Tuesday, March 1, 2011

Why The Executive Branch Was Correct in Rejecting An Unconstitutional Act by Geoffrey A. Hoffman, University of Houston Law Center

Last week the executive branch signaled that it would not defend the constitutionality of DOMA - an unconstitutional statute purporting to define what constitutes a valid marriage at the federal level. The case where the issue came up was in the Second Circuit, but the executive’s position is applicable nationwide. In a letter by the Attorney General to Congress, the administration’s position was made clear: “Section 3 of the Defense of Marriage Act (‘DOMA’). . .as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”

As an immigration attorney, DOMA has always troubled me. In Loving v Virginia, the Supreme Court overturned Virginia’s anti-miscegenation law, forbidding both blacks and whites from marrying persons of another race. In that case, the Supreme Court held in a 9-0 decision that the racist statute violated both equal protection and due process. Importantly, the decision was based on the finding that marriage is a fundamental right entitled to the strictest scrutiny. Although racial discrimination is not the same as sexual orientation discrimination, the Administration correctly concluded that some form of heightened scrutiny should be applied to Congress’s prohibition of same-sex marriages in DOMA.

Although the standard of scrutiny for discrimination based on sexual orientation has yet to be decided by the Supreme Court, the issue is informed by cases such as Lawrence v. Texas, where the high court rejected as unconstitutional a Texas statute criminalizing homosexual activity. In Lawrence the court held that a person’s intimate consensual sexual conduct was a protected liberty interest under the Fourteenth Amendment’s due process clause. In Romer v. Evans, the court had also rejected a Colorado statute which would have prevented any municipality in that state from recognizing gay and lesbian citizens as a protected class. Justice Kennedy in that case recognized that the state statute imposed a “special disability” upon gay people, because homosexuals were “forbidden the safeguards” that other people “enjoy or may seek without constraint.” This language could be applied equally well to DOMA.

Under the immigration laws and general principles of comity, immigration authorities are required to respect and apply the law where the marriage took place. That law normally applies to determine the validity of the marriage. In the immigration context that might mean applying the law in Massachusetts, if for example the U.S. citizen petitioner and foreign national beneficiary were married there, or in some other state where same-sex marriage has been legalized. Petitioners and beneficiaries who are in legitimate same-sex marriage sanctioned by the state or country in which the marriage arose should be entitled to be recognized by the immigration authorities.

The issue will arise whether the plenary power doctrine could trump equal protection and due process to somehow allow for the federal government to discriminate based on sexual orientation in the special context of immigration. A close reading of the precedents does not support this view. If one looks at cases like Mezei and others there is no question that plenary power exists over whom to admit, but the issue which arises concerning the adjudication of I-130s and DOMA is not one of admission or exclusion. The issue instead is whether the government is required to recognize lawful marriages in the state or country where they took place. To apply the plenary power doctrine in this context would impermissibly conflate the I-130 process (proof of lawful marriage) and the I-485 application (admissibility of beneficiary). They are two different processes with separate and distinct requirements.

The ultimate ruling on the constitutionality of DOMA will still have to be decided by the judiciary. When the Supreme Court makes this pronouncement, it should find that the law was so insidious because it purported to take away from citizens the fundamental right to decide whom to marry. It was insidious also because it meant the federal government, for example in the context of immigration, could trump a state’s definition of a valid marriage and impose in its stead a federally-mandated one. This nation was founded on religious tolerance, freedom, and a devotion to respecting the rights of individual citizens. DOMA could not legitimately be a part of this great tradition.

Geoffrey A. Hoffman, Director University of Houston Immigration Clinic Clinical Associate Professor, University of Houston Law Center


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