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Integrity Legal

Posts Tagged ‘Same Sex Bi-National Couples’

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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28th May 2011

It recently came to this blogger’s attention that there appears to be some further international competition occurring within discussions in the context of the recently vacated IMF Managing Directorship. To quote directly from a very insightful article appearing on the website rediff.com:

The scramble for International Monetary Fund managing director’s chair has escalated into a war of sorts with developing nations calling for a change in the power equation. Most of the developing nations seek an end to European dominance over the IMF’s top job. Prime Minister Manmohan Singh on Wednesday said the developing countries should be together in the attempt to reform the global financial institutions.

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

It is interesting to note that this posting brings up the apparently increasing international intrigue which seems to exist as the jockeying for the position of IMF Managing Director appears to continue unabated. The aforementioned post was recently vacated upon the arrest of former Managing Director Dominique Strauss-Kahn in New York City. Mr. Kahn has yet to be proven guilty of a crime to the best of this blogger’s knowledge and therefore remains innocent until proven guilty pursuant to United States law. Relevant to that news the Secretary-General of the Association of Southeast Asian Nations (ASEAN) raised the issue of broader international representation within the IMF in favor of developing nations with specific emphasis upon an Asian context. This announcement occurred virtually simultaneously (in a relative context) with a joint statement from the so-called BRICS nations. To quote further from Rediff.com:

Although some European nations have declared their support for French Finance Minister Christine Lagarde, the BRICS nations — Brazil, Russia, India, China and South Africa — have issued a joint statement in Washington questioning the methodology of selection of IMF chief on the basis of nationality.

Although the BRICS have something relevant to say on that issue, certainly as relevant as the opinions held by the member nations of ASEAN, it is interesting to note that there appears to be some speculation regarding the efforts of China to secure some sort of position for a Chinese national within the International Monetary Fund. To quote further directly from Rediff.com

BRICS said it is time to ‘abandon the obsolete unwritten convention that requires that the head of the IMF be necessarily from Europe’. Meanwhile, unconfirmed news reports said that the European Union has offered the post of the deputy managing director of the IMF to a Chinese candidate in exchange for its support to Christine Lagarde.

Again, this blogger encourages readers to click upon the relevant hyperlinks above to learn more.

This blogger was somewhat amused upon reading the paragraph noted above as the scene is placed in perspective as the angling for positions at the IMF can be seen to have the same political dynamics that may develop when seeking positions in other official capacities, in both a national and international context, as competition for such positions can be as political as the competition in the United States of America for an office in the public service at both the federal and State levels. It would seem that under the circumstances there must be someone whom all of these various factions can agree upon, but by all appearances a consensus is far from reached. An inability to find someone to fill the void could theoretically require further discussion.

In political matters of a more national complexion for American readers it recently came to this blogger’s attention that headway might be made in the struggle for equal LGBT rights. To quote directly from a very inspirational posting by the administration of the UnitingAmericanFamilies.Net website:

Immigration Equality reports that a hearing on UAFA before the Senate Judiciary Committee has been scheduled for June 3. I just have to believe that every phone call, every letter, every blog entry has got to have contributed to this. But this is just a hearing – not a vote, and then, even if it gets voted out of committee in the Senate, the same will have to happen on the House side, and then there will have to be votes by the full House and Senate (IF there are enough votes in the Senate to stop a Republican filibuster). So don’t for a second think that our work is done! Call your two senators and your one Congressperson. Tell your story…

The administration of this blog strongly recommends that readers check out the hyperlinks noted above as well as the overall website as it has a great deal of very pertinent information regarding the Uniting American Families Act, previously introduced into the United States House of Representatives by Representative Jerrold Nadler. There is an especially intriguing article regarding the difference between passage of the Uniting American Families Act (UAFA) and the repeal or overturning of the so-called “Defense of Marriage Act” (DOMA), which this blogger finds repugnant to the Constitution on the grounds that it unnecessarily usurps the Several States’ sovereign power to license marriage within their jurisdiction, but it would appear that some feel the more modest measure of UAFA enactment would be a more effective remedy for this particular discrimination suffered by the American LGBT community, in both a bi-national and national context, at the hands of an overreaching federal government in a pique over the fact that they are not legally entitled to dictate to the several States what shall constitute a valid marriage. Six States, notwithstanding the District of Columbia, have already permitted such unions which in this blogger’s humble opinion, should be accorded Full Faith and Credit pursuant to the Full Faith and Credit Clause of the United States Constitution.

Bearing all of the above in mind, those interested in seeing the Uniting American Families Act, or any act like it; become law, are well advised to contact relevant federal representatives as any equitable relief to same sex bi-national couples currently separated by legislation such as DOMA would be better than the current legal situation in which they are now placed. Due to the currently applicable provisions of the so-called “Defense of Marriage Act” same sex bi-national married couples (even those who have a had a marriage solemnized and/or legalized by a sovereign American State) are not permitted to apply for the same United States immigration benefits as their different-sex counterparts. Passage and ultimate enactment of UAFA would at least permit same sex bi-national couples to petition and apply for substantially the same immigration benefits routinely accorded to different-sex couples.

For related information please see: Legal.

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29th March 2011

It recently came to this blogger’s attention that it would appear as though the Department of Homeland Security‘s United States Citizenship and Immigration Service (USCIS) is placing certain deportations on hold if such a proceeding pertains to the same sex spouse of a United States Citizen or Lawful Permanent Resident. To quote directly from the website dailynews-update.net:

The U.S. Citizen and Immigration Service confirmed Monday that it has temporarily put some deportations of partners in same-sex marriages on hold if they could be affected by the recent Department of Justice decision to no longer defend the Defense of Marriage Act.

Chris Bentley, Press Secretary for the USCIS said in a statement: “USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.”

The administration of this blog highly recommends that readers click on the above links to view this story in its entirety.

There are many “distinct legal issues” at play when it comes to the issue of same sex marriage and governmental recognition thereof. Those who read this web log with any frequency may have noticed that this blogger has dedicated a great deal of time to commenting and following this issue as it is truly a struggle for both the civil rights of American Citizens and Lawful Permanent Residents as well as a struggle for Federal recognition of sovereign State prerogatives on the issue of marriage.

Throughout the struggle for equal marriage rights for the LGBT community there have been many legislators who have supported the cause of same sex bi-national couples. Most notably, Representative Jerrold Nadler has repeatedly introduced legislation such as the Uniting American Families Act (UAFA) in an effort to make headway in securing immigration benefits for same sex bi-national couples in the same manner accorded to their different-sex counterparts. Meanwhile, as noted on this blog, groups such as Immigration Equality and their Immigration Equality Action Fund Blog have recently announced a position regarding DHS issuance of Green Cards for foreign same sex partners of American Citizens and Lawful Permanent Residents. Announcements such as these are important because they illuminate the extent to which the political and immigration systems are evolving in an effort to deal with this issue. Clearly, the LGBT equal rights movement has an organic base committed to seeing real change in the immigration system.

It was recently noted on this blog that the Obama administration’s Attorney General Eric Holder issued a letter to the Speaker of the House of Representatives noting that the administration no longer felt that pursuing so-called “Defense of Marriage Act“  (DOMA) cases was Constitutional. There are some who would argue that this action is contrary to the administration’s duty pursuant to United States law. Some members of Congress, as well as apparent presidential hopeful Newt Gingrich, have even made noises about impeachment regarding this issue. As of the time of this writing, such an action has not taken place.

This blogger personally disagrees with the American administration’s decision not to pursue DOMA cases because doing so could preclude Supreme Court adjudication due to lack of a “case or controversy” before that body. This blogger would also argue that the Supreme Court is the best adjudicator of this issue as there are many ramifications of same sex marriage recognition pursuant to the provisions of the Full Faith and Credit Clause of the United States Constitution.

How the whole issue of same sex marriage, and American government recognition thereof; will ultimately be decided remains to be seen, but for advocates of equal LGBT immigration rights this recent USCIS decision is definitely a positive one.

For related information please see: LGBT visa.

more Comments: 04

3rd February 2011

While online this blogger came across an interesting article regarding same sex marriage in the United States of America and the campaign to equalize marital rights for same sex couples. It would appear that Ms. Barbara Bush (no, not the former First Lady, but her granddaughter) has come out in favor of marriage equality. To quote directly from an article written by Candace Chellew-Hodge posted on the website religiondispatches.org:

First, it was Arizona Senator John McCain’s daughter Meghan who came out as a young Republican in full support of marriage equality for gays and lesbians. Now, the youngest daughter of former President George W. Bush is—like her mother Laura before her—publicly proclaiming her support for marriage equality. In a video released this week by the Human Rights Campaign, Barbara Bush, proclaims herself “a New Yorker for marriage equality.”

It is interesting to note that the issue of marriage equality does not seem to conjure up the same sort of reaction from members of different generations. Where at one time, the issue of same sex marriage and LGBT rights were once quite controversial, especially within the Republican Party, now it would appear that more cooler heads are prevailing on the subject as even religious people who have personal issues with the practice understand that personal liberty and the right to be with people that one loves are fundamental to both the human experience and the American Dream. However, not everyone feels the same way as a further quote from the aforementioned website points out:

Over at Focus on the Family’s Citizen Link, blogger Jenny Tyree isn’t surprised at Ms. Bush and Ms. McCain’s support for marriage equality. “It’s rather easy for 20-somethings—or millennials—to jump on the very tidy-looking ‘rights’ bandwagon that proponents of same-sex marriage have made marriage to be,’ she writes, rightly observing that the majority of people aged 18-29 support marriage equality.

Those reading this posting are well advised to go to religiondispatches.org to read the story in its entirety. That said, first, it should be noted that this blogger, a twenty-something, albeit a late twenty-something, himself, hates the use of the term “Millennials” when describing the generation of Americans coming of age in the new millennium. The reason for the dislike of this label stems more from the fact that it makes such people sound like flowers which bloom on a yearly basis rather than a smart savvy generation who can clearly articulate their opinions on a wide array of issues, but this is a digression.

Of interest to those seeking information regarding United States Immigration law is the fact that under the current legal framework of the so-called Defense of Marriage Act (DOMA) the Federal government refuses to recognize the validity of same sex marriage notwithstanding the fact that 5 Sovereign US States currently recognize and solemnize such unions. There are many who would argue that this legislation is unconstitutional on its face as it completely abrogates the States’ prerogatives with regard to marriages conducted within their jurisdiction. Furthermore, it is this blogger’s opinion that this current practice violates the Full Faith and Credit Clause of the US Constitution as well as depriving individuals of their right to equal protection under the US Constitution and the rights conferred under the theory of “substantive due process.” In an immigration context, there have been moves in the US Congress to deal with the issue of same sex bi-national couples. Most notable have been Representative Jerrold Nadler’s attempts to gain passage of the Uniting American Families Act (UAFA) which would create a US Visa category for “permanent partners” of United States Citizens and Lawful Permanent Residents. As of the time of this writing, this legislation has yet to be passed.

Under the government’s view of the law, bi-national same sex couples are not allowed to obtain US family visa benefits equal to those of their different-sex counterparts as doing so would be a violation of DOMA. Hopefully, with the support of a new generation of Americans these issues will be rectified and same sex couples will be afforded the same Constitutional liberties and immigration benefits as their different-sex counterparts.

Fore related information please see: Permanent Partner Visas.

more Comments: 04

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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23rd December 2010

Those who frequently read this web log may have noticed that this author occasionally comments upon the progress of American gaming legislation as recent legislative enactments have greatly altered the online gaming landscape. Although this issue would not seem similar to that of LGBT rights at first blush, there are some commonalities from a legal perspective which were recently noted in an article written by April Gardner for the website casinogamblingweb.com. To quote directly from this article:

US lawmakers took the first step on Saturday towards giving all Americans the same rights and freedoms when the Senate voted to repeal Don’t Ask, Don’t Tell. Online poker players are hoping this was the first step towards full freedom, and that the Unlawful Internet Gambling Enforcement Act repeal may be next.

The repeal of the policy referred to as “Don’t Ask, Don’t Tell,” was a significant achievement for proponents of LGBT rights. That said, as noted in a previous posting on this blog, the Defense of Marriage Act (DOMA) still continues to act as a barrier to equal immigration rights for same sex bi-national couples as well as LGBT bi-national couples. At one point, it was thought that the Defense of Marriage Act’s provisions might be circumvented in the context of US Immigration through enactment of the Uniting American Families Act (UAFA), but, alas, this legislation has yet to be enacted. Therefore, there are those who argue that there is still a long way to go in the fight for equal rights for the LGBT community. That said, the article went on to note:

The Don’t Ask, Don’t Tell law is one that Democrats have been pushing hard to repeal for several years. Another of those ill-advised laws on the radar for Liberals is the UIGEA. In recent weeks, Senator Harry Reid has proposed an online poker bill, but that legislation alone would not have overturned the UIGEA.

Although at first glance the UIGEA (the Unlawful  Internet Gambling Enforcement Act) and the policy of “Don’t Ask, Don’t Tell” would seem to be dissimilar in nature. In fact, these two issues touch upon a very significant issue which seems to be continuously debated in the United States. This issue transcends party ideology: personal freedom. The ability to freely, peaceably, and consensually associate with whomever one chooses is a fundamental right enshrined in the United States Constitution and the Bill of Rights. Many would argue that the law forbidding same sex bi-national couples, even those lawfully married in one of the 5 US States which currently solemnize same sex unions, from obtaining the same immigration rights as different sex couples is self-evidently a violation of the right to equal protection under American law. In this same vein, there are many who argue that Americans should have the ability to choose to participate in online gaming so long as they are above the lawful age to engage in such activity in their jurisdiction and the gaming operation is regulated so as to ensure that games are fair and the gaming operator is solvent. That said, the author of the aforementioned article seems pessimistic about the short term future of legislation designed to regulate and thereby legitimize online gaming:

It is unlikely that online gambling prohibition will be discussed in the closing days of the lame-duck session. For online poker players, however, they can take comfort in the Don’t Ask, Don’t Tell repeal.

The repeal shows that everything is worth the wait, as millions of gay and lesbians exhibited Saturday through tears of joy. It may take a little longer, but those tears of joy will eventually come for the millions of online gamblers in this country as well.

Truly, the repeal of “Don’t Ask, Don’t Tell,” was a monumental step forward for advocates of Equal Rights, but the issue of online gaming remains both controversial and complicated in the USA as many different jurisdictional issues arise especially in the context of the internet and World Wide Web. Therefore, it remains to be seen what the US Congress will ultimately decide to do with regard to online gaming, but hopefully the eventual outcome will result in positive benefits for players, operators, and the United States economy as this sector could prove to be an area of job growth for the USA in the coming years.

For related information please see: Online Gaming Law or Same Sex Marriage Visa.

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21st December 2010

This blog was not very adept at staying on top of the issues surrounding the so-called DREAM Act which would have made a great deal of progress in dealing with issues pertaining to the children of undocumented immigrants wishing to regularize their status in the United States. Recently, it was reported the the DREAM Act legislation was effectively derailed through use of cloture in the United States Senate. The American Immigration Lawyers Association has been working diligently to try to assist in this bill’s passage, but to no avail. To quote directly from the website of AILA:

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) is disappointed that, after successful passage in the House, the Senate failed to advance the bipartisan DREAM Act this morning. The legislation did not garner enough votes to overcome a procedural hurdle, even though with 55 votes it had the support of a majority of the chamber’s lawmakers.

“It was with a heavy heart that I watched the DREAM Act deferred to yet another Congress. After the historic House victory and the tremendous outpouring of grassroots support for this legislation that would help deserving young people, today’s failed cloture vote is a wrong-headed dénouement,” said AILA President David Leopold who watched the legislative proceedings from Capitol Hill.

“It was sad to see some U.S. Senators putting politics before principles to vote no on cloture, thereby attaching their names to the wrong side of history. The DREAM Act did not pass today, but inevitably it will be law.”

The DREAM Act’s failure is disappointing for many, but there are those who still believe that the most pressing issue in the realm of United States Immigration is that of the Uniting American Families Act (UAFA). Passage of this legislation would alleviate the current restrictions placed upon same sex or LGBT bi-national couples who wish to be reunited in the USA. Under the provisions of the so-called “Defense of Marriage Act” (DOMA) same sex couples, even those lawfully married in a jurisdiction within the United States of America, cannot obtain the same family based visa benefits compared to their different sex counterparts. There are many who seem to feel somewhat frustrated by the fact that other legislation such as the DREAM Act has gained traction on Capitol Hill while legislation such as UAFA, or legislation which includes  UAFA-like language, has not garnered such substantial support. To quote from a posting posted prior to the DREAM Act’s Senate vote by Melanie Nathan on the Lezgetreal.com blog:

The US has yet to enact laws that will prevent gay and lesbian couples from having to exile to stay with foreign partners or from partners facing deportation.  The discrimination in the USA is based on the fact that same-sex partners are specifically excluded from Federal rights – such as the right to sponsor a spouse for a green card, because of the Defense of Marriage Act. (DOMA)

There are some who would argue that DOMA violates the notions of state sovereignty and individual civil liberties enshrined in the US Constitution and Bill of Rights by depriving US Immigration benefits to LGBT couples while granting them to different sex couples. Bearing this in mind, it ought to be noted that the States’ Rights arguments in favor of overturning DOMA became much more potent after some American States began recognizing and solemnizing same sex unions. There are some who feel that the final decision in this matter may ultimately be made by the US Supreme Court as cases are currently proceeding through the US judicial system which could overturn DOMA. It still remains to be seen whether DOMA will remain in force, be circumvented through use of UAFA, or be overturned by the US Courts. In any case, there are many who hope that some sort of solution arrives soon as many bi-national families remain separated as a result of DOMA’s continued enforcement.

For related information please see: LGBT Visa.

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5th November 2010

As the recent mid-term elections dealt something of a blow to the Democrats in the United States Senate and a significant setback for said party in the United States House of Representatives many are pondering the future of legislation such as UAFA (Uniting American Families Act). Those unfamiliar with LGBT Immigration issues should note that under the Defense of Marriage Act (DOMA), same-sex bi-national couples are not permitted equal access to US family visa benefits even in cases where the same sex couple has legally solemnized a marriage within a jurisdiction of the USA. Due to the fact that bi-national LGBT couples still cannot receive equal immigration rights compared to their different-sex counterparts many couples are left separated from their loved one(s), sometimes by great distances. Other websites are noticeably vocal about their opinions regarding the future of UAFA, the past strategies utilized by LGBT Immigration Rights activists, and the future tactics that may be employed in the quest to see bi-national same-sex couples receive the same immigration benefits as different-sex couples. To quote directly from the website lezgetreal.com:

The Uniting American Families Act was introduced into Congress during January of 2009, by Rep. Jerold Nadler, D, NY.  Since that time there have been more co-sponsors than any other LGBT equality legislation on record.  Yet instead of pursuing UAFA as a stand alone Bill – with the fervor and impetus provided by the June 03, 2009 hearings in the Senate Judiciary Committee, Rachel Tiven, of Immigration Equality turned its limited resources to Immigration Reform and has spent the past 18 months chasing Comprehensive Immigration Reform for the longest time when it did not even exist. Now we have been included in the Menendez Senate version – but so what? Who in heavens name imagines Immigration Reform with Amnesty in it passing through the new Congress? And it is way to complicated and far behind to get through during the lame duck. I assure you of that!

The aforementioned website is often quite vocal in its support for LGBT Immigration rights. It would seem that some feel as though UAFA should not necessarily be pursued within the context of a broader Comprehensive Immigration Reform bill. This is likely due to the fact that Immigration reform remains a very controversial issue and some LGBT-rights advocates feel that pursuing a unilateral strategy of seeking equal equal rights for same-sex bi-national couples outside of Comprehensive Immigration Reform (CIR) would be more effective than trying to pass CIR with UAFA-like language included since CIR may not pass at all. Bearing this in mind the reader should note that the website ImmigrationEquality.org made a clarification regarding their overall strategy for securing equal rights for same sex bi-national couples:

Our philosophy has always been the same. We will pursue every available option for ending discrimination against our families. When we opened our Washington, D.C., office last year, we were clear: When it comes to passing UAFA, we mean business. Since then, our policy team has been working around the clock on a strategy that builds support for UAFA either as a stand-alone bill, or as part of comprehensive immigration reform. If Congress tackles comprehensive legislation – and it offers the first opportunity to win – we want to be part of that bill. And if the political reality becomes one that presents an opportunity to pass UAFA on its own, we want to be prepared to seize that opportunity as well.

It will be interesting to see what will happen to UAFA in the upcoming “lame duck” legislative session. There are some who would argue that a “lame duck” Democratic Congressional session is the perfect environment for pursuing UAFA as a stand alone piece of legislation since there are presumably still many supporters of such a policy on Capitol Hill who may have little to lose politically by supporting such legislation. As the future of UAFA has yet to be determined, but the plight of many same-sex bi-national couples remains untenable under the current circumstances.

It should also be noted that the US Congress is not the only forum in which this issue may ultimately be decided as the US Courts, and possibly the United States Supreme Court may be the body that ends up adjudicating this issue since the lower Courts’ hearing of cases challenging the Constitutionality of the Defense of Marriage Act (DOMA).

For related information please see: Same Sex Visa or K1 visa.

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11th October 2010

The issue of Comprehensive Immigration Reform (CIR) is frequently discussed on this blog as it could be one of the most significant issues of the forthcoming legislative sessions as so many individuals could be impacted by changes to the laws upon which the American Immigration system is based. With that in mind, this author discovered an interesting question and answer session between members of the American press and President Barack Obama. The following is a direct quotation from the transcript of this Q & A session as posted upon the American Immigration Lawyers Association website. To quote the transcript and the President directly:

I have consistently, even before I was a presidential candidate, but when I was a U.S. senator and when I was running for U.S. senator, said that we have to move forward on comprehensive immigration reform.

Bill Richardson and I have had a lot of conversations about this. This is a nation of immigrants. It was built on immigrants — immigrants from every corner of the globe who brought their talent and their drive and their energy to these shores because this was the land of opportunity. Now, we’re also a nation of laws so we’ve got to make sure that our immigration system is orderly and fair. And so I think Americans have a legitimate concern if the way we’ve set up our immigration system and the way we are securing our borders is such where people just kind of come and go as they please, well, that means that folks who are waiting, whether it’s in Mexico City or in Nairobi, Kenya, or in Warsaw, Poland — if they’re waiting there filling out their forms and doing everything legally and properly and it takes them five years or six years or 10 years before they’re finally here and made legal, well, it’s not fair to them if folks can just come and ignore those laws.

So what we — I think is so important to do is for us to both be a nation of laws and affirm our immigrant traditions. And I think we can do that. So what I’ve said is, look, yes, let’s secure our borders; yes, let’s make sure that the legal immigration system is more fair and efficient than it is right now because if the waiting times were lessened then a lot of people would be more prone to go through a legal route than through an illegal route; let’s make sure that we’re cracking down on employers who are taking advantage of undocumented workers to not pay them overtime or not pay them minimum wage or not give them bathroom breaks; let’s make sure that we’re cracking down on employers to treat all workers fairly. And let’s provide a pathway to citizenship for those who are already here, understanding that they broke the law, so they’re going to have to pay a fine and pay back taxes and I think learn English, make sure that they don’t have a criminal record. There are some hoops that they’re going to have to jump through, but giving them a pathway is the right thing to do.

Now, unfortunately, right now this is getting demagogued. A lot of folks think it’s an easy way to score political points is by trying to act as if there’s a “them” and an “us,” instead of just an “us.” And I’m always suspicious of politics that is dividing people instead of bringing them together. I think now is the time for us to come together. And I think that economically, immigrants can actually be a huge source of strength to the country. It’s one of our big advantages is we’ve got a younger population than Europe, for example, or Japan, because we welcome immigrants and they generally don’t. And that means that our economy is more vital and we’ve got more people in the workforce who are going to be out there working and starting businesses and supporting us when we’re retired, and making sure Social Security is solvent. All those things are important.

So this is a priority that I continue to have. Frankly, the problem I’ve had right now is that — and I don’t want to get into sort of inside baseball by Washington. But basically the rules in the United States Senate have evolved so that if you don’t have 60 votes, you can’t get anything through the United States Senate right now. And several years ago, we had 11 Republican senators who were willing to vote for comprehensive immigration reform, including John McCain. They’ve all reversed themselves. I can’t get any of them to cooperate. And I don’t have 60 Democrats in the Senate.

And so we’re going to have to do this on a bipartisan basis. And my hope is, is that the Republicans who have said no and have seen their party I think use some unfortunate rhetoric around this issue, my hope is, is that they come back and say, you know, this is something that we can work on together to solve a problem instead of trying to score political points. Okay?

One major concern voiced by those making visa petitions and applications outside of the United States is that of the seeming inequities posed by the possibility of some sort of an amnesty for undocumented aliens currently in the United States. Many prospective immigrants feel that it is somewhat unjust to allow those who broke immigration rules at the outset to be granted a benefit while those waiting for their visa petition or application to process through various agencies and Departments are not accorded any special treatment while they assiduously obey relevant American Immigration laws. When one ponders this situation it would seem rather obvious that the current system is in need of reform, but as the President’s remarks imply, the problem is multi-faceted and cannot be solved quickly or easily as so many individuals and organizations have considerable interests which could be effected by a change to current US Immigration laws, regulations, and policies. Hopefully, some sort of framework can be devised which will deal with the plight of undocumented aliens while maintaining some sort of equitable position for those who chose not to travel to the USA without proper documentation.

Meanwhile, there are many who hope that any Comprehensive Immigration Reform legislation will address the issues associated with same-sex bi-national couples who wish to enjoy immigration benefits equal to those of their different-sex counterparts. In the past, legislation such as the Uniting American Families Act (UAFA) was introduced in an effort to remedy the current restrictions imposed by provisions of the Defense of Marriage Act (DOMA), but such legislation has yet to be passed by the American Congress. It was recently announced that a bill proposed in the US Senate would address CIR issues and includes language designed to redress the discrimination imposed upon LGBT couples by DOMA. Although it remains to be seen how this issue will be resolved many are hopeful that Comprehensive Immigration Reform will redress many of the inequities arising from the current state of US law pertaining to immigration.

For related information please see: Comprehensive Immigration Reform or Same Sex Bi-National Visa.

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1st October 2010

As the previous post on this blog pointed out the issue of LGBT Immigration and the cause of same sex bi-national couples seeking equal rights in the realm of American immigration law has been an issue for some time. It has recently been noted on the lezgetreal.com website that Senator Robert Menendez has introduced a new proposal for Comprehensive Immigration Reform, to quote Melanie Nathan of the aforementioned website directly:

Kathy Drasky from OUT4Immigration, the group responsible for most of the grass root outreach and letter writing campaign announced on the www.Out4Immigration.org blog today that Senator Robert Menendez (D-NJ) has introduced comprehensive immigration reform (CIR) legislation that is truly comprehensive – it includes provision for same-sex binational couples.

“This monumental achievement comes after months of phone calls, letters and visits to Congressional representatives and their staffers by Out4Immigration, Immigration Equality and many, many other individuals and groups dedicated to ending immigration discrimination against LGBT Americans with foreign partners or, as we are collectively known, same-sex binational couples.

It remains unclear whether this legislation will ultimately be adopted by the United States Congress and become US law, but introduction of this legislation in combination with two pending cases in the United States Federal Courts drastically increases the odds of seeing at least some form of change in the restrictions imposed upon same sex bi-national couples under the language of the Defense of Marriage Act (DOMA).

That said, there are some who feel that passage of a Comprehensive Immigration Reform bill may not necessarily mean that this current bill’s UAFA-like language will be included in the final draft. As legislation does not become law until final adoption by both the United States Congress and Senate with Presidential approval. Should the President opt to veto the legislation, then there may be no change to the current immigration restrictions placed upon same sex couples (even those legally married in a US jurisdiction) seeking American visa benefits. Furthermore, should the language of this bill change prior to final adoption, then there may be no change to the current circumstances in which many same sex bi-national couples find themselves in. Therefore, until this legislation is fully adopted, it remains likely that supporters of this legislation, as well as opponents, will remain active in promoting their respective causes.

For related information please see: Same Sex marriage visa.

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