Integrity Legal

Posts Tagged ‘Same Sex Partner’

23rd August 2011

It recently came to this blogger’s attention that the Obama Administration’s Department of Justice has apparently filed a memorandum noting un-Constitutional discrimination imposed pursuant to the provisions of section 3 of the so-called “Defense of Marriage Act” (DOMA). In order to provide further insight this blogger is compelled to quote directly from the official website of Instinct Magazine, InstinctMagazine.com:

President Obama’s Department of Justice filed a memo in support of Edie Windsor’s case against the “Defense of Marriage Act” on Friday, marking the second time the Administration has officially stated its opposition to the discriminatory law.

Windsor, who was subjected to unjust federal taxes after her partner of 44-years passed away in 2007, filed a lawuit challenging DOMA. Last week, the DOJ added its weight of support to her claims.

Written in the memo:

Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court to guide the determination whether heightened scrutiny applies to a classification that singles out a particular group, discrimination based on sexual orientation merits heightened scrutiny. Under this standard of review, Section 3 of DOMA is unconstitutional.

But the DOJ states in the brief:

-DOMA is discriminatory

-Sexual orientation is an immutable characteristic

-Anti-gay discrimination on religious grounds is unconstitutional

-LGBTs make good parents

-DOMA is harmful to children…

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

As DOMA is currently interpreted and enforced by the American government same sex married couples cannot obtain immigration and visa benefits such as a K-1 visa, a CR-1 visa, or an IR-1 visa. This current state of affairs may contravene notions of Full Faith and Credit as enshrined in the United States Constitution’s Full Faith and Credit Clause. However, as there has yet to be a final resolution in the US Courts on the matter and as the United States Congress has yet to pass legislation such as the Respect for Marriage Act or the Uniting American Families Act the ultimate fate of same sex bi-national couples in America remains to be seen.

In news related to the Association of Southeast Asian Nations (ASEAN which includes the following jurisdictions: Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam), it recently came to this blogger’s attention that there are those noting the possibility of further ASEAN economic progress in the coming months and years. In order to provide further information on these issues it is necessary to quote directly from the website of the Bangkok Post, BangkokPost.com:

CIMB Thai Bank is developing an infrastructure base to cope with greater business opportunities offered by the Asean Economic Community (AEC) in 2015, said chief finance executive Narongchai Wongthanavimok. Its major shareholder, CIMB Group, expects the AEC will increase deals in the region. The group has a strong network across Asean that can support CIMBT’s expansion in the region. The bank developed a core banking system and improved its financial support to cope with international transactions, he said. The Malaysia-based CIMB Group has the largest branch network in Asean with 1,105 subsidiaries across Malaysia, Singapore, Indonesia and Thailand. It also has plans for branches in Cambodia, India and Sri Lanka. The financial group is helmed by people from the region and it reaches 81% of the Asean population, representing 89% of the region’s gross domestic product…

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

One could infer from the information above that the increasing economic integration of ASEAN and the emergence of the Asean Economic Community (AEC) may result in further economic benefits for the jurisdictions which comprise the organization and region. As noted above, the ramifications of these developments could have implications for economies such as those of India and Sri Lanka since the increasing business and trade occurring in Southeast Asia could “spillover” into those nations. Meanwhile, discussion pertaining to an ASEAN visa have yet to result in the creation of a tangible unified ASEAN travel document. How all of the developments noted above will evolve over time and the ultimate fate of ASEAN’s economy remains to be seen, but there is clearly a trend of increasing optimism regarding the future of Southeast Asia’s economy.

For information related 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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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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13th July 2011

It recently came to this blogger’s attention that the Judiciary Committee of the United States Senate is poised to hold a hearing to discuss the repeal of the so-called “Defense of Marriage Act” (DOMA) and a possible replacement piece of legislation referred to as the Respect for Marriage Act. To provide further information on these developments it is necessary to quote directly from the Washington Blade website, WashingtonBlade.com:

The Senate Judiciary Committee has announced that an anticipated hearing on legislative repeal of the Defense of Marriage Act has been set for July 20. According to a notice, the hearing on DOMA repeal legislation, also known as the Respect for Marriage Act, will take place July 20 at 10 a.m. in Room 226 the Dirksen Senate Office Building. Witnesses who will testify will be announced in the coming days. Sen. Patrick Leahy (D-Vt.), the chair of the Senate Judiciary Committee, is co-sponsor of the legislation that would repeal DOMA, which prohibits the federal government from recognizing same-sex marriages. In the Senate, the legislation is sponsored by Sen. Dianne Feinstein (D-Calif.)…

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

In the context of American immigration the provisions of the so-called “Defense of Marriage Act” (DOMA) result in a situation where the LGBT community is subject to legal discrimination. For instance, same sex bi-national couples cannot receive the same visa benefits as their different-sex counterparts. Therefore, visas such as the K-1 visa, the CR-1 visa, and the IR-1 visa are not available to those who have a same sex partner or for those couples who have entered into a same sex marriage. This discrimination occurs even where the same sex couple in question has been married in one of the sovereign American States or the District of Columbia where same sex marriages are legalized and/or solemnized. Currently, pending legislation such as the aforementioned Respect for Marriage Act (introduced in the United States House of Representative by Representative Jerrold Nadler, who also introduced the Uniting American Families Act designed to deal specifically with the immigration implications of DOMA) and the Reuniting Families Act (introduced by Representative Mike Honda) would address certain aspects of DOMA. In fact, the Respect for Marriage Act is designed to provide a doctrine of “certainty” whereby those couples married in one of the sovereign American States which recognize such unions can rely upon federal recognition of such unions regardless of their physical location.

In news pertaining to business in China and the United States of America it recently came to this blogger’s attention that China may be poised to import as much as 2 million metric tons of American corn. In order to provide more specifics it is necessary to quote directly from an article written by Tom Polansek and posted to the website of the The Wall Street Journal, WSJ.com:

The U.S. Department of Agriculture raised its estimates for corn exports to China fourfold, another nod to the country’s rising demand in a market under strain. In addition, the amount of the grain used to make ethanol is expected to eclipse its use in animal feed in the U.S. for the first time ever. China is now forecast to import 2 million metric tons of U.S. corn in the next marketing year, which begins on Sept. 1, compared to the previous projection of 500,000 tons…Traders also point to China as the likely buyer behind hundreds of thousands of tons that the USDA lists as going to “unknown destinations.” “The increase in Chinese imports is likely lagging what is really going to happen,” said Joel Karlin, analyst for Western Milling, a producer of animal feed in California. The USDA left its estimates for export to China in the current crop year, which ends Aug. 31, unchanged at 1.5 million metric tons…

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

The United States Department of Agriculture (USDA) is responsible for the regulation of American agricultural matters. This agency routinely publishes information related to the state of the American agricultural sector. It would appear that the rising demand from China for American agricultural products is not set to diminish anytime in the immediate future. The Chinese-American trade relationship is often noted for the fact that China exports a large amount of manufactured goods to America, but it seems as though less attention is paid to the amount of agricultural products which America provides to China. One issue on this blogger’s mind is the impact that the Association of Southeast Asian Nations (ASEAN) might have upon the demand for American agricultural products. As this regional grouping becomes increasingly geopolitically and economically potent it stands to reason that demand for agricultural products from the ASEAN jurisdictions (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam) may be on the rise. Hopefully any and all of these developments prove to be a boon to America’s farmers and agricultural community.

For information pertaining to same sex marriage recognition please see: Full Faith and Credit Clause.

For information related to American company registration please see: US Company Registration.

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31st January 2011

The issue of Federal recognition of same sex marriage is one which remains stuck in this bloggers mind like a splinter. The issue is vexing because the United States Federal government has clearly usurped sovereign State prerogatives on the issue while simultaneously trampling upon individual civil rights to equal protection under the laws of the United States as well as the fundamental Constitutional right to freely and peaceably associate with whomever one wishes to associate with. That said, the issue is, in this blogger’s opinion, best analyzed pursuant to the Full Faith and Credit Clause of the Constitution of the USA.

The Defense of Marriage Act (DOMA) currently prohibits the United States Federal government from recognizing a marriage or civil union between two individuals of the same sex. Most legal scholars approach the issue of same sex marriage and the preclusion of Federal recognition from a civil rights perspective. Although this blogger wholeheartedly agrees that LGBT rights issues do generally fall under the umbrella of civil liberties, the ramifications of DOMA upon the sovereign American States is the most unfortunate aspect of the current state of affairs.

To quote directly from Wikipedia.com:

In Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington, D.C., marriages for same-sex couples are legal and currently performed.

This is important to note as there are American States which explicitly prohibit the recognition of marriages between two people of the the same sex. Conversely, as noted above, there are currently five (5) states which allow same sex marriage. This has lead to a situation in which there is little interstate uniformity regarding this issue. As their site puts things so succinctly it may be best to quote Wikipedia.com’s entry on this issue further:

There has been much speculation on the clause’s possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. Between 1996 and 2004, 39 states passed their own laws and constitutional amendments, sometimes called “mini DOMAs,” which define marriage as consisting solely of opposite-sex couples. Most of these “mini DOMAs” explicitly prohibit the state from honoring same-sex marriages performed in other states and countries. Conversely, several states have legalized same-sex marriage, either legislatively or by state supreme court judgment.

The United States Supreme Court has not ruled on how (if at all) these laws are affected by the Full Faith and Credit Clause. However, in August 2007, a federal appeals court held that the clause did require Oklahoma to recognize adoptions by same-sex couples which were finalized in other states.[18]

If the Full Faith and Credit clause is given its traditional interpretation, it has no application to same-sex marriage, and the DOMA legislation is superfluous and even dangerous, as it may lead to a misconstruction of the Full Faith and Credit clause. If a state is required to recognize a same sex marriage, it will be pursuant to the Equal Protection Clause, as was the case with respect to interracial marriages.

The final paragraph of this citation is most notable to this blogger as it is the section in which he is in disagreement. To understand the reasoning behind this blogger’s disbelief in the assertions stated in this Wikipedia.com posting one must first read the actual text of the Full Faith and Credit Clause of the US Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It is virtually self-evident, in this author’s opinion, that the plain language of the Full Faith and Credit Clause will compel broad recognition of same sex marriage in the USA. Rather than looking at the issue from a civil rights perspective (which requires lengthy analysis into what are, in this author’s opinion, superfluous issues such as personal or religious feeling regarding same sex marriage which have no place in a reasoned legal analysis of the issue) simply examine the plain language of the Clause itself. The clause explicitly states that Full Faith and Credit SHALL be given to the public RECORDS of every other State.

What does this mean from a practical perspective? To use a hypothetical: two people of the same sex go to the State of Iowa (a jurisdiction which, according to a citation above, both recognizes and solemnizes same sex marriage) and get married. To quote the official Iowa County, Iowa website:

Iowa Vital Records are official registrations of births, deaths and marriages. Certified copies of Vital Records can be obtained from a County Recorder’s office or the Iowa Department of Public Health.

Once an official record is made of a registered same sex marriage does not the Full Faith and Credit Clause operate to compel interstate recognition of such a record? One would think, but there are exceptions to this kind of broad application of the Full Faith and Credit Clause as States which have clear public policies in conflict with foreign State Judgments, Acts, or Records may be permitted to ignore such Judgments, Acts, or Records (foreign judgments always seem to be accorded more preference from an interstate enforcement standpoint).

InterState recognition of same sex marriage, or as this blogger prefers to refer to it: Horizontal Full Faith and Credit of same sex marriage; is not really the main thrust of this post as the more pressing concern for the purposes of this article is Federal recognition of same sex marriage notwithstanding the Defense of Marriage Act (DOMA). The interstate implications of some states fully recognizing same sex marriage while other states fail to recognize such unions are interesting topics, but the main issue of this posting is what this blogger refers to as Vertical Full Faith and Credit. Namely, Federal recognition of same sex marriage lawfully solemnized in a sovereign State. Since when was the United States Federal government able to pick and choose which State laws it was willing to recognize? To quote directly from USLegal.com:

The full faith and credit doctrine as applicable to the federal courts in recognizing the records and judicial proceedings of state courts is contained in 28 U.S.C. § 1738.  The full faith and credit rule pertains to recognition by state courts of the records and judicial proceedings of courts of sister States; this includes every court within the United States.  This provision also includes recognition of the records and proceedings of the courts of any territory or any country subject to the jurisdiction of the United States.  By this provision, the federal courts are also bound to give to the judgments of the state courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of their sister States…

Pursuant to a plain language analysis of the Constitution it is this author’s opinion that the Defense of Marriage Act is unconstitutional as it requires the Federal government to disregard the Acts, Records, and Judgments creating same sex marital relationships within the jurisdiction of Sovereign States in direct violation of the plain language of the Full Faith and Credit Clause itself. Although there is a Civil Rights perspective to this issue, the major point that should not be overlooked is that fact that the US Congress is attempting, through enforcement of the Defense of Marriage Act, to dictate to the States what shall constitute a valid marriage. In the past, legalization and solemnization of marriage was within the exclusive bailiwick of the State especially as such matters tend to pertain to public health and safety issues.

This has very large practical implications especially for same sex bi-national couples as the Federal government, pursuant to DOMA, cannot grant American family visa benefits to the same sex partner of a US Citizen (notwithstanding the fact that the couple may have solemnized a legally binding marriage within one of the sovereign American States that allows same sex marriages). Hopefully this injustice will be dealt with soon as it is unfortunate that the rights of the States and the people are being disregarded as a result of DOMA’s continued enforcement.

In recent months, efforts have been made to pass legislation such as the Uniting American Families Act (UAFA). Bills such as this would mitigate some of the discrimination which is routinely deployed against same sex bi-national families as the language of the proposed bill (and that of those similar to it) would allow for the “permanent partners” of American Citizens and lawful permanent residents to apply for US visa benefits in much the same manner as foreign fiancees and spouses of US Citizens and lawful permanent residents. This legislation, and that like it, is a good step in the right direction, but it does not address the myriad legal rights and privileges routinely deprived to same sex couples under the current Federal regime.

For related information please see: Same Sex Partner Visa.

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