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Gay couples, where spouse is a foreigner, sue over DOMA

Courtesy of Immigration Equality

Tim Smulian, a 65-year-old British and South African citizen, and Edwin Blesch, a 71-year-old American, met in 1999 and have been together ever since – though that has entailed moving countries every six months at an enormous financial cost since they can't legally marry in the US. Despite years of stress, both said it has all been worth it and feel being part of the lawsuit is an "obligation to continue the struggle."

Same-sex couples, in which one partner is a foreigner, have filed a lawsuit challenging a federal law that prevents them from getting a green card for their spouses, just ahead of the start of a related court battle that some predict could bring the issue of gay marriage to the Supreme Court.

The lawsuit, filed Monday on behalf of five binational gay couples, targets Section 3 of the Defense of Marriage Act (DOMA), which blocks federal benefits for same-sex couples -- including the right of an American to sponsor their foreign spouse for a green card. The lawsuit claims that DOMA violates their constitutional right to equal protection.

“Our couples can’t just wait any longer … we’ve spent the past year working with the Obama administration to encourage them to place green card applications for gay and lesbian couples on hold until DOMA is struck down by the courts or repealed by Congress, and they have declined to do that,” said Rachel B. Tiven, executive director of Immigration Equality, which filed the lawsuit along with Paul, Weiss, Rifkind, Wharton & Garrison LLP.  “As a result, we really have no choice but to sue.”

The couples in the lawsuit have been together more than a decade – in some cases more than two – and have struggled to cope with the law while maintaining their relationships.

“They’re at the end of their viable options to stay here as a family,” Tiven said Tuesday. “They’re out of visas … they’re out of work opportunities that would enable them to continue to stay.”

DOMA, enacted by Congress in 1996, blocks federal recognition of same-sex marriage, thereby denying various benefits given to heterosexual couples, such as the right to immigrate. Thirty-nine states have defense of marriage acts, while six states and the District of Columbia allow same-sex marriage, according to the National Conference of State Legislatures. There are an estimated 36,000 binational gay couples in the U.S.

One of the couples in the lawsuit is American Edwin Blesch, 71, and his husband Tim Smulian, a 65-year-old British-South African. The couple married in South Africa in August 2007, where gay marriage is legal. Their union is also recognized in New York state, which approved same-sex marriage last year.

For some gay couples, fight goes on to marry — and stay in the US

“The last years have been probably the most exhilarating in our lives in that we’re together and we both now have the … soulmate that we’ve been searching for all of our lives,” he said.

But the legal restrictions have made life more stressful for the couple, who live in Orient, NY. Smulian’s visa has expired, and though federal authorities have given him an additional year to stay in the country in what is known as “deferred action,” that time will be up Feb. 7, 2013.

“We’re now in our retirement years … there’s not a whole lot of time for us to dawdle around waiting for things like this to be settled,” added Blesch, who says he has HIV/AIDS and needs to stay in the country for his medical care.

The lawsuit notes that if the couples were heterosexual, the federal government would recognize the foreign spouse as an immediate relative of their American partner, who could apply for an immigrant visa for them.

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples, however, these Plaintiffs are being denied the immigration rights afforded to other similarly situated bi-national couples,” reads the lawsuit, which was filed in U.S. District Court, Eastern District of New York. “This is an action to remedy that hateful, harmful, and unlawful discrimination.”

Immigration Equality and other advocates of couples in this situation have urged federal authorities to put the green card applications on hold, rather than deny them outright, while the legality of gay marriage is addressed through legislation or by the courts. They note that immigration judges have opted to put some deportation proceedings on hold while the law is in flux.

“There’s no requirement in any law that says a (green card) denial must come immediately,” said Lavi Soloway, a lawyer representing same-sex couples, whose law practice – Masliah & Soloway – created Stop The Deportations: The DOMA project.

“Press the pause button, don’t destroy people’s marriages,” he added. “Even for a short period so that we make sure we don’t make any premature denials and cause irreversible harm to couples and families.”

Soloway said two other cases were filed last year – one in Los Angeles and the other in Chicago – on the same issue as the Immigration Equality lawsuit, coming amid a number of legal challenges to DOMA.

On Wednesday, a federal appeals court in Boston will hear an appeal over DOMA’s denial of federal benefits to married gay couples – a case Soloway said experts expect to make it to the Supreme Court.

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