Family "De-Unification" in the United States: International Law Encourages Immigration Reform for Same-Gender Binational Partners

Article excerpt

I. INTRODUCTION

In 1982 the Ninth Circuit decided that the same-sex1 marriage between Anthony Sullivan, a U.S. citizen, and Richard Adams, an alien, did not qualify Adams as Sullivan's spouse for immigration purposes.2 In Adams v. Howerton, the court held that Congress did not intend that homosexual marriages would confer "spouse" status under the Immigration and Nationality Act (INA)3 and that such a limitation did not violate the Fifth Amendment requirement of equal protection.4

Twenty-two years after Adams, no judicial decision has substantively changed the law on same-gender partner immigration, although Congress reaffirmed and broadened this holding by passing the Defense of Marriage Act (DOMA)5 in 1996, deciding that "the word 'marriage' in all acts of Congress means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."6 Congress incorporated DOMA's discriminatory definition of "marriage" into the INA via DOMA's own incorporation provision.7 Most recently, to combat the increasing support for same-gender marriages in several cities and counties throughout the United States, Congress and President George W. Bush are pushing the Federal Marriage Amendment, which would constitutionally restrict marriage to a union between one man and one woman.8

In an effort to combat this discriminatory treatment against legitimate same-gender binational couples,9 Representative Jerrold Nadler of New York introduced the Permanent Partners Immigration Act (PPIA) to the U.S. House of Representatives on February 14, 2000, again on February 14, 2001, and most recently on February 13, 2003.10 The PPIA would amend the INA to provide a mechanism for U.S. citizens and lawful permanent residents to sponsor their same-gender permanent partners for residence in the United States.11 Senator Patrick Leahy of Vermont introduced the same bill in the U.S. Senate on July 31, 2003.12 As of March 2004, only 120 representatives signed the PPIA in the House of Representatives and the Senate bill had only eleven signatories.13

Despite the seemingly anti-homosexual rights trend that has persisted in the federal government, Vermont passed legislation in 2000 permitting same-sex civil unions14 in accordance with the landmark Vermont Supreme Court decision, Baker v. State.15 Similarly, the Massachusetts Supreme Judicial Court decided on November 18, 2003, that same-sex couples have the right to marry in Goodridge v. Department of Public Health.16 Normally the doctrine of lex loci celebrationis applies to a marriage, whereby the law of the forum where the marriage occurred determines the questions regarding the formalities of a marriage.17 With DOMA in force and unchallenged, however, neither the U.S. government nor other states have been required to recognize the Vermont civil unions or future gay marriages in Massachusetts for any purpose, especially for immigration purposes.18 Since the terrorist attacks of September 11, 2001, Congress has only tightened restrictions on immigration.19 Despite the federal government's immigration slogan of "family reunification,"20 same-gender binational couples have been forced to separate, leave the United States, or live as outlaws because of the United States' narrow interpretation of what constitutes a "family."21

So has Vermont's civil union statute or the new marriage decision in Massachusetts changed anything for same-gender binational partners trying to immigrate to the United States since Adams v. Howertoni If Adams and Sullivan were to obtain a civil union in Vermont today and then reapply for a spouse visa, Adams would still be deported.22 Currently, however, at least fifteen countries around the world recognize same-gender couples for immigration purposes, generally through same-gender marriages, registered partnerships, or civil unions. …