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  • Bloggings: Gay Marriages: Why Are We Still Living in a Cave? by Carl Shusterman

    Bloggings on Immigration Update

    by Carl Shusterman

    Gay Marriages: Why Are We Still Living in a Cave?

    Imagine receiving an I-130 denial from the INS which read: “You have failed to establish that a bona fide marital relationship can exist between two faggots.”

    This notice was sent by the Los Angeles office of the INS in 1975 to Richard Adams, a naturalized U.S. citizen born in the Philippines, with regard to the immigrant visa petition (I-130) that he had submitted to the INS on behalf of his spouse Anthony Sullivan, an Australian citizen, who had arrived in the U.S. as a visitor and who married Adams in Boulder, Colorado.

    A Federal District Court Judge upheld the INS’ decision (albeit with the word "faggot" removed).  Later, in 1982, in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), the 9th Circuit Court of Appeals unanimously upheld the decision of the District Court Judge.

    The Appeals Court held that it was bound to follow the words of the statute and the intent of Congress if there was any rational basis for doing so.  At that time, another section of the law held that homosexuals were excludable from the U.S.  Therefore, the Court concluded that when Congress used the term “spouse”, they were referring only to partners in heterosexual marriages.

    Adams and Sullivan urged the Court to strike down the law as a violation of the Equal Protection Clause of the Constitution.  However, the Court held that the executive branch’s power over immigration trumped any rights granted by the Constitution. 

    The Supreme Court declined to review the holding of the 9th Circuit, and the Court’s decision remains binding today.  As recently as 2011, a Federal District Court Judge ruled that he was bound by the decision in Adams v. Howerton

    Of course, things may change depending on the Supreme Court’s decision regarding the constitutionality of the Defense of Marriage Act (DOMA) which is expected in 2013.

    Sadly, Richard Adams will not be around to see what the Supreme Court decides.  He died at the age of 65 in December 2012.  The day before he died, Sullivan, who had lived quietly in the U.S. with Adams for decades, told him that the most important victory was that they were able to remain together as a couple.

    “Richard looked at me”, Sullivan stated, “and said ‘Yeah, you’re right. We’ve won.’”

    About The Author

    Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California. He was a former U.S. Immigration & Naturalization Service Attorney and worked for the Board of Governors, and the American Immigration Lawyers Association.

    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
    Comments 1 Comment
    1. sfcooper's Avatar
      sfcooper -
      I recall a decision issued by the INS District Office in Chicago in the early '80s denying an I-130 filed by a transexual USC on behalf of her husband. The decision indicated that the marrriage was not valid for immigration purposes since the marital relationship was not between a male and a female since, in order to be a female, the petitioner must have the ability to bear children. I think the petition sued INS for civil rights violations and negotiated a significant settlement. Perhaps Bob Ahlgren handled the case.
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