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DOMA and Gender Equality: What's Really At Stake

by Gary Endelman

The Attorney General's vacation of the BIA's decision in the Dorman case, 25 I&N Dec 485 (A.G.2011) can be viewed in the limited but nonetheless important sense as part of the Administration's legal retreat away from support for the Defense of Marriage Act (DOMA). It can, however, be viewed in a larger context, one that emerges out of the manner in which the federal courts have approached this same issue of gender bias, but in the context of derivative citizenship and its transmission.

In a series of high-profile decisions, notably Miller v. Albright, 523 U.S. 420(1988); Nguyen v. United States, 533 US 53 (2001) and Flores-Villar v United States, 564 US _____ (2011), the Supreme Court has validated the notion that gender-based distinctions that make it harder for men than for women to pass on United States citizenship to their out of wedlock progeny do not violate due process and/or equal protection of the law. The Flores-Villar per curiam upholding of the Ninth Circuit, 536 F.3d 990(2008) arose out of a 4-4 tie created by Justice Kagans' recusal, something she is unlikely to feel compelled to do in the case of DOMA.

Most of the commentary surrounding the DOMA litigation has focused on medical benefits, bankruptcy and other areas wholly unrelated to the INA. There, the common wisdom holds, is where DOMA is most likely to be breached. Yet, the action by the Attorney General, something that is very rarely done, suggests that gender equality might win a more complete and timely victory for future I-130 purposes than outside the confines of the INA for nowhere is the power of the federal government more complete or unchallenged than in matters of immigration policy. Those who caution that the plenary power enjoyed by the federal government to control immigration will retard the assault on DOMA might revisit their concerns from this perspective. Precisely because of the plenary power doctrine, progress on the I-130 front will be more, not less, possible since the courts will be exceedingly reluctant to challenge remediation initiatives undertaken by the USCIS or the Attorney General. The extra dimension of deference that federal agencies charged with interpreting and implementing the INA provided by the Supreme Court in Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 US 967 (2005) and its progeny can be put to great and powerful use in the immigration arena. Let the defenders of DOMA in Congress step into the breach created by the Administration's unwillingness to defend the statute in court; any executive action, particularly if codified in regulatory form, will trump a subsequent judicial decision interpreting this same complex and dynamic statute.

The attack on DOMA should focus not on the rights of the alien beneficiary but on the denial of equal protection to the citizen petitioner. We are not dealing as Fiallo v Bell,430 US 787 (1977) , did with the right to exclude or admit aliens. Indeed, even the majority opinion in Fiallo noted that "in the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.'" Id. At 792 ( quoting Matthews v. Diaz, 426 US 67,80 n.4 (1975)). Nor are we dealing with the right of Congress to impose retention requirements on derivative citizenship as it did with the former INA Section 301(b), thus making Rogers v. Bellei, 401 US 815(1971) of limited relevance. The issue is not even what level of scrutiny should be applied to condition the immigration benefits accorded to aliens.. Rather it is a return to the rights of US citizens to marry, the fundamental constitutional freedom honored by the Supreme Court in Loving v. Virginia, 388 US 1 (1967). If the free exercise of this right cannot be circumscribed on the basis of racial identity, it may not be limited on grounds of gender identity, an immutable characteristic no less central to the sense of personal privacy whose nurture and protection is central to the Bill of Rights. If we take our strategic direction from Justice Marshall's dissent in Fiallo and frame our critique of Section 3 in DOMA not on discrimination against aliens but on the rights of US citizen spouses to equal protection of the law, then we are no longer dealing with purely an immigration issue but a constitutional one whose disposition can proceed on well-settled principles.

Our understandable enthusiasm for this desired policy outcome should be tempered by the fact that DOMA itself creates a statutory basis for one state not to recognize a marriage that is valid in the state of its celebration:

"Sec. 1738C. Certain acts, records, and proceedings and the effect thereof `

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'.

For this reason, even if the BIA or the Attorney General decides that a same-sex marriage qualifies for spousal benefits under the INA, this might still not be the end of the matter. DOMA must not merely be overturned but made constitutionally impermissible for this controversy to become settled immigration law. If and when it does, the rather unremarkable but nonetheless wholly American notion that the Constitution respects persons not genetics should provide new momentum to the renewed campaign to make the transmission of US citizenship free of the taint of gender bias. As President Lincoln's 1862 annual message to Congress teaches us:

" The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew, and act anew…and then we shall save our country."

About The Author

Gary Endelman is a Senior Associate at Fong & Associates, LLP, a firm specializing in corporate immigration law. Fong & Associates clients include S&P 500, Fortune 500, Global 500 and IT 100 companies, large-cap and mid-cap companies, oil and gas companies (integrated, operations and oil well services), hospitals, school districts, colleges and universities, research institutes, high tech manufacturers and software companies. Gary Endelman's practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for international executives, aliens of extraordinary ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.