Supreme Court DOMA Ruling Gets Married Gay Couples Visas, Highlights Civil Union Inadequacies

On Wednesday, June 26, 2013, an 84 year-old widow from New York received the news that she waited almost four years to hear.  Not only did Edith Windsor win her court case against the Internal Revenue Service, but also the U.S. federal government will treat same-sex married couples equal to their opposite-sex counterparts.

The U.S. Supreme Court handed down their opinion in the United States v. Windsor case stating that Article 3 of the 1996 Defense of Marriage Act (DOMA) is unconstitutional by depriving same-sex marriage couples the same federal rights and benefits as their opposite-sex married equivalents, a violation of the Fifth Amendment of the U. S. Constitution. Windsor bought the case shortly after her wife Thea Spyer died February 5, 2009. That is when the IRS told Windsor that she owed $363,000 in gift and estate taxes because DOMA prevented the federal government from treating them like an opposite-sex spouse that would be exempt from taxation.

The ruling would not officially take effect for twenty-five days, the typical SCOTUS re-hearing appeal period. President Obama instructed federal agencies on the same day to figure out how it applies to different scenarios, including married same-sex couples living in states that do not recognize their marriages. However, not all federal employees were waiting for that review.

The New York Times reports that less than an hour after the DOMA decision was released, a Manhattan immigration judge was ready to start Columbian immigrant Steven Infante hearing. This was possibly the last hearing before deporting him from the home he shares with American spouse Sean Brooks. Instead, after reviewing the morning’s opinion, the judge allowed Infante to stay in the United States as a legal permanent resident.  Two days later on June 28, Bulgarian immigrant Traian Popov was notified by email of receiving their historic first same-sex spousal permanent visa approval , or more commonly known as a green card. Popov married his spouse Julian Marsh in New York in 2012 and live in Florida, one of 29 states that have a state constitutional amendment banning same-sex marriage.

It would not be until August 2 that Secretary of State John Kerry announced the official change in policy that all married binational couples, regardless of being gay or straight, will be treated the same in the visa process. The updated policy applies to both United States citizens and non-citizens, as long as they were married in a jurisdiction where same-sex marriage is legal.

Immigration Equality was on the forefront of helping binational same-sex couples try to obtain visa for their foreign partners before there was even a DOMA back in 1994. Originally an all-volunteer organization of immigration lawyers and supporters going by the name Lesbian and Gay Immigration Rights Task Force, they changed to their current name in 2004 to reflect the wider community they serve.

U.S. Supreme Court DOMA Ruling’s Impact on Bination Same-Sex Couple Immigration from Tom Arana-Wolfe on Vimeo.

“I really do think that the real immediate change on the opportunities of these families to avail themselves of their rights under U.S. Immigration Law,” explains Immigration Equality staff attorney Tom Plummer. “U.S. Immigration Law is based the idea on uniting families, but because of the discrimination at the heart of the Defense of Marriage Act, gay and lesbian families were excluded from those opportunities. And, so, as a result, families were torn apart, families were forced into exile, foreign national partners her in the United States were forced to go into the shadows living in the United States without documentation. As of Wednesday, that changed. Families in exile can start planning return to the United Stated. Families that were torn apart can reunite, and families living here in the United States can begin planning their life going forward.”

For Jonny Mack and his Venezuelan-born spouse J.J. Mack, the updated visa policy is a blessing. The New York-based graphic designer and popular DJ took on the responsibility of supporting their New Jersey household when J.J.’s lost his work visa due to changes in his company. As previously reported, while J.J. remained in the United States out of immigration status, he could not apply for another well-paying job as a systems engineer without a visa.

The Macks Sit Down to Discuss Same-Sex Immigration and DOMA from Tom Arana-Wolfe on Vimeo.

“There is tremendous relief involved,” says Jonny. “It doesn’t matter that you are actually living in one of those states (with same-sex marriage) as long as you got married in one of those states, which just secures the fact the federal government means business. That is reassuring and heartening because there are a lot of people in a lot of places, places that I would never live by the way, I’m like, ‘yo, get out of there.’ But those people who will now at least have the federal government basically reassuring them that their marriages are real even if the state won’t recognize them.”

New York City public high school schoolteacher Matt Tratner-Katz met his future spouse Uri while accompanying a close friend’s pilgrimage to bring his spousal’s ashes back to his homeland of Israel in 2010. Matt contacted Uri through mutual friends on Facebook to have a local introduce them to a non-tourist view of the country. Matt and Uri both agree that while it was not love at first sight, by the end of the couple week trip they both knew that they were starting a long-distance relationship.

They spent the next six months of dating via FaceTime video chat. Due to the time difference, many of their moments together were while Matt was on break during the school day, how Uri was first introduced to many of Matt’s students that would later refer to him as the second Mr. Tratner. Matt and Uri decide that they needed to see if they were ready for the next step in their relationship.

“We needed to check to see if it was a vacationship or the real thing,” recalls Uri. “The second that I got there, we already knew that I wanted to stay with him. In a way, it was a waste of time of three weeks because I could have already been back home packing my stuff.”

They decided to move in together at Matt’s apartment in New York City despite a long conversation about the immigration obstacles DOMA placed before them. Uri left his job as a successful Israeli radio morning show producer to become a full-time college student on a student visa forcing Matt to shoulder the responsibility for their household.

Matt and Uri Tratner-Katz Discuss Life, Love and Immigration Pre and Post DOMA from Tom Arana-Wolfe on Vimeo.

“They couldn’t figure out what I was crying about,” Matt describing his fellow public school staff reaction to the emotion moment they were witnessing. “Most of them didn’t understand. It was like a silent segregation that I explain to people that for so many times I had to defend myself to the government. When we were even getting his visas changed, I had to defend things that no other American would have to defend or explain and I was treated badly. So, it was this amazing moment where I was like I felt like I was all of the sudden was equal, this moment of equality that we waited for so long. It’s a question of choices, we just wanted the same choices and the same liberties.”

Astonishing X-Men #51 cover

Marvel Comic’s French-Canadian and X-Man Jean-Paul “Northstar” Beaubier marries his American same-sex spouse Kyle Jinadu in the June 2012 Astonishing X-Men #51
Photo credit: Marvel Comics

DOMA even affected those in pop culture charged with saving the world. First introduced back in 1979 in Uncanny X-Men #120, French-Canadian Jean-Paul “Northstar” Beaubier was part of Canada’s answer to The Avengers, Alpha Flight. Their first mission was to unsuccessfully return fellow Canadian Wolverine from his new American family, the X-Men.

Comic book writer and artist legend John Byrne created Alpha Flight and co-created Northstar and his twin sister Aurora with fellow Uncanny X-men Legend Chris Claremont. During Byrne’s run on Alpha Flight’s own title, he peppered his run with hints of Northstar’s sexual orientation not being so straight. Yet, it wasn’t until 1992 when the budding comic book writer Scott Lobdell had Northstar involved a discourse on the social responsibility of a famous individual to come out of the closet for the betterment of the LGBT community and AIDS education versus a person’s right to privacy between super-speed punch throwing. By the end of the issue, Northstar official comes out on the front page of The Daily Mail newspaper.

Northstar played the field for the next twenty year until he married American Kyle Jinadu on June 20, 2012 in Astonishing X-Men 51. Someone at Jean Grey School for Higher Learning must have forgot to invite a local politician because in November 2012, the Immigration and Naturalization Services came knocking on the Jinadu-Beaubier’s door. Astonishing readers were last left in February 2013 with the best attorney in all Marvelhood, Jennifer “She-Hulk” Walters, explaining to Jean-Paul that just because he can fly over the United States border or saved the world numerous times doesn’t mean he is above the Defense of Marriage Act in Astonishing X-Men #59.

Marvel Comics has not responded to requests on how and when they will handle the SCOTUS ruling by time of posting.

Timeline – The Rise and Fall of the Defense of Marriage Act

However, states like New Jersey that opted for options like civil unions or domestic partnerships instead of same-sex marriage will most likely not benefit from this ruling. The decision refers specifically to the word “marriage” and while these other legal relationships are suppose to be equal to marriage in everything but the name, that is only true for within those states’ borders. The Washington Post reports that the federal Office of Personnel Management has already released a memo dated July 3 stating that in the wake of the DOMA ruling that while employees in same-sex marriages can start receiving spousal benefits, those in civil unions and domestic partnerships will continue not to have access. The updated visa policy mirrors that decision, as well.

New Jersey is one of the four remaining states that will continue to civil unions for same-sex couples instead of marriage after Rhode Island starts issuing same-sex marriage licenses ion August 1. On October 25, 2006, Lambda Legal won the New Jersey Supreme Court case Lewis v. Harris that ruled that same-sex couples are entitled to the same rights as opposite-sex couples. The court decided to give the state legislature six months to remedy the inequality. The legislature chose instead of extending marriage to same-sex couples to creating civil unions. However, even before the U.S. Supreme Court DOMA ruling, the inequalities between marriage and civil union within New Jersey’s borders were apparent.

On the same night that Kerry announced the updated visa policy, former U.S. Congressman Barney Frank (D-Mass) condemned Governor Chris Christie (R-N.J.) on the season finale of  “Real Time With Bill Maher” for vetoing the state’s same-sex marriage bill.

“I do want to note that Chris Christie is the single individual most responsible for gay and lesbian people not being able to get married in America. His legislature passed a bill to allow same-sex marriage, so Chris Christie individually, more than any other single individual, is blocking that for millions of people. They (the N.J. Legislature) are going to vote in December for an override.”

Not only did attorney Stephanie Hunnell write about the complications with civil unions on a federal level, but she deals regularly with couples having state-level issues on a regular basis. As owner the New Jersey family law practice Hunnel Law, L.L.C., many of her clients report issues when going to a hospital to see their civil union or domestic partner that spouses do not encounter, both within New Jersey and in other states.

New Jersey Civil Union versus Same-Sex Marriage Post U.S. Supreme Court DOMA Ruling from Tom Arana-Wolfe on Vimeo.

“There was a review commission that said that it is just not working, nobody really understands what a civil union is necessarily,” explains Hunnell. “Couples go to hospitals and the hospital staff does not understand that this person is their spouse for all intents and purposes. They just don’t have any kind of a grasp on what a civil union is. Worst is that when people go out of state, it is not necessarily recognized. Even where they have marriage in New York, for example, a civil union couple that had an accident and went to and they wanted to go see their other partner in the hospital would be barred from going there because the staff did not understand what a civil union was and that partner didn’t have their health care directive.”

On July 3, 2013, Hunnell held a free post-DOMA Q&A at her husband’s restaurant the Kissing Booth in Asbury Park, N. J. to discuss the legal ramifications of the Windsor ruling.

Martin Marino, Jr. entered a civil union with his partner Matthew Philbin after being together for twenty-three years on the beach of their home in Asbury Park. N.J. in May 2012. They did not rush in 2007 to get hitched because they were already listed with the state as domestic partners on the very first day it was offered July 10, 2004. For Martin and Phil, there was not a big difference between the two and both were not marriage.
Martin Marino, Jr. Explains How New Jersey Civil Unions Aren’t The Same Currency As Marriage from Tom Arana-Wolfe on Vimeo.
“I don’t want to say that it is insignificant,” tells Martin, a registered nurse. “Civil union just doesn’t, to quote the founder of Garden State Equality and the former executive director Steven Goldstein, ‘civil union is not the same currency as marriage.’ It would be like you coming here and trying to use Argentinean money. Yeah, it is money, it has value but people just do not recognize it. So, when you say you are civil unioned, it’s just awkward. Words do matter and the words civil union don’t mean a lot.”

Infographic - Same-Sex Marriage and the IRS Post-DOMA

Infographic – Same-Sex Marriage and the IRS Post-DOMA

Steven and Jim Powers-Hill realized the differences between civil union and marriage early on. Both widowers from a previous relationship, they felt first hand what Edith Windsor experienced by the IRS taxing them on their partner’s estate. When their relationship got serious, they spent the attorney’s fees to draw up all of the legal papers to give each other a sliver of the medical and financial rights that are automatically granted once wedding vows are uttered.

While never experiencing any real problems with their New Jersey civil union, their history and frequent out-of-state travel to see Steve’s side of the family in Missouri led to the decision for them to cross the state border into New York and wed once same-sex marriage became legal in 2011. Once married, they no longer had to play Twenty Questions with any new Missourian they meet about what a civil union is and how it works.

With Steve’s history of cancer, they fret over the possibility of having to go to the hospital away from the safety of home. Less now, though, that they are married.

“Believe me, that is one of our biggest fears is having to go to the hospital,” describes Jim. “As long as we are on the East Coast and up North, we are fine. But once that we leave here, no, that’s one of our fears. Especially when you get up in age.”

Steven and Jim Powers-Hill Elaborate On Why They Married When They Already Had A Civil Union from Tom Arana-Wolfe on Vimeo.

“Most of the places that we go to I say that we are married,” continues Jim. “We could always lie and say that we are brothers because we have the same name on our licenses, but I don’t fear it as much with marriage as I did with civil union. When you use the word partner, most of the time business partners cannot get in. That actually happened through the cancer because it still wasn’t husband and husband. I said to someone, ‘I’m going to see my partner’ and they started to ask questions and I was ‘Yeah, we’re in a civil union partner not a business partner,’ so it was okay.”

Lambda Legal returned to New Jersey court on July 3, 2013 and filed for summary judgment on behalf of Garden State Equality and the original six same-sex couples from Lewis v. Harris. Lambda Legal Deputy Legal Director Hayley Gorenberg argues that “”now that DOMA is gone, New Jersey is, as a matter of law, in direct violation of the New Jersey Supreme Court order we won in 2006 that requires equality for same-sex couples, and in violation of the Equal Protection clause of the federal Constitution. New Jersey’s discrimination is all that bars same-sex couples from the full array of federal protections for their families.”

Oral arguments in the case are scheduled to start on August 15, 2013.

“It was a phenomenal moment and you know that people always think that with a magic wand the next day everything is different,” describes Matt. “We know that it is a process and that it will take time with for the government to make the changes but knowing that those changes are here and in the works has changed everything. In New York, it does not feel like it was necessarily a huge, life-changing event because New York is already a very gay-friendly state. I think of the people in Iowa who probably were out of their minds with joy because they see a huge change coming for them and it’s changing perspectives and views of people globally, not just here, around the world.”

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