that “DOMA implicates federal benefits, not the right of same-sex couples to marry.” Under the rational basis test, Mr. Clement said, Congress could have acted rationally “in the face of the unknown consequences of a proposed novel redefinition of the foundational social institution,” and it could have acted rationally to “protect the public fisc” in the balance it strikes in allocating federal burdens and benefits, and providing “consistency in eligibility for federal benefits based on marital status.” Congress also could have acted rationally “to avoid creating a social understanding that begetting and rearing children is not inextricably bound up with marriage” and to “foster marriages that provide children with parents of both sexes.”

This blogger recommends that readers click upon the hyperlinks above to read this article in detail as it is very enlightening about this case and the issues associated therewith.

The case noted above is interesting insofar as the underlying same sex marriage appears to have been legalized in Canada as opposed to another United States jurisdiction. How this fact will color a final adjudication remains to be seen, but it could have an adverse impact upon the outcome of the case as Full Faith and Credit issues pursuant to the Full Faith and Credit Clause of the United States Constitution may not be relevant under the circumstances. Frequent readers may recall that in an immigration context the so-called “Defense of Marriage Act” precludes immigration benefits such as the K-1 visa, the CR-1 visa, or the IR-1 visa from same sex bi-national couples even if they have been married in an American jurisdiction which legalizes and/or solemnizes same sex marriages. Legislation such as Representative Jerrold Nadler‘s Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) would ameliorate this discrimination, but such legislation has yet to see enactment.

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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24th July 2011

It recently came to this blogger’s attention that there is some speculation regarding the possibility that some sort of repeal of the so-called “Defense of Marriage Act” (DOMA) may not necessarily be forthcoming. To provide further insight it is necessary to quote directly from the official website of the Lez Get Real website, LezGetReal.com:

None of us have seriously expected that the House of Representatives would take up the Respect for Marriage Act. After all, the Republicans have to try and hold onto what is left of their base, and at this point, they are just scared that the rest of the country is going to turn their back on them…It is not surprising. Boehner is wasting valuable money in order to defend the Defense of Marriage Act in court after parts of it were declared unconstitutional and President Barack Obama abandoned the defense of it on that basis…

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

The question that this blogger would pose regarding Republican support (or lack thereof) for at least a change to DOMA is this: since when did Republicans casually overlook glaring issues such as that of States’ Rights? Pursuant to the Full Faith and Credit Clause of the Constitution of the United States of America public acts, records, and judicial proceedings of every State shall receive Full Faith and Credit from that State’s sister States. Although the federal government is permitted to regulate as to the “effect” of such acts, proceedings, and records; it would appear to this blogger that said government is not permitted to abrogate State acts, proceedings, and records via mere “non-recognition”. That stated, a final resolution on these issues has yet to be seen.

On a related topic, it would appear that the sovereign State of New York has heeded the call of her citizenry and thereby placed them one step closer to the ultimate goal of full LGBT Equality. In order to provide sufficient insight it is necessary to quote directly from the official website of the New York Post, NYPost.com:

The Big Apple said “I do” to a new era of gay rights this morning and celebrated New York City’s first same-sex weddings. Chelsea residents Phyllis Siegel, 77, and Connie Kopelov, 85, got hitched at the marriage bureau on Worth Street in Lower Manhattan at 9:02 a.m., setting off wedding bells across Gotham. City Council Speaker Christine Quinn, who is openly gay, witnessed the ceremony that was officiated by City Clerk Michael McSweeney. ‘‘It was just so amazing,’’ said Siegel, who has been with her love for 23 years. ‘‘It’s the only way I can describe it. I lost my breath and a few tears.’’ She added: ‘‘This is the first day of the rest of our lives…’’

The administration of this web log asks readers to click upon the hyperlinks noted above to learn more from this well written article.

The State of New York joins other American States such as the Commonwealth of Massachusetts in providing marriage benefits to same sex couples. Frequent readers of this blog may note that this news is perhaps cold comfort to the many same sex bi-national couples who are currently separated due to enforcement of the provisions of DOMA. Pursuant to the language of DOMA, even those who have entered into a same sex marriage in one of those jurisdictions in which said unions are legalized and/or solemnized are not permitted to obtain visas such as the K-1 visa, CR-1 visa, or IR-1 visa in the same way as different-sex couples. That stated, proposed legislation such as Representative Jerrold Nadler‘s Uniting American Families Act (UAFA) or the Respect for Marriage Act (RFMA) should resolve these issues, but passage of said legislation remains to be seen.

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