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  • Blogging: Supreme Court Strikes Down Bigotry Against Same Sex Marriage Partners: Will Congress Overturn Bigotry Against Immigrants? by Roger Algase

    Immigration Law Blogs on ILW.COM

    by Roger Algase

    Bloggings: Supreme Court Strikes Down Bigotry Against Same Sex Marriage Partners: Will Congress Overturn Bigotry Against Immigrants? By Roger Algase

    On June 26, 2013 the Supreme Court made history by striking down DOMA, the so-called "Defense of Marriage" Act, on the grounds that, according to Justice Kennedy writing for the majority, its purpose was to "disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."

    In contrast, it was almost comic to see Justice Scalia, in his dissent, which also contained one of his typical rants against "homosexual sodomy" (see also his dissent in Lawrence vs. Texas 539 US 558, 2003). almost pleading for tolerance for anti-gay bigots, as if their opinions were also somehow worthy of respect.

    However, no one is trying to stop Justice Scalia, or any one else, from expressing his hatred for people in same sex relationships. We have a First Amendment. But, the majority is clearly saying, just don't codify hate into law.

    It is also ironic, that while the minority insisted that issues such as the definition of marriage should be left to the people's elected representatives, not the courts, the same right wing Justices, unfortunately joined by Justice Kennedy himself, only the day before refused to honor the will of the elected representatives in Congress by striking down the heart of the Voting Rights Act (VRA) which has protected the rights of minority voters to have access to the ballot box for nearly half a century.

    The reasoning of the Court's hard core right wing Justices seems to be clear. An act of Congress is Constitutional when it promotes bigotry, as in the case of DOMA, but is unconstitutional when it protects people against bigotry, as does the VRA.

    It is also worth noting that in striking down DOMA, Justice Kennedy focused on the harm it does to children being raised by same sex couples, as much as, if not even more, than the harm done to the same sex marriage partners themselves. in his words:

    "[DOMA] humiliates tens of thousands of children now being raised by same-sex couples."

    By this token, how can our current immigration laws providing for the deportation of hundreds of thousands, if not millions, of legally married parents of American citizen children (or even non-citizen children, for that matter), withstand Constitutional muster?

    Is not deportation of a parent "humiliating" for a child (among many, many other things)?

    And, since it is no longer Constitutional to discriminate against same sex marriage partners in granting green cards, is there any basis left for discriminating against any immigrant marriage partner seeking a green card on affidavit of support (or, for that matter, criminal) grounds?

    When IIRIRA was enacted almost twenty years ago, it was obvious to everyone that the main purpose of the I-864 affidavit of support requirement was to stop Latino and other less affluent minority immigrants from getting green cards, even though legally married and in a genuine marriage relationship.

    How can that requirement, as well as hundreds, if not thousands, of others in IIRIRA and other immigration laws intended to humiliate and persecute minority immigrants withstand Constitutional scrutiny?

    Most important of all, now that the Supreme Court has struck down discrimination against people in same sex relationships, will Congress follow suit in passing CIR in order at least to reduce the legal discrimination against brown- skinned immigrants which has also been a blot on America's history for far too long?

    America has taken a giant step forward by ending discrimination against same sex marriage partners. It is now time to begin ending discrimination against minority immigrants. This is why, despite its shortcomings and concessions to right wing anti-immigrant bigotry, it is essential to pass CIR.



    About The Author

    Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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