Immigration attorney Lavi Soloway knows exactly where he’ll be Wednesday morning: standing in line outside the US Supreme Court, hoping to hear a case that could completely change the lives of his clients.
For 20 years, Soloway has fought tenaciously for marriage equality and the rights of LGBT immigrants, and currently represents 70 affected couples.
Since 1996, his clients’ main obstacle has been the federal Defense of Marriage Act (DOMA), which defines marriage exclusively as a union between a man and a woman. The law, which President Bill Clinton signed and now opposes, deprives protections to all gay and lesbian couples, but is particularly problematic for bi-national couples, who can be more easily torn apart because of US immigration policy. The law is one of two potentially landmark cases involving gay marriage before the Supreme Court this week. Arguments on the other case begin Tuesday.
“It’s been a gradual process, with many years when there was no progress to point to,” Soloway told The Times of Israel about his slow-going, uphill battle.
But in the past three years, momentum has been building in his clients’ favor.
“Apprehension and pessimism have given way to an avalanche of real, palpable change,” he said, referring to Americans’ rapidly changing attitudes toward gay marriage. A survey by the Public Religion Research Institute shows that American Jews in particular are in favor of gay marriage, at a rate far greater than other religious groups.
Gay marriage and civil unions are currently legal in 18 states and the District of Columbia. November’s election was seen by some as a turning point in the movement, as voters rather than state assemblies approved same-sex unions in Washington and Maryland.
In addition, there have been 10 court rulings since 2010 deeming DOMA unconstitutional.
“These weren’t all written by liberal, Democrat-appointed judges,” notes Soloway, 46, who is professionally based in New York and Los Angeles. “Some were written by conservative Republican judges.”
In February 2011, the Obama administration told the Department of Justice to stop defending DOMA in court, and in October 2012, the White House ordered the Board of Immigration Appeals to stop deporting gay non-American spouses of US citizens who had begun the immigration process.
Now the Supreme Court has agreed to hear arguments in United States v. Windsor, a federal suit brought by Edie Windsor, an 83-year-old lesbian widow challenging DOMA, which requires the federal government to deny marital benefits to gay and lesbian couples, even in states that allow gay marriage.
When her wife, Thea Spyer (whom she married in Canada in 2007, after a 40-year engagement) died in 2009, DOMA prohibited the Internal Revenue Service from treating Windsor as a surviving spouse, forcing her to pay more than $600,000 in federal and state estate taxes.
Organizations and seminaries representing the Reform, Conservative and Reconstructionist streams of Judaism have joined hundreds of corporations, civil rights groups and religious organizations in filing friend-of-the-court briefs in favor of overturning the federal ban. They argue that DOMA unconstitutionally restricts religious bodies’ rights to determine what counts as a marriage.
Windsor’s lawyers will attack DOMA from another angle, arguing that it violates the Fifth Amendment’s guarantee of equal protection under the law. If the Supreme Court agrees, “it has the potential to put these questions to rest for all time on both the state and federal levels,” Soloway commented.
“It would be difficult to find these laws to be unconstitutional and not put an end to this kind of discrimination.”
Even if the court limits its decision to certain kinds of cases — rather than legalizing gay marriage entirely — he believes the foundation for ending discrimination will have been put into place.
Soloway represents 70 bi-national same-sex couples who have signed onto the DOMA Project, which he and his legal partner, Noemi Masliah, started in 2010 to raise awareness and provide pro-bono legal services.
As the law stands now, the American spouse in a gay or lesbian couple — even one married in a state or foreign country where gay marriage is legal — cannot successfully petition the United States to grant his or her spouse a green card, or permission live in the US as a legal alien. As a result, such couples, even those with children, have faced deportation, separation and exile.
The cases are just a drop in the bucket of the 48,000 same-sex couples in the US that include at least one partner who is not a citizen, according to a recently released study by UCLA’s Williams Institute. Soloway thinks the numbers are even higher, arguing that many couples, unwilling or unable to deal with the stresses of living in legal limbo, choose to stay in more hospitable countries such as Canada and Australia, and in some parts of Europe.
One couple that turned to the DOMA Project for help are Ari Amir and Nir Maoz, who spoke to The Times of Israel from their home in Brooklyn. Amir, 34, is an American citizen by birth who has lived part of his life in Israel and part in the US. Maoz, a 35-year-old Israeli citizen, moved to New York to live with Amir after they married in Connecticut in 2009, nine years after meeting in Israel. Amir, a classical musician and music therapist, is employed by and studying at New York University.
Like half of the 70 couples represented by Soloway, Maoz’s green card application has been rejected, with the decision now on appeal. (The other half of Soloway’s cases are initial applications pending decisions.) Maoz initially arrived in the US on a diplomatic visa related to a six-month security job with El Al. But that has long since expired, and Maoz, who worked as a pharmacist in Israel, cannot legally seek employment, putting financial strain on the couple.
“The hardest part of all this is not being able to leave the US. If I leave, I won’t be able to come back,” said Maoz. “In these three years, I’ve missed the birth of my first niece, the deaths of both my grandmothers, and many other family events.”
“If DOMA were struck down, I’d be able to breath more deeply, to let out a sigh of relief,” Amir said.
He’s cautiously optimistic about the outcome and ramifications of the Windsor case.
“We’ve both been trying not to overplan before knowing whether our reality will really change,” he said.
Not being able to envision the future has been especially hard for Amir, a natural planner. “If DOMA were struck down, it would bring a dramatic change in terms of our being able to openly discuss raising a family,” he said. “So far, we’ve avoided talking about this.”
Soloway, a gay man himself, also stands to gain personally if DOMA is declared unconstitutional. Born and raised in Toronto in a modern Orthodox family, he, too, is in a bi-national marriage. Fortunately for Soloway, who earned his law degree in New York, he was able to get a green card, and later US citizenship, independent of his marriage to Hollywood film producer Sebastian Dungan.
Soloway and Dungan have a daughter who will soon turn 6.
“There are 1,138 provisions of federal law that affect benefits, obligations, rights and the status of married couples,” Soloway noted. “It’s not just about bi-national same-sex couples, or the adults in gay and lesbian marriages. Should DOMA be ruled unconstitutional, it would have a huge impact on the children in these families, too.”