Challenges to Defense of Marriage Act move slowly

Gay couples frustrated by uncertainty; Court resolution could take years.

By David Crary -

CITIZENSHIP WORRIES
Edwin Blesch and his South African spouse
must leave the US six months a year under
the spouse’s tourist visa.

NEW YORK — These are frustrating, tantalizing days for many of the same-sex couples who seized the chance to marry in recent years.

The law that prohibits federal recognition of their unions is under assault in the courts. President Obama’s administration has repudiated it and taken piecemeal steps to weaken its effects.

Yet for now, the Defense of Marriage Act remains very much in force — provoking anger, impatience, and confusion among gay couples.

Because of the act, some binational couples still worry about deportation of the non-citizen spouse. Survivor benefits are not granted after one spouse dies. And couples filing joint tax returns in the states allowing same-sex marriage must still file separately this month with the IRS.

Brian Sheerin, who wed his partner six years ago in Massachusetts, said “There are times I feel like a third-class citizen.’’

When the Defense of Marriage Act was passed overwhelmingly by Congress in 1996 and signed by President Bill Clinton, it was a preemptive strike. There were no legally married same-sex couples in the United States.

Since 2004, however, thousands of gays and lesbians have married as Massachusetts, Vermont, Connecticut, New Hampshire, Iowa, and the District of Columbia legalized same-sex unions. Many others have wed in foreign countries.

“What was once theoretical now has practical effects that people can see, that can’t be explained other than as discrimination,’’ said Jon Davidson, legal director of the gay-rights group Lambda Legal. “There are people who’ve been married six years who are increasingly getting impatient.’’

The controversy around the act creates an emotional roller coaster for same-sex couples.

Last July, for example, many of them rejoiced when a federal judge in Massachusetts ruled that the act was an unconstitutional infringement on equality for same-sex couples.

There was more elation in February, when Obama ordered his administration to stop defending the law in the still-pending Massachusetts case and several other lawsuits. Yet no one knows when these cases will finally be resolved.

Last month, the US Citizenship and Immigration Services indicated that cases would be “held in abeyance’’ while broader legal issues were reviewed. Hopes soared that this would mean a halt in deportations of foreigners married to gay Americans, but within two days the federal agency said there would be no policy change.

“It’s gut-wrenching to go through the ups and downs,’’ said Doug Gentry, whose Venezuelan spouse, Alex Benshimol, faces a deportation hearing in July.

They briefly hoped the case would be put on hold — but now have been notified that an application for permanent residency for Benshimol has been denied.

The couple, who married last year in Connecticut after six years as partners, run a pet grooming business in Palm Springs, Calif.

“I don’t feel we’re different from any other family,’’ said Gentry, 53.

“I don’t want to be forced to stay with my husband by going into exile, and leaving my home, my business, and my country behind,’’ he said.

The Defense of Marriage Act also complicates life for US citizen Edwin Blesch and his South African spouse, Tim Smulian, who married in Cape Town in 2007.

Unlike some gay binational couples, in which the foreigner overstays a visa, Smulian has abided by the terms of tourist visas that limit him to six months annually in the United States. That means that to be together, the two retirees must uproot themselves from their home on Long Island and spend half the year abroad.

“It’s a great personal, financial, and medical inconvenience,’’ said Blesch, 70, who has had health problems, faces surgery this spring, and relies on the care that Smulian provides him.

For men and women whose same-sex spouse has died, the act can prevent the payment of Social Security or Veterans Administration survivor benefits that would be paid to heterosexual widows and widowers.

In California, 77-year-old Ron Wallen worries that he might be unable to afford staying in the home near Palm Springs that he and his partner of 58 years, Tom Carrollo, had shared before Carrollo’s death in March.

The two men married in June 2008, during a brief window where same-sex marriage was legal in California. But now the act prevents Wallen from receiving Carrollo’s Social Security survivor benefits, and he’s living only on his own $900-a-month Social Security check — about half of what Carrollo had been receiving.

The act’s future is uncertain. Democrats in Congress have introduced legislation to repeal it, but that effort is considered a long shot while Republicans control the House. The pending court challenges could lead eventually to a Supreme Court decision on its constitutionality — but that process, if it happens at all, could take several years.

Opponents of the law are heartened by several recent opinion polls showing, for the first time, that more than half of Americans are ready to accept legal same-sex marriage. They hope this shift will reinforce the legal arguments against the act.

  
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