Federal Judge Certifies Class Actions Against DOMA Section 3

A federal district judge in Los Angeles has certified a nationwide class action lawsuit attacking the constitutionality of Section 3 of the Defense of Marriage Act in the context of spousal immigration rights.  Having denied a motion to dismiss the case by the  Justice Department and the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) on April 19, Judge Consuelo B. Marshall then determined in a separate ruling that plaintiff Jane DeLeon and her attorneys, Peter A. Schey and Carlos R. Holguin of the Center for Human Rights & Constitutional Law, may sue on behalf of “all members of lawful same-sex marriages who have been denied or will be denied lawful status or related benefits under the Immigration and Nationality Act (INA) by the Department of Homeland Security (DHS) solely due to Section 3 of the Defense of Marriage Act (DOMA).”

The INA extends special status to foreign nationals who are lawfully married to U.S. citizens for purposes of residency and applications for citizenship, but  DHS has refused to recognized lawfully married same-sex couples because Section 3 of DOMA provides that only a marriage of one man and one woman will be recognized for purposes of federal law.  The Supreme Court is expected to rule on a constitutional challenge to Section 3 by the end of its current term in June, in a case where Edie Windsor, the surviving same-sex spouse of a U.S. taxpayer, is suing for a refund of estate taxes that would not have been due if the government had recognized their marriage.

If the Supreme Court rules on the merits that Section 3 violates the 5th Amendment, this national class-action lawsuit could be quickly resolved with an order to DHS to stop relying on DOMA and to extend equal treatment to same-sex marriages.  If, as is possible but less likely, the Supreme Court resolves the Windsor case on narrower grounds, this new lawsuit would proceed with the potential to bring the question back up to the Supreme Court in the immigration context.

Jane DeLeon, a citizen of the Philippines, came to the United States on a visitort visa late in 1989 and stayed.  She had lived for several years in the Philippines in a non-ceremonial marriage with Joseph Randolph Aranas, with whom she had two sons, but that relationship appeared to be over when she came to the United States.  Aranas followed her here, however, and they lived together again briefly.  However, in 1992 she met Irma Rodriguez, and they started living together in California.  In August 2008, they were married there.

A few years prior to the marriage, DeLeon’s employer had applied on her behalf for permanent resident status, her visa petition was approved, and she filed an application for “adjustment of status” for herself and her son, Aranas, but DHS decided she and her son were inadmissible because, they claimed, she had misrepresented her name and marital status when she first entered the U.S.  At that time, she had identified herself as “Jane L. Aranas,” a “housewife.”  DHS instructed her to apply instead for a “waiver of inadmissibility,” premised on hardship to her U.S. citizen spouse or parent, and she applied for such a waiver, citing her elderly father, who is a U.S. citizen.  But this application was denied in 2011.  On advice of her attorneys, she then filed a new application, citing her wife, Irma Rodriguez, as the person who would suffer hardship if DeLeon was required to leave the U.S.  DHS denied this application, citing DOMA Section 3 and refusing to recognize her marriage with Rodriguez.

DeLeon’s lawsuit claims a violation of her rights under the 5th Amendment, citing both equal protection and due process of law, as well as sex discrimination. Her son and wife also joined as co-plaintiffs, but Judge Marshall found that neither of them had “standing” to be in the case.  However, the court found that DeLeon’s complaint stated a claimed for violation of her equal protection rights.

The Justice Department, representing DHS, raised various technical defenses and succeeded in getting Judge Marshall to remove the co-plaintiffs and narrow the legal theories of the complaint.  Applying 9th Circuit precedents, Judge Marshall found that Section 3 will be subject to judicial review using the rational basis test.  In line with Obama Administration policy, the Justice Department conceded various points on the merits of the equal protection claim.  However, BLAG, which was allowed to intervene as a defendant, made much the same arguments that it put forward in the Windsor case, including arguments that the Administration no longer makes about defending traditional marriage and preferring different-sex couples as parents.

 Judge Marshall observed that the 9th Circuit Court of Appeals, whose rulings are binding on her court, had already rejected most of those arguments in recent rulings such as Perry v. Brown, the Proposition 8 case, and Diaz v. Brewer, a ruling concerning domestic partner benefits claims by Arizona state employees.  There was one argument, however, that had not yet been considered by the 9th Circuit, as it has not yet ruled on the merits in a challenge to Section 3 of DOMA.  That is the argument, pushed strongly by BLAG in the oral argument before the Supreme Court in the Windsor case, that the federal government needs to have a uniform national definition of marriage to administer its myriad programs, and can insist on using the “traditional” definition that is followed in an overwhelming majority of the states.

Judge Marshall, observing that under this argument legally-married same-sex couples are treated differently from different-sex couples, found that such an approach failed the rationality test.  “This Court finds that the broad distinction created by DOMA Section 3 is not rationally related to Congress’ interest in a uniform federal definition of marriage,” she wrote.  “Contrary to [BLAG]’s argument, DOMA Section 3 does not ‘ensure that similarly situated couples will be eligible for the same federal marital status regardless of the state in which they live.’  Opposite-sex couples may receive federal marriage-based benefits if joined in a valid state marriage.  Same-sex couples will not, even if like Plaintiffs, they are joined in a valid state marriage.  The Court further finds that Plaintiffs have stated a claim that DOMA Section 3 violates their equal protection rights.”

However, Judge Marshall rejected the claim that failure to recognize same-sex marriages violates the 5th Amendment’s substantive due process requirements.   “To sustain a due process challenge,” she wrote, “Plaintiff DeLeon must show that her ‘right to maintain family relationships and personal choice in matters of marriage and family life free from undue government restrictions’ is a qualifying liberty interest of which she was deprived.”  While conceding that DeLeon has a liberty interest in ‘autonomy…in her personal decisions relating to marriage, procreation, family relationships and child rearing,” she wrote, citing Lawrence v. Texas,” she asserted that “it is not readily apparent, however, how DOMA infringes on DeLeon’s liberty interests,” since it does not involve the imposition of any criminal or civil penalties on DeLeon “based on her homosexuality.”  Finding that DeLeon’s due process rights “are not implicated by DOMA,” the court dismissed this part of her case.

The court’s decision to certify this case as a nationwide class action is particularly significant, as it involved the court’s finding that there is a common question of law for everybody included in the description of the class.  A ruling on the constitutionality of Section 3 will be dispositive in rejecting the DHS’s reliance on that provision to refuse recognition to same-sex marriages involving foreign nationals and U.S. citizens.  The court rejected the government’s argument that ultimately every status petition turns on its own individual facts, such that its ultimate disposition will depend on much more than the Section 3 issue.  Since the Section 3 issue is the threshold issue prior to any ruling in individual cases, the court concluded that it was appropriate for it to be decided in one proceeding, and that DeLeon and her attorneys were qualified to represent the interests of a broadly-defined national class of plaintiffs, even though some of those in the class might be disqualified for other reasons from being allowed to remain in the U.S., to work here, or eventually to become a citizen.

In a further ruling, however, Judge Marshall rejected DeLeon’s motion for preliminary injunctive relief pending trial.  This motion argued that the court could decide, as a matter of law, that Section 3 is unconstitutional and immediately order DHS not to rely upon it.  In order to grant such a motion, the court would have to find that it was highly likely that DeLeon would prevail after a trial on the merits, that she would suffer “irreparable injury” if preliminary relief isn’t granted, that the hardship on the government of receiving such a ruling did not outweigh the hardship on DeLeon of denying it, and whether the public interest would be advanced by granting such relief.  All four of these criteria must be met for relief to be granted, and Judge Marshall concluded that three of the criteria were present, but that the irreparable injury was not.

She found persuasive the government’s argument that under recent Obama Administration policy directives, DHS is not actively seeking to remove same-sex spouses of U.S. citizens while all await a ruling on the merits from the Supreme Court in the Windsor case.    “Defendants and Intervenor provide evidence that the appropriate application of prosecutorial discretion to immigrants in same-sex marriages has already been clarified as part of a comprehensive policy update in three memoranda issued by ICE Director John Morton to all ICE employees,” she wrote.  “While DeLeon and the plaintiff class have undeniably been harmed by the potentially unconstitutional application of DOMA Section 3 to their immigration petitions, it is less clear whether any members of the plaintiff class are likely to suffer irreparable injury pendent lite [while the case is pending].  The Morton memo provides detailed guidance on the proper exercise of ICE’s prosecutorial discretion.  The October 5, 2012, amendment to the Morton Memo specifically expanded ICE prosecutorial discretion for the benefit of those in same-sex family relationships.”  The judge observed that none of the cases cited by the plaintiffs to support their irreparable injury argument actually post-dated October 5.

Having satisfied itself that preliminary relief was not necessary to prevent injury to the plaintiff class, the court denied the petition.

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