Thursday, June 30, 2011

Evolve Already! Victory Over DOMA in Immigration, Not In Bankruptcy Court

This morning I'm introducing a new segment called Evolve Already!, where I'll be taking a look at President Obama's long, slow evolution on Marriage Equality and the often contradictory and hypocritical application of the Defense of Marriage Act (DOMA), the 1993 law banning federal recognition of same-sex marriage. The President and Attorney General Eric Holder have said the administration will no longer defend DOMA in court, due to their shared opinion that section 3 of the law is unconstitutional.

As it turns out, the administration will only walk the walk when it suits them.

First up is the immigration case of Venezuelan-born Henry Velandia, 27, who legally married his husband, Josh Vandiver, 30, in Connecticut in 2010. Velandia has been fighting his deportation for most of the last year, because under DOMA, he has not been able to obtain legal residency status. After A.G. Holder announced the administration's new position on DOMA, Velandia's case was put on hold by the court, while the administration sorted out how their new position would apply in immigration cases.

The New York Times reported overnight that the court has decided to drop the case against Velandia.
The announcement comes as immigration officials put into effect new, more flexible guidelines governing the deferral and cancellation of deportations, particularly for immigrants with no serious criminal records.
Immigration lawyers and gay rights advocates said the decision represented a significant shift in policy and could open the door to the cancellation of deportations for other immigrants in same-sex marriages.
“This action shows that the government has not only the power but the inclination to do the right thing when it comes to protecting certain vulnerable populations from deportation,” said the couple’s lawyer, Lavi Soloway.
The court's decision could have a ripple effect nationwide as other bi-national gay and lesbian couples and their families fight to stay together in the U.S.

Now for the two steps back.

At a time when every American family is fighting to survive during the worst economic recession since the Great Depression, the Obama administration has filed an appeal in the California bankruptcy case of Gene Balas and Carlos Morales, a legally married gay couple, who were initially told by the U.S. Bankruptcy Court that they could not file jointly for Chapter 13 Bankruptcy protection because of DOMA.

The couple appealed the decision. On June 15 Judge Thomas Donovan issued a ruling in the case, where he agreed with the administration that section 3 of DOMA was unconstitutional and that Balas and Morales could proceed with their joint filing.

On Wednesday, the U.S. government's appointed trustee in the case filed an appeal, as the president sidestepped direct questions about his evolution on marriage equality during a press conference. The appeal reads, in part:
Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the  President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.
This appeal makes no sense at all. Obama and Holder say they believe DOMA is, at least in part, unconstitutional and a federal judge agrees with them and rules accordingly. Instead of allowing this financially struggling couple to file jointly, the feds decide to waste taxpayer dollars to fight a decision that they essentially agree with.

Given that the Prop 8 challenge may not make it to the U.S. Supreme Court due to the lack of legal standing of the anti-gay side to appeal, this may actually be the case that defeats DOMA once and for all.


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