Integrity Legal

It recently came to this blogger’s attention that some have been discussing tactics underlying the overall political strategy pertaining to passage of the Uniting American Families Act (UAFA), a recently introduced piece of legislation by Representative Jerrold Nadler designed essentially to circumvent the current prohibition of Federal recognition for same sex marriages. Such marital unions are currently legalized and/or solemnized by multiple sovereign American States as well as the District of Columbia. To quote directly from the article No Republicans, No News posted on the website UnitingAmericanFamilies.Net:

The UAFA-related blogosphere is alive with reports of the bill being re-introduced into Congress. This will seem like a wet blanket, but my jaded response is… so what? The bill (and its predecessor) has been introduced into every subsequent Congress since the year 2000, and it has never come close to passing.

The administration of this web log strongly encourages readers click upon the hyperlinks above to read more from the enlightening piece.

Of especial interest to this blogger was the analysis of the current political predicament facing proponents of UAFA or a bill, such as the Reuniting Families Act, which utilizes UAFA-like language. To quote further from the aforementioned article:

It’s no longer the Dems who need to be convinced. We will NOT get our basic human rights until we start to convince Republicans — whether right-wing, Tea-Party, or “moderate” (if such a thing still exists). It’s a simple game of numbers.

This is an insightful notion as it is so acutely correct. The way for the LGBT Community, same sex bi-national couples, and anyone else who is a victim of government discrimination based upon sexual orientation to effect change is through gaining broad based, possibly bi-partisan, support (under the circumstances the word “bi-partisan” simply does not seem accurate as this truly is an issue of personal liberty and not party ideology). Importantly, supporters of UAFA and bills similar to UAFA have one relatively new political “arrow” in their “quivers” and that arrow is States’ Rights. The 10th Amendment of the United States Constitution reserves certain rights to the Several Sovereign States. Marriage, and the licensure thereof, has traditionally been viewed as a purely intraState matter. Therefore, when the Defense of Marriage Act (DOMA) came into conflict with State policies such as those currently maintained by the Commonwealth of Massachusetts issues surrounding the 10th Amendment came to the foreground of the debate.

The fate of DOMA, UAFA, the Reuniting Families Act, and the Respect for Marriage Act remains to be seen, but one thing is clear, at least in this blogger’s personal opinion: the issue of same sex marriage may become one of those issues that, in politics, is truly a “game changer”.

For related information please see: Full Faith and Credit Clause.

Tags: 10th Amendment, LGBT, Representative Jerrold Nadler, Same Sex Bi-National Couple, UAFA News, Uniting American Families Act, UnitingAmericanFamilies.Net, US LGBT visa, US Visa
Posted in same sex visa | No Comments »

It recently came to this blogger’s attention that a Congressman from the sovereign State of California has recently introduced legislation which is designed to improve the current American immigration system. It would appear that one of the proposed improvements would also provide immigration benefits to same sex bi-national couples. To quote directly from the Washington Blade at WashingtonBlade.com:

A U.S. House member from California on Thursday introduced family immigration legislation that includes language allowing gay Americans to sponsor their foreign partners for residency in the United States. Rep. Mike Honda (D-Calif.) introduced the Reuniting Families Act, which has a provision that would protect bi-national same-sex couples as one of its six prongs to keep families together in the country.

Readers of this web log are strongly encouraged to click upon the hyperlinks above to find out further details on this unfolding story.

This blogger personally found it interesting that this bill would also address grievances held by Lawful Permanent Residents (Green Card holders) and their families. To quote further from the aforementioned article:

In addition to including UAFA-like language, Honda’s legislation would help shorten the wait times that can keep legal immigrants and their overseas loved ones separated for years. The bill would classify spouses and children of permanent U.S. residents as “immediate relatives” and exempt them from numerical caps on immigration.

It is genuinely unfortunate that some find themselves caught up in the immigration process for substantial periods of time awaiting adjudication of their immigration and visa matters.

Those unfamiliar with the provisions of the Uniting American Families Act (UAFA), as recently re-introduced in the Federal legislature by Representative Jerrold Nadler, should note that this legislation would circumvent the current provisions of the so-called “Defense of Marriage Act” (DOMA) which currently separates a large number of bi-national couples since the federal government will not recognize same sex unions for purposes of distributing federal benefits. Upon enactment of legislation similar to that noted above, same sex bi-national couples could be eligible to receive American immigration benefits in the form of travel documents such as the K-1 visa (US fiance visa) or the CR-1 visa (US Marriage Visa). Currently same-sex couples cannot obtain these immigration benefits in the same manner as their different-sex counter parts. This is true in spite of the fact that multiple sovereign American States currently solemnize, legalize, and/or recognize same sex marriage or marital unions. As can be gathered from previous postings on this blog, this state of affairs is questionably Constitutional and for that reason there are currently cases arising in the State of California and the Commonwealth of Massachusetts which would overturn at least portions of DOMA.

It is heartening to see more legislators joining the struggle for further equality in America. Readers and proponents of this legislation can, at this time, only hope that further action will be taken in Washington D.C. to see that the current valid grievances of the LGBT community are redressed.

For those interested in learning more about this legislation please check out the official website of Representative Mike Honda.

Tags: Commonwealth of Massachusetts, CR-1 Visa, Defense of Marriage Act, DOMA, foreign partner, K-1 Visa, lgbt immigration, lgbt visa, numerical caps on U.S. immigration, Rep. Mike Honda, Representative Jerrold Nadler, Representative Mike Honda, Reuniting Families Act, Same Sex Bi-National Couple, Same Sex Marriage, same sex partner immigration, same sex partner visa, State of California, uafa, Uniting American Families Act, US Fiance Visa, US Marriage Visa
Posted in same sex visa | No Comments »

It recently came to this blogger’s attention that the United States Navy, that indomitable symbol of America’s prowess on the high seas, has taken steps to begin solemnizing marital unions between those of the same gender. To quote directly from the Huffington Post:

WASHINGTON — Navy chaplains will be trained about their ability to perform same-sex civil marriage ceremonies under new guidance that would take effect if the Defense Department moves to recognize openly gay military service. Navy officials said Monday that they updated the training after questions came up about civil ceremonies for gay couples. Military training to apply the new law allowing gays to serve openly began earlier this year, and is expected to be complete by mid-summer.

For those who are unfamiliar with this topic it should be noted that the relatively recent repeal of the so-called “Don’t Ask, Don’t Tell” policy has resulted in the need for measures to integrate members of the LGBT community into the American armed forces. One component of such an integration is that same sex couples be permitted to marry, especially in State jurisdictions which explicitly allow such unions. However, this issue is not exactly “cut and dried,” to quote further from the aforementioned article:

The Navy ceremonies would be allowed at military facilities such as chapel and catering centers, but only in states that already recognize same-sex unions. And, even if a marriage is performed, same-sex partners would not get any health, housing or other benefits that are provided to married couples involving a man and woman.

The administration of this web log strongly encourages readers to click on the hyperlinks noted above to read this story in detail and learn more about these issues.

Clearly, there exists a States’ Rights component to the analysis of same sex marriage especially in light of the fact that 6 sovereign States and the District of Columbia have begun legalizing and solemnizing same sex marital unions within their respective jurisdictions. However, the final sentence of the above quotation should be concerning to same sex bi-national couples and the LGBT community as a whole. Although it is certainly positive that the American Navy is taking steps to begin solemnizing same sex unions while the overall legal stature of such unions is being determined, same sex couples are likely to continue to find themselves the victim of discrimination and double standards within the current American legal system.

Presently, there are cases in the judicial system which address these issues, but they have yet to take legal effect. Meanwhile, legislators such as Representative Jerrold Nadler have supported legislation such as the Respect for Marriage Act and the Uniting American Families Act (UAFA) which would deal with the American government’s current discrimination against the LGBT community. Until such time as federal legislation is passed to repeal the provisions of the so-called “Defense of Marriage Act” (DOMA), or judicial action is taken to overturn this legislation, it would appear likely that same sex couples will continue to be the object of discrimination notwithstanding the fact that such discrimination (regardless of whether it is being carried out under the “color of law”) violates Americans’ natural rights pursuant to ancient notions such as Magna Carta and the specific provisions protecting free association within the language of the U.S. Constitution. Meanwhile, there is a strong argument that the federal government’s current failure to recognize same sex marriages solemnized and/or legalized within the jurisdiction of a sovereign American State violates the 10th Amendment of the Constitution since the provisions thereof reserve certain rights to the American States and People, respectively.  Licensure of marriage in an intrastate context has long been viewed by many Constitutional scholars as an exclusively State prerogative.

For related information please see: LGBT Immigration.

Tags: American Constitution, American Navy, civil ceremonies for gay couples, DADT, Defense Department, Defense of Marriage Act, DOMA, Don't Ask Don't Tell, LGBT Equality, lgbt immigration, openly gay military service, Representative Jerrold Nadler, Respect for Marriage Act, Same Sex Bi-National Couple, same sex civil union, Same Sex Marriage, State prerogative, States' Rights, U.S. Constitution, uafa, United States Navy, Uniting American Families Act, US Navy
Posted in same sex visa | No Comments »

It recently came to this blogger’s attention, via the website MetroWeekly.com, that the Attorney General of the United States, Eric Holder, has vacated a decision of the Board of Immigration Appeals which applied controversial section 3 of the so-called “Defense of Marriage Act” (DOMA) in a recent case. To quote directly from a PDF copy of AG Holder’s order as posted to the aforementioned website:

Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.

In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

Those reading this posting are encouraged to read the article on Metroweekly.com posted by Chris Geidner regarding these issues as this blogger found that posting to be very insightful.

For those who are not familiar with this issue it should be noted that the current provisions of DOMA preclude accordance of federal benefits to those who have entered into a same sex relationship. This preclusion even overrides State prerogatives regarding marriage as, in an immigration context, the language of DOMA precludes recognition of even a same sex marriage solemnized and/or legalized in a sovereign American State. Currently, there is some legislation, such as the Uniting American Families Act (UAFA) or the Respect for Marriage Act, pending before the American Federal legislature which would seek to remove the current restrictions being imposed upon the LGBT community.

It remains to be seen whether same sex visa benefits will be accorded the same sex partners engaged in a bi-national relationship, but one thing is clear: there is momentum gathering behind the cause of LGBT equal rights as American authorities would seem to be taking notice of the legitimate grievances of those who have, for too long, been denied their rights to equal protection under the law. Meanwhile, this blogger finds it likely that there will eventually be some sort of decision regarding the accordance of Full Faith and Credit to those legal marriages solemnized and/or legalized by those States which currently license such unions. As of the time of this writing, however, such remedies remain to be seen and the assurances that they will manifest themselves sometime in the future is likely cold comfort to those who are separated from their loved ones now.

For related information please see: Full Faith and Credit Clause.

Tags: 1 U.S.C. § 7, 8 C.F.R. § 1003.1(h)(1)(i), AG Holder, Attorney General Eric Holder, BIA, Board of Immigration Appeals, Civil Union, Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, Immigration and Nationality Act, LGBT civil union, lgbt immigration, LGBT marriage, LGBT partner, lgbt visa, qualifying relative, removal, Respect for Marriage Act, Same Sex Marriage, same-sex partnership, Section 3 DOMA, uafa, Uniting American Families Act
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It recently came to this blogger’s attention that the recently announced Presidential candidate Representative Ron Paul noted his reaction to hearing the news of the demise of terrorist Osama bin Laden. To quote directly from an interesting article posted on the official website of The State Column, thestatecolumn.com:

Texas Rep. Ron Paul said Tuesday that he was delighted to hear of the death of Osama bin Laden.

The Texas Republican, and potential Republican presidential candidate, discussed the killing of bin Laden on The Diane Rehm Show, saying he is “still looking for more information” concerning the details of the killing.

Mr. Paul said he supported the killing of bin Laden, adding that he voted for the authority to go after those responsible for 9/11.

The administration of this blog recommends readers click upon the hyperlinks above to learn more from this insightful story.

On a somewhat related matter (related as both stories pertain to U.S. politics), but certainly of likely interest to readers of this blog, it would appear as though the Immigration Equality Action Fund has taken steps to build a coalition of businesses in favor of enactment of the Uniting American Families Act (UAFA). To quote directly from the official website of the Immigration Equality Action Fund, ImmigrationEqualityActionFund.org:

Immigration Equality Action Fund created the Business Coalition for the Uniting American Families Act to engage global companies who are fed up with the loss of talented LGBT employees due to immigration restrictions. The Coalition is a group of global businesses calling on Congress to pass the Uniting American Families Act, S. 424/H.R. 1024.

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to read about this information in detail. Furthermore, readers are encouraged to take note of those companies which have shown their support for the rights of the American LGBT community.

For those unfamiliar with this issue, the Uniting American Families Act (UAFA), recently reintroduced in the U.S. House of Representatives by Representative Jerrold Nadler, would provide immigration benefits for the “permanent partners” of United States Citizens and/or Lawful Permanent Residents thereby circumventing the current (questionably Constitutional) legal restrictions barring the granting of federal benefits to those who are in a same sex marriage or intending to enter into a same sex marriage upon lawful admission to the United States of America. Such discrimination currently exists pursuant to the provisions of the so-called “Defense of Marriage Act” (DOMA). The reader is encouraged to note that these current restrictions exist notwithstanding the fact that a number of sovereign American States have voiced their support for same sex marital unions. Most notable for those interested in the legal ramifications of this issue: the Commonwealth of Massachusetts and the State of California have seen cases pertaining to these issues, but as of yet, the issue remains in a sort of stasis as the wheels of justice slowly turn.

As the 2012 election approaches it is noteworthy how varied the issues are likely to be even as they comprise the spectrum of presidential debate topics.

For related information please see: Respect for Marriage Act or Full Faith and Credit Clause.

Tags: American LGBT community, Campaign 2012, Commonwealth of Massachusetts, Defense of Marriage Act, DOMA, Election 2012, Representative Jerrold Nadler, Representative Ron Paul, Respect for Marriage Act, Ron Paul, Same Sex Bi-National Couple, Same Sex Marriage, State of California, uafa, UAFA Coalition, Uniting American Families Act
Posted in Election 2012, lgbt immigration, News, same sex visa | No Comments »

As the issue of equal rights for the LGBT community continues to evolve the political facets as well as the legal aspects of this issue continue to develop in real time. It recently came to this blogger’s attention that some groups are questioning the decision by the California Judge in the Proposition 8 case to act as adjudicator in that case which found that depriving same sex couples the right to marry in the same manner as their different-sex counterparts is a violation of same sex couples’ civil rights. In order to shed more light upon this issue it may be best to quote directly from an article recently posted on the official website of the Associated Press written by Lisa Leff:

At the center of the dispute is Chief U.S. District Judge Vaughn Walker, who issued the ruling last August declaring Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights.

“We are not suggesting that a gay or lesbian judge could not sit on this case,” attorneys for the backers of Proposition 8 wrote in their motion filed Monday to overturn the landmark ruling. “Simply stated, under governing California law, Chief Judge Walker currently cannot marry his partner, but his decision in this case … would give him a right to do so.”

They claim Walker should have disclosed the relationship while presiding over the case and said if he had any interest in marrying his partner.

The administration of this blog strongly recommends that readers click upon the hyperlinks above to read further from this insightful article.

In the article cited above it was noted that some have argued that the Judge in this case should have recused rather than adjudicating the case. However, not everyone agrees that recusal was called for. Meanwhile, the issue of recusal simultaneously raises the issue of whether one’s sexual orientation is relevant to fulfilling public functions such as acting as an adjudicator. To quote further from the article noted above:

Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail.

They pointed out that while courts have not yet had to wrestle with sexual orientation as grounds for judicial recusal, judges typically have rejected efforts to remove jurists based on personal characteristics such as race, gender, religion or even the contents of their investment portfolios.

“I don’t think this judge had any more duty to disclose his sexual orientation than a Christian or Jewish or Muslim judge has a duty to discuss their religion or a heterosexual judge has his duty to discuss their sexual orientation,” retired Illinois state Judge Raymond McKoski said.

The issue of sexual orientation and legal scrutiny thereof is one which will likely need to be adjudicated by the United States Supreme Court. Recently, the Obama administration clarified its position on this issue through the promulgation of the recent memorandum between Attorney General Eric Holder and the Speaker of the House of Representatives. The administration seems to believe that the issue should be accorded “heightened scrutiny” by the United States Supreme Court. To be clear, this blogger believes that same sex couples’ rights are inalienable natural rights (reserved to the American People pursuant to the 10th Amendment) which cannot be infringed upon by mere governments. That stated, under the current system in the United States, the best method for gaining equal protection under the law for the LGBT community in a practical sense would be through legislative and/or judicial action. However, this blogger truly believes that the best argument in favor of recognition of same sex marriage stems from States’ Rights since multiple sovereign States have either allowed for legal recognition of such unions or actively legalize and/or solemnize same sex marriages. Another argument in favor of full recognition of same sex marriage stems from an Equal Protection analysis. As implied by the Holder memo, some believe that heightened scrutiny should be applied to these cases. This blogger does not disagree with that argument per se, as it does seem as though so-called “heightened scrutiny” or “intermediate scrutiny” might be more appropriate under the circumstances than, say, strict scrutiny. In any case, whatever level of scrutiny is utilized it is this blogger’s opinion that Federal lack of recognition of same sex marriage as well as the current ban in California pursuant to Proposition 8 are both in violation of the Constitution based upon either an analysis of the Full Faith and Credit Clause or the Equal Protection Clause.

In this blogger’s personal opinion, the Judge noted above should not have had to recuse under the circumstances for many of the reasons noted above. That said, this blogger remains convinced that the currently pending appeal of a similar decision in Massachusetts Federal Court is more likely to result in gains for the LGBT community as that case rests upon more sound Constitutional footing (namely, States Rights: the reader is asked to bear in mind that the Framers of the U.S. Constitution believed that the most sovereign power under the U.S. Constitution resides with the American States). Whatever the outcome in either case, the struggle for equal protection of the LGBT community under the law of the United States must continue until the current grievances are redressed.

On the legislative front, it was recently announced that Representative Jerrold Nadler as well as other Federal legislators are currently supporting legislation such as the Respect for Marriage Act and the Uniting American Families Act (UAFA) which would overcome the current legal hurdles placed in the way of LGBT couples by the provisions of the so-called “Defense of Marriage Act” (DOMA). At the time of this writing it remains to be seen whether these bills will be enacted.

For related information please see: US Visa For Same Sex Bi-National Couples.

Tags: Chief U.S. District Judge Vaughn Walker, Defense of Marriage Act, DOMA, Full Faith and Credit Clause, heightened scrutiny, intermediate scrutiny, Judge Raymond McKoski, LGBT Equal Rights, Proposition 8, recusal, recuse, Respect for Marriage Act, Same Sex Marriage Same Sex Visa, uafa, Uniting American Families Act
Posted in same sex visa | No Comments »

Much to her credit Secretary of State Hillary Clinton once declared:

“Gay rights are human rights.”

Although this blogger may not have personally agreed with every one of the opinions espoused by Mrs. Clinton over the years, he can at least state that she has been a zealous and effective advocate, where possible, for the rights of the LGBT community. However, this blogger might add that the statement quoted above could be construed as incomplete.  In order to elucidate why this statement may be incomplete this blogger would need to quote directly from a recent posting on the website Lez Get Real:

Sen. Al Franken is the newest co-sponsor of legislation introduced in the U.S. Senate late last week that would give binational same-sex couples the same rights as married couples for immigration purposes. The Uniting American Families Act is authored by Democrat Patrick Leahy of Vermont and is sponsored by 18 other Democrats. Even though same-sex marriage is legal in seven jurisdictions in the United States, couples in which one partner is not a citizen do not have any right under current federal law.

Frequent readers of this blog may recall that Representative Jerrold Nadler recently introduced similar legislation in the United States House of Representatives. To continue by quoting an interesting question raised in the previously cited posting on Lez Get Real:

DOMA’s repeal will enable gays and lesbians – same-sex spouses – to sponsor foreign spouses for green cards so why do we need both bills before an unfriendly house at the same time?

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to read the full story on the website cited above in order to gain further insight and perspective into this posting.

The question above raises a great many issues that are both complex and, at times, controversial; but go to the heart of the current struggle to secure equal rights for all Americans under the law of the United States of America.  Getting back to Mrs. Clinton’s remark: it is perhaps incomplete because it fails to take into consideration the rights of the Several States. The United States Constitution is composed of 50 co-equal sovereign States as well as a Federal government which has enumerated powers to perform certain functions while reserving the residual inalienable rights to the States and the People respectively. One of the rights which the States have always reserved unto themselves is the right to legalize and/or solemnize a marriage within their jurisdiction. Notwithstanding this fact, the United States Federal government decided to pass legislation referred to colloquially as The “Defense of Marriage Act” (DOMA). By doing so, they rode roughshod over the rights of the States to make decisions regarding the intra-State definition of marriage and how State sanctioned marriages between two people of the same sex would be treated by other States (including the Federal government which is a separate sovereign from the 50 States), but at that time this was not readily apparent due to the fact that States had yet to change the law regarding what constitutes a marriage.

To shed more light upon these issues it may be best to quote directly from an extremely insightful article on the subject of Full Faith and Credit by Justice Robert H. Jackson and posted on the website, RobertHJackson.org:

By other articles of the Constitution our forefathers created a political union among otherwise independent and sovereign states. By other provisions, too, they sought to integrate the economic life of the country. By the full faith and credit clause they sought to federalize the separate and independent state legal systems by the overriding principle of reciprocal recognition of public acts, records, and judicial proceedings. It was placed foremost among those measures(n69) which would guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence, but without aggrandizement of federal power at the expense of the states.

To quote the Full Faith and Credit Clause directly:

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.

Some have discussed the issue of Full Faith and Credit at length with this blogger and cite the quotation above noting that Congress does have the power to prescribe laws regarding the “Effect” of State legislation. This blogger would concur with such an assessment, but the current provisions of the Defense of Marriage Act (DOMA) do not merely regulate the Effect of duly solemnized and legalized same sex marriage in the States which allow such unions, but instead DOMA makes such legislation wholly INEFFECTIVE because that law simply refuses to recognize the validity of same sex unions. In this blogger’s opinion this is clearly violative of the U.S. Constitution as true Full Faith and Credit has not been accorded to same sex marriages legalized within those sovereign States.

In Justice Jackson’s concurring opinion in the case of Youngstown Steel & Tube Co. v. Sawyer the following framework was created for analyzing executive action:

In determining whether the executive has authority, there are three general circumstances:

1. When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.
2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest.

This blogger asks that readers click on the hyperlinks above to understand this case further.

To continue analyzing this issue: it is this blogger’s opinion that States’ Rights issues in connection with Full Faith and Credit could be analyzed in a similar manner to the first prong of the analysis used by Justice Jackson to adjudicate Presidential authority. When the Sovereign States act pursuant to an express or implied authorization of their legislatures or pursuant to the will of the People (ex. a State referendum), then shouldn’t the greatest amount of Full Faith and Credit be accorded to the laws created therefrom? Why does the Federal government get to override sovereign prerogatives clearly reserved to the States and the People, respectively? Clearly, from the plain language of the Full Faith and Credit Clause Congress can make rules regarding the regulation of the Effect of such legislation on other States which do not have similar prerogatives, but, in this blogger’s opinion, the Federal government simply cannot unilaterally overrule, either preemptively or after the fact, State prerogatives simply by citing their power to regulate the Effect of such prerogatives.

To get back to the issue of the Uniting American Families Act (UAFA) vs. repeal of DOMA (either outright or through a statute similar to the Respect for Marriage Act). In this blogger’s opinion the reason that both of these bills are on the floor stems from the inherent tensions which arise as a result of the fact that the USA uses a federal system within her Constitution providing concurrent jurisdiction for 1 Federal government as well as 50 State sovereigns. Institutions within government, especially the US Federal government, are often loathe to give up power. By recognizing that refutation of marriages solemnized and legalized within sovereign State jurisdiction is outside of their bailiwick the Federal government could be construed to have conceded to a practical loss of authority on such issues (which this blogger believes that they do not have to begin with).

Concurrently, there are sound political reasons for having both bills out there on the floor of the Federal legislature. One, it provides a better chance of seeing at least some progress on this issue. If a DOMA repeal is not possible within this session, but passage of UAFA can occur, why not take it? At the very least passage of UAFA could lead to reunification of same sex bi-national couples who are geographically separated due to the provisions of DOMA. Therefore, this blogger would argue that such a strategy is sound, but those within the LGBT should not lose sight of the ultimate goal: full equality under the law. IF UAFA can be secured along the way, all the better, but mere passage of that legislation should not be viewed as the end of the struggle.

To sum up, the issues associated with accordance of Full Faith and Credit to same sex marriages solemnized and legalized by a sovereign State with appropriate jurisdiction are myriad and few, if any, have been resolved, but they continue to be some of the most interesting issues to be currently debated in the realm of U.S. Constitutional law. In conclusion, although it is not debatable in this blogger’s mind that Gay Rights are Human Rights. Perhaps Gay Rights are States’ Rights as well?

For related information please see: Same Sex Visa.

Tags: Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, Gay Rights, Gay Rights News, Justice Robert H. Jackson, Representative Jerrold Nadler, Respect for Marriage Act, RFMA, Senator Al Franken, Senator Patrick Leahy, uafa, Uniting American Families Act
Posted in same sex visa, States' Rights | No Comments »

It recently came to this blogger’s attention that the official blog of the American White House posted an article regarding Immigration reform. For those who are not familiar with the current debate in the United States regarding immigration there are many factors which touch upon this controversial issue that continues to vex lawmakers and law enforcement officers in virtually all areas associated with visas and immigration. To quote directly from Melody Barnes on the official White House Blog:

As we work toward immigration reform, the Administration will continue to look for ways to improve our legal immigration system, secure the borders, and enhance our enforcement strategy so that it is smarter and more effective at removing criminals and prosecuting unscrupulous employers. But enforcement alone will not solve our immigration problem.  We need reform that affirms our history as both a nation of laws and a nation of immigrants – and to do that, we need to work together to pass legislation.

Immigration reform has always been a bipartisan issue, and the President believes it can and should be again.  Democrats, Republicans and Independents working together can enact meaningful, lasting reforms and make the right choices for our future.

It should be noted that Melody Barnes is an Assistant to the President and Director of the Domestic Policy Council. The administration of this blog strongly encourages readers to click upon the hyperlinks noted above to read this blog posting in detail in order to gain some perspective and context on this important issue.

This blogger sincerely hopes that any type of Comprehensive Immigration Reform, would take into consideration those same sex bi-national couples who are currently unable to receive immigration benefits of the same quality as their different sex counterparts pursuant to current policies stemming from the enactment of the so-called “Defense of Marriage Act” (DOMA). It was recently reported that Representative Jerrold Nadler has reintroduced legislation colloquially referred to as the Uniting American Families Act (UAFA). This legislation would allow the foreign same sex partner of a United States Citizen or Lawful Permanent Resident to receive immigration benefits as a “permanent partner”. As a result, the current restriction on same sex visas could be legally circumvented. Meanwhile, legislation such as the “Respect for Marriage Act” would grant Federal recognition to same sex marriages legalized and solemnized within the jurisdiction of those sovereign States which currently license such unions or in those foreign nations which legalize same sex marriage.

How the overall issue of Comprehensive Immigration Reform and equal rights for the LGBT community will ultimately play out has yet to be discerned, but hopefully through prudent leadership this issue can be dealt with to the benefit of all concerned.

For related information please see: Legal.

Tags: Comprehensive Immigration Reform, Defense of Marriage Act, DOMA, Legal, Representative Jerrold Nadler, Same Sex Marriage, uafa, Uniting American Families Act, White House, White House Blog
Posted in US Visa and Immigration | No Comments »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags: Congressman Jerrold Nadler, Congresswoman Zoe Lofgren, Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, lgbt immigration, lgbt visa, Representative Jackie Speier, Representative Jared Polis, Representative John Conyers, Representative Luis Gutierrez, Representative Mike Honda, Representative Tammy Baldwin, Respect for Marriage Act, RFMA, Same Sex Marriage, same sex visa, uafa, United States Citizenship and Immigration Service, Uniting American Families Act, US Department of Homeland Security, USCIS
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It would appear as though government shutdown has been averted, at least for the time being as an apparent bi-partisan initiative has resulted in continued funding for the United States government. To quote directly from ABC News on go.com:

Barely more than an hour before a midnight deadline Friday night, officials announced a deal to avert a government shutdown. “We will cut $78.5 billion below the president’s 2011 budget proposal, and we have reached an agreement on the policy riders,” House Speaker John Boehner, R-Ohio, and Senate Majority Leader Harry Reid, D-Nev., wrote in a joint statement.

The agreement would cut $37.67 billion from the 2010 budget and keep intact funding to Planned Parenthood, sources from both parties told ABC News.

“We protected the investments we need to win the future,” President Obama said after the deal was struck. “At the same time, we also made sure at the end of the day this was a debate about spending cuts — not social issues like women’s health and the protection of our air and water. These are important issues that deserve discussion, just not during a debate about our budget.”

Readers of this blog are highly encouraged to visit the above links to gain more insight on this story.

On a related note, credit where credit is due regarding the preparations seemingly undertaken by the officers of the Department of State in trying to front load their efforts as much as humanly possible regarding previously-approved visa issuances as the prospect of Government Shutdown became more acute.

On a less related note, those interested in the struggle for equality for the LGBT community in the context of the United States immigration process should take note of the fact that the United States Citizenship and Immigration Service (USCIS) attempted to put a hold on deportations involving same sex bi-national couples before having that hold rescinded by the Department of Homeland Security (DHS). USCIS, your efforts to help keep bi-national families together has not gone unnoticed.

It would seem as though the ultimate resolution on this issue will come either in the form of a legal opinion from the United States Supreme Court, as in a case such as that from the Massachusetts Federal Court and others in the US Courts currently working their way through the appellate process, or through enactment of legislation which would repeal, hopefully at the very least, the Federal recognition provisions currently embodied in the language of the so-called “Defense of Marriage Act” (DOMA) similar to the legislation colloquially referred to as the Respect for Marriage Act and/or the Uniting American Families Act.

Tags: American government shutdown, Defense of Marriage Act, Department of Homeland Security, Department of State, House Speaker John Boehner, LGBT community, LGBT Equal Immigration, President Obama, Senate Majority Leader Harry Reid, United States Citizenship and Immigration Service, Uniting American Families Act, US government shutdown, USCIS
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