Eng & Nishimura

Gays and lesbians can now marry in several countries. They can also marry in two US status—California and Massachusetts.

Unfortunately, the misnamed “Defense of Marriage Act” (DOMA) states that “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' 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.” This means that the Federal government is prohibited from recognizing marriages where the couple are both of the same sex. This means that immigration benefits remain out of reach for same sex marriages.

Although the DOMA will probably be eventually challenged in court, immigration cases are not the right vehicle to launch such a challenge. The courts have consistently held that Congress and the President have regulate immigration in pretty much any way they wish, even when that regulation would otherwise be discriminatory, and therefore illegal. The proper vehicle for a challenge to DOMA will, therefore, probably have to be mounted in the Social Security or tax law context, where the couple are both US Citizens.

The DOMA should have been named the Definition of Marriage Act, as that is all it does, provide a definition of marriage. There are provisions whatsoever in it that would protect marriage: no provisions for counseling prior to marriage, no provisions for marriage counseling for married couples who are having problems with their marriage, no provisions encouraging couples to remain married. As such, all it protects is an increasingly outdated definition of marriage, and not marriage itself. Love, and family are too precious two people in love, who would otherwise make a loving family, to be forced to live as second class citizens because of the views of certain politicians. (This paragraph represents the opinion of J Charles Ferrari, Esq. and not necessarily that of the firm.)