DOMA: A Personal Story

Mark and Fred with their kids at the White House (photos courtesy of the author)

When she wakes up next Wednesday, Claire, 8, will have a lot more to consider than the earrings she is wearing to school. Her ears were pierced as a Christmas present: a gift, she told her dad, that she had been waiting for her whole life. The Christmas tree is still up in her home, but the presents under it have all been unwrapped, and emptied, naturally. Her three brothers, John, Jacob, and Joshua, ages six through 11, received a  small arsenal of toys that have been played with and are already causing mayhem. On the surface, everything is as it should be. But John, Claire, Jacob, and Joshua are ordinary kids under extraordinary circumstances.

On January 11th, their two dads will appear before a Philadelphia Immigration Officer for a green card interview to put forward evidence of their 22-year relationship and their marriage. The goal? To be allowed to stay together with their children in this country. For a married gay couple in which one spouse is foreign, the process of applying for permanent resident status is not so straightforward. Frederick Deloizy is a French national, and, as a foreigner who has seen both his work visa and his student visa expire, the time he has left to share with his family may now be limited.

He wed his partner Mark Himes, a U.S. citizen, in California in 2008, 18 years after they first met. They represent a growing number of same-sex couples with a partner of foreign nationality at risk of separation because immigration officials are barred from recognizing their marriage under the federal Defense of Marriage Act (DOMA). By contrast, any bi-national opposite-sex couple in their position would never face a future as uncertain. Despite the hurdles they face, the men decided that they must fight for the green card based on their marriage. To do less, would be to accept the discrimination that has put their family in such a precarious position.

The happy couple could be separated if Fred is forced to return to France since the U.S. won't recognize their marriage

But theirs is a story not only about the federal government’s lack of recognition of same-sex marriage, but the legal limbo that it creates for same-sex binational couples with children. During the two decades together, they have adopted four beautiful children. But a patchwork of incoherent legislation means that while they are recognized legally as same-sex adoptive parents in Pennsylvania, the federal govenrment refuses to recognize their marriage.

They welcomed their two oldest children, John and Claire, just days after their respective birthdays in 2000 and 2003. On their 19th anniversary in April 2009, Fred and Mark welcomed Jacob and Joshua, both four years old at the time. All four of the kids would have remained wards of the state, dependent on government coffers, shuffled from one foster home to the next, if Mark and Fred had not provided a loving, stable home. But because of DOMA, that may soon be torn apart.

Their interview comes just one week after the Iowa caucuses and the day after the New Hampshire primary in the backdrop of an election season where candidates jostling for position to become the Republican presidential nominee have fallen over each other to convince audiences that they are the most opposed to marriages of same-sex couples. And they are fully aware that Pennsylvania’s former Senator Rick Santorum is the most vitriolic. Last week, he promised that if elected he would annul all same-sex marriages. In this weekend’s debates, Santorum and his fellow Republican candidates made clear that they are equally opposed to adoption by same-sex couples. These two dads see this as an attack on their family. It’s hard to ignore the hypocrisy of this rhetoric, as it comes from individuals who are supposedly espousing the primacy of family values.

Children deserve to have a loving home and loving parents. But the four children in this loving home may see their family ripped apart, with one of their parents exiled abroad because of DOMA. The law is poorly named, because it defends no one’s marriage, but threatens to destroy this one.

In truth, laws in both the U.S. and France create signficiant challenges to this couple. While France recognizes same-sex relationships as civil unions and may allow Mark to immigrate there, France does not recognize same-sex adoption.

As they await a decision on whether 2012 will be the year their family is torn apart they have decided to take the fight to their elected officials and to the president, himself a son of a binational couple.

At best, the administrative agency could choose to do what Mark and Fred consider “the right thing” and place their case into abeyance until litigation concerning the constitutionality of DOMA makes its way to the Supreme Court. At worst, Fred may be placed into deportation proceedings, their nightmare scenario. Meanwhile, the family is in a state of limbo, and it pains them as parents when they can’t answer their children with certainty about the future. They can only prepare themselves, mentally and emotionally, to fight for full equality under the law.

Lavi Soloway is a partner in the immigration law firm of Masliah & Soloway and is the co-founder of Stop The Deportations – The DOMA Project.