fatman

Hi, I hope people can help me. A Californina Judge recently ruled that the State of California cannot bar gay marriage. I'm writing an article for a friends 'zine about what this might mean to immigration on a marriage based visa. I know the ruling is subject to an appeal before coming into law, but if anyone has any knowledge about rules affecting gay couples presently or legal information concerning the issue I would be very grateful to hear it.

crg

It doesn't effect anything from an immigration standpoint. Federal authorities make and enforce immigration laws and regulations. California law doesn't matter.

fatman

so this means that a gay couple, say one was English the other Californian, will not be able to emigrate to California on a marriage visa?
Which has precedence, State law or Federal law and could federal law be challenged on this issue?
Thanks for your input

bionomique

www.uscis.gov

The validity of a marriage is a question of Federal law, not of State law. In 1996, Congress clarified the Federal law concerning recognition of marriage by enacting the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996). The DOMA contains a statutory definition of "marriage," and of the related term, "spouse."

Per DOMA, in order for a relationship to qualify as a marriage, one partner must be a man, and the other a woman. This definition applies to the construction of any Act of Congress and to any Federal regulation.

crg

Federal law supercedes state law. In your scenario, the couple you descibe wouldn't be allowed to emigrate to the U.S. based on a marriage visa. If California would allow it, California is still located inside the U.S. and the feds decide who lives in the US.

It would be the same if a state legalized marijuanna. The feds would still send in the DEA and arrest people on federal charges.

I did hear that someone who immigrates to Quebec has to get permission from Canada, and then permission from Quebec as well.

fatman

But there is no constitutional amendment yet that outright bans gay marriage or specifies marriage is between a man and a woman. It is illegal from an immigration standpoint because of the use of the word 'spouse' in the law. Am I right in thinking federal law says nothing on the issue, it is only the immigration law that forbids it? Do you think the immigration law could be appealed based on the constitution or the declaration of human rights?
once again, thanks for your input.

bionomique

I imagine rather the use of the clause "between a man and a woman" is more the case. Although that causes me to wonder whether that would cover all alternative marriage situations. Would that also preclude marriage of a transgender?

celine_uk

There are no immigration laws in the USA in regard to same-same couples, which is completely unfair and against human rights. Lets say an America man falls in love with his British boyfriend, there is no way his partner could even immigrate to the USA based on their partnership but on the other hand an American man could marry a women (a complete stranger) and qualify for a green-card based on their marriage. I wonder if America will ever give immigration rights to same-sex couples? From a young age I remember hearing this “Freedom and equality for all Americans” Hmm I think not

(Just to let you guys know, if you marry in Canada the Canadian government now treats same-sex marriage just like straight marriage as far as immigration is concerned)

bionomique

There's no law in the USA which would permit a man to marry five wives either, yet it is possible elsewhere in the world. Would you consider that unfair and against human rights too?

celine_uk

I wasn’t talking about gay marriage. There is one thing I’ve come to realise is that the USA will forever be behind the rest of the western world as far as gay marriage is concerned. You would think at least the US government would make provisions for same-sex partners of American citizens to immigrate to the USA.

This is what you people need to know, all gay people want is equal rights, they want civil marriage (not religious marriage) call it what you want civil union, same-sex marriage the wording is irrelevant .if a priest doesn’t want to marry same-sex couples then so be it, I have heard many a time priests refusing to marriage straight couples because the priest believed they weren’t getting married for the right reasons. I could look back in history and hear exactly the same argument in regard to inter-racial marriage which one time I believe was illegal in the USA and hearing the same comments, its isn’t natural to marriage someone of a different race etc etc (whatever). Same sex marriage is about 2 people, to normal people who love each other and just happen to be of the same sex.

bionomique

If a priest will not marry a heterosexual couple because he thinks they are not ideal for marriage, and he won't marry a same sex couple either, there is no inequity. What you are meaning it that you think that immigration should permit same-sex couples to immigrate without a marriage, because their marriage is not legally permitted, correct? But in so far as equal rights are concerned, where would you draw the line? Would we then permit a US citizen to petition for his five wives to come to America too?

celine_uk

I would permit 2 people in a long term relationship to immigrate, just like the rest of the world does, its called common law partnership, Canada allows un-married couples of one year or more who can prove and document their relationship to immigrate as a couple, England 2 years, whether they are same-sex or not, and many other western countries have similar immigration laws, you comment on same- sex marriage -we are not talking about someone marrying 6 people here, we are talking about 2 people who love each other nothing more nothing less and they just have happen to be of the same sex

bionomique

So, by your recommendation 2 people who love each other would be permitted, but not 6 people who love each other?

celine_uk

whatever, this discussion is going no where.

if you deny same sex couples marriage and all the legal privileges and reasonability’s that go with, then alternative legislation should be drafted for un married couples whether they are same sex or opposite sex, (E.G common law partnership).What you should stop doing is mixing gay marriage with polygamy, they are 2 very different things, same-sex relationships are almost identical to opposite sex relationships, say for example, 2 women are in relationship they have lived together for 20 years and are legally married in Canada, one partners needs to work in the US for a year, her partner has no legal means to even join her on her temporary stay in the US , this is simple discrimination, nothing more nothing less,

bionomique

You're right, it is going nowhere. I am just mystified by others' logic. Your argument could equally apply to the hypothetical scenario I presented.