The State of Utah’s stunning admissions in last week’s oral argument before the Tenth Circuit Federal Court of Appeals and in briefs filed with the court make one thing abundantly clear: the state should drop its appeal of the federal district court’s ruling last December in favor of marriage equality. We’ll never forget the joy we felt seeing over a thousand LGBT couples dash to their local clerk’s offices in Salt Lake City and other Utah environs during the winter 2013 holiday season before the district court’s order was stayed. It’s time for those weddings to begin again.
The State of Utah put forth many baseless, unpersuasive, and convoluted arguments before the court. The one that perhaps struck us most was the State’s concession that children of same-sex parents would likely be better off if their parents were able to be married. But instead of caring for those children by embracing the right of LGBT couples to marry, the State callously said that their “principal concern” in the case is “the children of heterosexual parents,” leaving the children of LGBT parents in the dust. When questioned at oral argument, Utah’s counsel matter-of-factly wrote off the needs of children of same-sex couples by saying that laws involve “tradeoffs.” Not only does their argument suggest a remarkable lack of human empathy, but it is also unsound as a matter of law.
One thing that rings loud and clear from last summer’s United States Supreme Court decision in United States v. Windsor striking down section 3 of DOMA is that Justice Kennedy and the majority of the Supreme Court are very concerned about the effects that discriminatory marriage laws have on LGBT families, especially the children on LGBT parents. The Court held that DOMA “humiliates tens of thousands of children now being raised by same-sex couples….mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Further, the Court stated that “DOMA instructs … all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”
The saddest aspect of Utah’s legal argument is that it fails to recognize that marriage equality is not a zero-sum game. Ending the exclusion of LGBT couples from marriage robs no one else of their freedom to marry. Far from hurting anyone else, protecting and caring for kids of LGBT parents benefits everyone, not just LGBT families. Recognizing our common humanity lies at the heart of the marriage equality movement. In an attempt to appear compassionate, Utah wrote in its brief that it “respects and values [LGBT] citizens and their children as … equal before the law ….” If that’s the case, we urge the State of Utah to drop its appeal, end the marriage ban, and pass legislation to make full LGBT equality a reality in Utah.
By MEUSA National Media Director Stuart Gaffney and MEUSA Director of Legal & Policy John Lewis
This article originally appeared in SF Bay Times, April 17, 2014: http://sfbaytimes.com/utah-should-drop-its-appeal-and-let-the-salt-lake-city-weddings-begin-again/
The Defense of Marriage Act (DOMA) may have met its demise last June but same-sex binational couples living abroad are still waiting for the federal government to recognize their marriages and allow them to return to America. Melanie Servetas and Claudia Amaral, a married, same-sex, binational couple living in exile in Amaral’s home country of Brazil, are one of the tens of thousands of couples who have found themselves caught in the backlog of cases waiting to be approved for an American green card.
Servetas and Amaral began their relationship in 2009 after meeting through an online dating service. Servetas held a high level position as a Senior Vice President with Wells Fargo in Rancho Cucamonga, California. Amaral was a successful IT business owner in Brazil. Within the next few months, the couple quickly found out about America’s unjust immigration laws and sought out options seeking a way they could be united. “After about six months, I decided to come here to Rio for a visit,” Servetas said. “After my trip here, I decided there was no way we could go on with our lives living apart.” Servetas gave up her American home and job and re-located to Brazil, intending to bring Amaral back to the U.S. with her should that ever become possible. In Rio de Janeiro, on June 26, 2013, the couple followed the news as the U.S. Supreme Court struck down DOMA, the federal law forbidding federal recognition of same-sex marriages. As soon as the ruling was public, the couple rushed to marry. They rejoiced at the thought of returning together to the United States. “Unbelievable joy that we could finally come home, sadness that we were still in Brazil, disbelief that we still have such a long way to go for equality and proud to be even a small part of a fight like this for equality” explained Melanie Servetas regarding her initial emotions after the repeal of DOMA.
Due to DOMA restrictions, American citizens in same-sex binational relationships were previously denied the right to sponsor their foreign-born partners for the purpose of immigration. Once DOMA was repealed, immigration opportunities became available to all same-sex binational couples. However, even during this time of celebration, the process of applying for a green card as a same-sex couple caused Servetas and Amaral to feel nervous and unsure of the future.
Despite the DOMA ruling and the resulting change in U.S. immigration law, hardships remain for the couple. Shortly after marrying, the couple submitted Amaral’s green card application with the assistance of their attorney, Regina Jefferies. The U.S. Citizenship and Immigration Service (USCIS) initial approval process can take up to seven months. Once approved, the application gets transferred to the Department of State’s National Visa Center (NVC) for further review.
“We are still waiting for USCIS to notify the National Visa Center that their petition has been approved,” Jefferies said. “Once the petition gets transferred to the NVC, they request additional information. They do some pre-processing for the consulate. Once that information is there, it takes them another 30 business days to review. The NVC will complete their initial processing and forward the entire file out to the consulate in Rio.”
The procedure for applying for a green card for those couples who have been forced to live abroad in order to be together is an exhaustive and lengthy process. “We’ve been stuck, on hold in the process for almost 60 days now. USCIS has sent our approved petition to the NVC but the NVC has not officially confirmed they have received it for the next steps,” said Servetas.
After already enduring significant emotional and financial suffering, the waiting has made the situation almost unbearable. But Servetas and Amaral are committed to following through with the legal process so that they can return to America, despite the extreme burdens the system has placed on them. “The very long delays to process applications for people who have already suffered discrimination and hardships totally frustrate us,” said Servetas. “It seems wrong that our Consular processing is taking so much longer than that of people who were able to apply to the USCIS because they didn’t have to leave the US in order to stay together. I can’t believe we are still so many months away from even having our consular interview.”
Time is of the essence for the couple as critical family matters have arisen in America. The need for the couple to return to the United States in the near future has become even more pressing. “I am very worried because my family in the U.S. urgently needs our assistance to care for an ill family member and we haven’t been able to get a response on our request to expedite,” said Servetas.
Couples like Servetas and Amaral are running out of time and money as the United States continues infighting over immigration reform. The need for comprehensive immigration reform seems clearer than ever with so many couples finding themselves locked into a system bound by massive red tape and bureaucracy.
“The government has ‘safe traveler’ global entry programs -- certainly something similar could be applied in order to let us come into the U.S. We’d be able to begin to work at putting our lives back together while we wait out the approval process,” said Servetas. “Also, those cases being handled abroad through the consulates should be allowed to bypass the USCIS portion and apply directly to the consular post for approval. Handing these files back and forth, where they end up just sitting without review for months on end, seems punitive to a population like us who have already suffered discrimination. Just allow consular processing to be a direct procedure with the State Department.”
What couples like Servetas and Amaral have already endured in their attempts to be together should be considered astonishing. In America, we continue to fight for equality. But many injustices continue as the plight of those who have had to choose between love and country are forced to pay the penalty of previous discriminatory laws. By no means do Servetas and Amaral minimize the struggle that same-sex binational couples who reside in America face. They only want to let people know that for those who have been exiled by love, trying to come home is proving to be just as difficult as leaving was. Servetas and Amaral are still waiting to move forward with their application process and are committed to continue the fight against America’s broken immigration system.
By Gina Caprio