Federal marriage law may force deportation of many immigrant gay spouses
By Pamela Constable,
Kelly Costello and Fabiola Morales had a storybook wedding in the summer of 2011, with 12 bridesmaids and matching white gowns. Their fathers gave them away at a Unitarian ceremony in the District, and both extended families were on hand for dancing and champagne afterwards.
But because of a law that denies federal rights and benefits to gay spouses, the Potomac couple could soon be forced to live 4,000 miles apart. Morales, a registered nurse with two U.S. academic degrees, is a native of Peru. If she were a man, Costello could automatically sponsor her for a green card. But because they are both women, Morales could become deportable as soon as her student visa expires next year.
“We love each other. We want to share our lives and raise a family and be happy like everyone else,” said Morales, 39, who came to the United States six years ago and has since been hopping between work and student visas. “Our families are very supportive. We are good people and we have worked hard to make a contribution. We deserve equality.”
Morales and Costello, 30, an elementary school teacher of English as a second language, are among a growing number of binational gay couples who are caught between state laws that allow them to marry and federal laws that bar the U.S. citizen spouse from sponsoring the immigrant spouse for legal residency. Advocates estimate that more than 36,000 such couples are in the same situation.
The 1996 Defense of Marriage Act, known as DOMA, defines marriage as the legal union between and man and a woman. It denies gay spouses a long list of federal benefits, including access to pension and inheritance funds after their partner dies, as well as blocking their right to immigrate through marriage.
However, 10 states and the District have moved to legalize gay marriage since DOMA was passed. As the concept of same-sex legal unions has gained more public acceptance, a legal and political movement against DOMA has grown. Lawyers for the Obama administration have found that portions of the law are unconstitutional, and federal courts in eight cases around the country have agreed.
Two weeks ago, the Supreme Court announced it would hear arguments on the law’s constitutionality this spring, based on a challenge by the American Civil Liberties Union in which Edie Windsor, a widow whose same-sex spouse died, was forced to pay $363,000 in federal estate taxes that a husband would not have had to pay.
If the high court rules in favor of Windsor, it will wipe out the same section of DOMA that denies immigration rights to gay foreign spouses. In the meantime, a coalition of national rights groups and some lawmakers have asked the Obama administration to defer all pending green card petitions for gay spouses until the Supreme Court rules.
“This law hurts same-sex couples in many ways, and immigration is one of the cruelest,” said Ian Thompson, a legal adviser at the ACLU in Washington. He noted that when DOMA became law, it was mostly symbolic, because no states allowed same-sex marriage. “Today, you have thousands of couples whose legal marriages are not recognized by the federal government,” he said. “Now the harms are tangible.”
Maryland residents voted to legalize gay marriage in a referendum last month, and Rep. Chris Van Hollen (D-Md.), a supporter of the measure, met with Costello and Morales recently. Last week, he sent an open letter to Homeland Security Secretary Janet Napolitano asking that the couple’s green card application be set aside pending the high court’s decision.
Van Hollen described the two women as a hard-working couple who have “contributed greatly to our community.” Forcing Morales to leave the United States, he wrote, would bring special hardship, in part because Costello is expecting twins and in part because Morales suffers from multiple sclerosis and is receiving experimental treatment at Georgetown University. “The emotional trauma they would face is both extreme and obvious,” he said.
Somewhat surprisingly, conservative leaders of Maryland’s movement against illegal immigrants have not criticized the effort to extend green-card rights to gay spouses. Brad Botwin, who heads Help Save Maryland, a group that strongly opposed Dream Act legislation for undocumented immigrants, said his group was content to wait and see what the Supreme Court decides on DOMA.
“Every situation has opportunities for abuse, but this is not really an immigration issue,” said Botwin. He noted that his daughter is engaged to a man from England and will probably apply for a green card for him. “The question is, which should have more legal standing, that a person got married or that the person is an immigrant? We need to let the legal process play out.”
On a national level, more than 50 organizations — including gay rights groups and Hispanic and Asian-American advocates — appealed this month to President Obama to allow all pending immigration petitions for gay spouses be “held in abeyance” until the high court rules.
Immigration Equality, one of the groups, filed the green card petition for Morales and Costello and also filed suit on behalf of several other gay binational couples, arguing that DOMA violated their rights to equal protection under U.S. laws.
“Pablo and I have been together for more than 20 years. We never wanted to break the law or create any problems. We just want what’s fair,” said Santiago Cortez, 57, a retired school psychologist in the New York borough of Queens whose partner Pablo Garcia, 52, is a native of Venezuela. The couple married last year in Connecticut. “We fulfill every requirement for his green card but one,” Cortez said. “We are both men.”
Despite its own stated concerns about DOMA, the Obama administration appears unlikely to grant the requests for a blanket “abeyance” on green-card applications. Although U.S. officials have leeway to suspend individual deportations on humanitarian grounds, they say they are required to enforce DOMA and do not possess the same legal flexibility to tinker with federal benefits such as green cards.
In a statement Thursday, the Department of Homeland Security reiterated that “the Defense of Marriage Act remains in effect” and that the department “will continue to enforce it unless and until Congress repeals it, or there is a final determination that it is unconstitutional.”
For Costello and Morales, who met through friends in 2007, life has been good in many ways. Their immediate families have embraced their relationship and rallied to their cause. Both women have built solid careers, and Morales, who earned bachelor’s and master’s degrees in nursing from Georgetown University, has been able to parlay her studies and skills into a string of work and student visas.
The two live a quiet life in the affluent Maryland suburbs, staying with Costello’s parents to save money. Morales’s Peruvian relatives, who live in Miami, often visit for Christmas and other holidays. The women love to show visitors their wedding album and the sonogram with the twins Kelly is carrying, due in July. But now, their excitement is tinged with tension and worry for the future.
“We were made for each other,” Morales said, taking Costello’s hand nervously as they sat on a sofa in the family’s spacious Potomac home. “She is my best friend, my motivation in life. Our future as a family is here, together. Why should I have to choose between her and another country?”