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Bi-national gay couples file lawsuit targeting DOMA

Case follows administration’s refusal to hold green cards in abeyance

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A new lawsuit was filed Monday challenging the constitutionality of the Defense of Marriage Act ā€” this time on the grounds that it discriminates against married bi-national same-sex couples seeking to remain together in the United States.

Immigration Equality, an LGBT advocacy group, filed the case in the U.S. District Court for the Eastern District of New York on behalf of five gay couples. The law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP joined the organization in filing the lawsuit.

The lawsuit, known as Blesch v. Holder,Ā targets the inability of these spouses to secure residency in the United States through the marriage-based green card application process.

Americans in opposite-sex marriages can sponsor their foreign spouses for residency in the United States, but that option isn’t available to same-sex couples because of DOMA.Ā These couples are at risk of separation if the foreign national is undocumented or if a temporary visa obtained for work or some other purposes expires.

“Because of DOMA, the federal government does not recognize the marriages of same-sex couples and, therefore, denies them the immigration rights afforded to other married couples,” the complaint states. “As a result, these couples live their lives at constant risk of separation.”

The five couples represented in the lawsuit areĀ Edwin Blesch and his South African spouse, Tim Smulian, who reside inĀ Orient, N.Y.;Ā Frances Herbert and her Japanese-born spouse, Takako Ueda, who reside inĀ Dummerston, Vt.;Ā Heather Morgan and her Spanish-born spouse, Maria del Mar Verdugo, who live in New York City;Ā Santiago Ortiz and his Venezuelan-born spouse, Pablo Garcia, who live inĀ Elmhurst, N.Y.; andĀ Kelli Ryan and her British-born spouse, Lucy Truman, who reside inĀ Sandy Hook, Conn.

The complaint details the stories of each of the couples involved in the lawsuit. For Blesch and Smulian, the complaint notes that Blesch has been living with HIV since 1987. For 11 years, the couple spent six months in the United States and six month abroad to stay together.

However, according to the complaint, complications from HIV therapy as well as other health problems have begun taking a toll on Blesch’s health. As a result, he’s no longer able to spend six months in South Africa because it would be too far from his doctors. The couple has been spending much of their time in Canada, but Blesch’s Medicare doesn’t cover him in that country and he’s forced to return twice to the United States for care.

“Tim, heartbroken, could not accompany Edwin to his doctors (as he always does), fearful he would be denied entry to the UnitedĀ States during those six-month periods,” the lawsuit states.

Immigration Equality’s lawsuit is one of about a dozen pending lawsuits challenging DOMA. This week, the First Circuit Court of Appeals was set to hear oral arguments for two cases, marking the first time an appellate court has held a hearing on DOMA.

Executive director of Immigration Equality Rachel Tiven (Blade file photo by Michael Key)

Rachel Tiven, executive director of Immigration Equality, said her lawsuit was a necessary addition to existing cases because no pending lawsuit focuses on bi-national couples.

“We worked closely in partnership with GLAD, Lambda, ACLU to determine what would make sense to protect the rights of people for whom their DOMA problem is immigration benefits, and really came to the conclusion that the time is now,” Tiven said.

Lavi Soloway, co-founder of Stop the Deportations and an immigration attorney atĀ Masliah &Ā Soloway, said the lawsuit will help draw attention to the plight of gay bi-national couples. He has no involvement with the lawsuit.

Still, Soloway expressed skepticism that the case would have any impact on the law because he thinks other DOMA lawsuits will reach the Supreme Court sooner.

“Certainly, bi-national couples experience Section 3 of DOMA in a way that is hard to compare to any other situation, but the reality is that this lawsuit will move through the federal judicial system for years and is unlikely to produce any immediate change,” Soloway said.

But the Immigration Equality case isn’t the first lawsuit to challenge DOMA on the basis that it’s unfair to bi-national same-sex couples. In September, a federal judge threw out a case filed by Handi Lui, an Indonesian native who was denied a marriage-based green card application.

Tiven said her organization’s lawsuit will be more successful than other immigration-related DOMA cases because it was filed in a different circuit that is governed by different case law.

“We filed in the Second Circuit because we believe that a DOMA challenge based on immigration need will succeed here and because all of the states in the second circuit are marriage equality states,” Tiven said.

The Obama administration announced last year it would no longer defend DOMA in court, and since then ā€” following a vote of the Bipartisan Legal Advisory Group ā€” the House general counsel has taken up defense of the law.

In the Immigration Equality case, the Justice Department is similarly expected to decline to defend DOMA, and the attorneys of House Speaker John Boehner are expected to come to the defense of the anti-gay law.

Immigration Equality has called on the Obama administration to hold the marriage-based green cards of bi-national same-sex couples in abeyance ā€” so they cannot be denied ā€” until Congress or the courts act to repeal DOMA. Each time the organization has made the call, the administration has said it would continue to enforce DOMA as long as it remains on the books.

One of the couples involved in the lawsuit, Ryan and Truman, have asked the administration to make this change. In November, Sen. Richard Blumenthal (D-Conn.) wrote the Department of Homeland Security to ask officials to place on hold the couple’s green card application.

According to The Advocate, LGBT groups met with White House officials to January to discuss the possibility of putting the green cards in abeyance. But administration officials reportedly told LGBT rights supporters such action wouldn’t be taken.Case

Tiven said Immigration Equality filed the lawsuit because the administration’s decision left the organization no other option.

“We’ve been really working … for a year now to ask them to hold the green card applications for couples who are affected by DOMA and, after a lot of back and forth, they ultimately said ‘no,'” Tiven said. “So we really were left with no choice but to sue.”

Soloway said the administration has no reason not to take action to place the green cards in abeyance to protect bi-national same-sex couples.

“It is not a legally required position, it is a political choice,” Soloway said. “If they want to protect all LGBT families, then they could craft policy that would secure married bi-national couples in the interim period.”

While the administration hasn’t taken action to hold the marriage-based green card applications in abeyance, it has said it would include bi-national same-sex couples as part of an effort to take low priority cases out of the deportation pipeline by granting them prosecutorial discretion.

The criteriaĀ for being taken out of the deportation pipeline include a personā€™s ties and contributions to the community and family relationships, and administration officials have said these criteria are inclusive of LGBT families and same-sex couples.

But Soloway said these protections for bi-national same-sex couples are insufficient because, beyond speaking to media, the administration has never explicitly said this change covers LGBT families.

“We should not be fooled,” Soloway said. “There’s no expressed protection being provided under the prosecutorial discretion policy to lesbian and gay bi-national couples. It has worked in certain cases, but it’s far from consistent and it depends on individual ICE prosecutors understanding how to apply the guidelines.”

Moreover, Tiven said none of the couples in the lawsuit have received notification they would be taken out of the deportation pipeline as a result of this initiative.

According to Immigration Equality, Blesch and Smulian have one year of deferred action for a deportation hearing, while Herbert andĀ Takako are applying for such action. Ryan and Truman as well as Morgan andĀ del Mar VerdugoĀ are able to stay together in the United States because of work visas.

“It doesn’t let them make any advance plans,” Tiven said. “In the [Morgan and del Mar Verdugo’s] case, they talked about having children, but have postponed that because they just don’t know what could happen.”

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.

The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.

When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.

The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows ā€œderisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”

The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that ā€œit is not clearly established that all drag shows are inherently expressive.”

Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on ā€œtext, history and tradition.”

Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.

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Federal Government

EXCLUSIVE: USAID LGBTQ coordinator visits Uganda

Jay Gilliam met with activists, community members from Feb. 19-27

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U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam (Photo courtesy of USAID)

U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.

Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.

Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.

Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.” 

“I really wanted to meet with community members and understand the impacts on them,” he said.

Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.” 

The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.

“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.

“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.

Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.

“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.

Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.

Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.Ā Ā 

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act ā€œfurther increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.ā€ The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act. 

Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.

Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act. 

Gilliam noted authorities have arrested and charged Ugandans under the law.Ā 

Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.

The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.

“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”

The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.” 

“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.” 

Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.

“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.

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Texas

Pornhub blocks Texas accessing site over age verification law

Court battle forced statute to take effect

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Washingtonporn Blade graphic

Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.

Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.Ā 

A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā 

ā€œApplying rational-basis review, the age-verification requirement is rationally related to the governmentā€™s legitimate interest in preventing minorsā€™ access to pornography,ā€ the three judge panel of the 5th Circuit explained. ā€œTherefore, the age-verification requirement does not violate the First Amendment.ā€

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtā€™s injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements. 

Texas users are greeted with this notice.

The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as ā€œineffective, haphazard, and dangerous.ā€ The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.

Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.

The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMVā€™s Wallet app, which contains a mobile driverā€™s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateā€™s digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driverā€™s licenses or other methods.

The Associated Press reported this past October that an adult entertainment groupā€™s lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.

Texas users are greeted with this notice.

Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.

ā€œAs you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.ā€

ā€œMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā€ the statement continues. ā€œAs weā€™ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā€

ā€œUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā€ the message ends with.

The company previously blocked Utah on May 7, 2023. CNN reported at the time:

Affected users are shown a message expressing opposition toĀ Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.

ā€œAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā€ the message said. ā€œWhile safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.ā€

Courthouse News reportedĀ that after Virginiaā€™s bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.Ā Ā 

ā€œWe passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,ā€Ā Lucas saidĀ on X, formerly Twitter. ā€œWe will continue our work to keep pornography out of the hands of minors ā€¦ but we will also work to ensure that this Governorā€™s error does not put the privacy of Virginians at further risk.ā€

Beyond the U.S. in the European Union, Pornhub and two more of the worldā€™s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUā€™s Digital Services Act.

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as ā€œvery large online platformsā€ subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EUā€™s executive branch.

They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.

In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.

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