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VI. Law, Relationships, Families

Wendy and Belinda’s Story (Part Three)

Who belongs?

A recent experience, Belinda realizes, has led her to reflect deeply on the meaning of belonging—and take a step toward political action.  In February 2004, when San Francisco’s mayor offered marriage licenses to same-sex couples, she and Wendy wed.

It was amazing. I think I didn’t realize how oppressed I’d been until after I got married—on so many different levels it was a validation of who I was and who I loved; it was so much more than I ever expected it to be…. You think it’s just going down to an office and you have the registrar just say these words, but it was so phenomenal, it had so much meaning and depth that I never thought it would. Everyone said, the courts are going to stop it—but you thought at the same time, This will lead to something, something will change—it was just an incredible time.  We thought, we’re recognized at last!—and we were in line with two women who had driven up from Los Angeles with their little babies, who had been together for fourteen years.

Wendy continues,

We witnessed for them and they witnessed for us, and the four of us were just a giddy wreck after.  I think really truly deep inside of me I was not prepared for the idea of being married. Even though I thought in every way I was already married, the reality, the power of having it seen and recognized in that way—it was just overwhelming. 

The interesting thing was—for a lot of binational couples, they could not have made that choice: it would have been dangerous for them to be so open about their love. We walked down the lines afterward, looking for people who were binational couples and making sure they understood the implications of what they were doing.  We were talking to the activists who were there, telling them to be on the lookout for binational couples. 

The next day, Belinda called her lawyer.  “I asked her about the consequences for me.  She said, ‘You have an H1B, that allows you an intent to stay in the country.’  And marriage is an intent to stay. But this could cause problems if, for instance, I decided to go back to school, and a student visa doesn’t allow you intent to stay.  Especially because our picture, our story, has been very much out there.”

Wendy remembers when they started to go public with their situation, and began campaigning for the UAFA.

Belinda started going to Immigration Equality meetings. It was an outlet for her fear over possibly leaving—someplace to put it.  She got more and more involved, mostly because …she wanted to see more action. …  And I found out!  And I said, I think we should have a conversation about this!  How much jeopardy are we putting ourselves in?  … We decided we were relatively safe because of the nature of her visa—and we also realized how important it was to get a voice out there. It is safer for us than for others who just can never step in front of a camera or talk to a reporter.

Belinda adds: “If we don’t stand up and get our voices out there, then no one is ever going to hear us.  But it is easier for us because we feel we are speaking for them—all those thousands and thousands of stories.”

“I will tell you an amazing thing,” Wendy says. 

We were involved in this thing called the Marriage Caravan that went across the country, campaigning for marriage equality.  And everywhere we met binational couples. In Ohio, in Pennsylvania, in Iowa—we met someone who was in a couple and the partner was abroad, people who were leaving the country— there is no way to track how many couples are in this situation and what is happening to them. I think we expected there would be these couples like us on the coasts, but they are everywhere.

And I am so angry. I am an American. I am guaranteed the right to life, liberty, the pursuit of happiness. … I was taught all my life that I could be anybody, I could solve any problem.  And what I’ve had to come to grips with is that no matter how hard I work, no matter how creatively I search for a solution—there is none. And my government, which is supposed to look out for me, doesn’t give a damn about it.  Or about the effect on my family, my community, my life. 

It isn’t just about immigration.  It’s about my right to live my life fully, to be with the partner I choose, who just happens to be from another country. And people do that every day and bring their partners over here. And I can’t: because of bigotry and prejudice. … Hold me to whatever standards you want to; make me prove this relationship.  I will.  I will go through all the same things that any heterosexual trying to bring their spouse into the country goes through. But I’m not even allowed that opportunity.

Belinda says, “There’s so many good things about this country. And yet it contradicts itself so much.”

In the U.K., they are changing marriage laws so that we can have a civil partnership that is virtually marriage but called by a different name. … It’s something that’s so simple to sort out. Just giving basic rights to couples.  For the far right, it seems to be a big deal—but the reality is, it wouldn’t affect them at all. 

Wendy adds:

It’s not going to encourage a flood of couples coming into the country.  They’re already here!  Just let them be legal; let them live sane lives without fear.   Belinda has been paying taxes almost eight years—they are happy to take her money, just not her.

How can we make a difference? How can we reach the hearts and minds of people who can just change the law? What do they need to actually start seeing us as people instead of problems?

“It’s an American issue,” Belinda says.

Wendy answers: “It’s an American civil rights issue.” 198

Legal Protections against Unequal Treatment

Non-discrimination means, in essence: everyone belongs; everyone is entitled to the same rights protections.  It takes constitutional form in the fourteenth amendment—which guarantees the “equal protection of the laws” to all people in the U.S.’s jurisdiction.199 The Supreme Court employed it in the landmark case of Romer v Evans to overturn a Colorado law that voided any protections against discrimination based on sexual orientation.  The majority held:

Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. … A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’” … We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause.200

The case of Lawrence v Texas (invalidating laws against consensual homosexual conduct) was decided on grounds of “the liberty protected by the fourteenth amendment,” rather than equal protection per se.  However, the majority held that “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects,” observing that sodomy laws are “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”201

International law recognizes the rights of nations to define their immigration policies.  It is nonetheless inconsistent with human rights principles for a state to frame its immigration policies in a way that denies human rights on a basis of proscribed discrimination.   When a government allows such discrimination to destroy its own citizens’ right to a family life, separating partners at national borders on account of their sexual orientation and HIV status, it strikes intolerably at the idea of equality.  The European Court of Human Rights in 1985 held that discrimination against immigrant spouses on the basis of sex was a violation of the right to family life; the European Court also recognizes sexual orientation as an unacceptable basis of discrimination.202

The U.N. Human Rights Committee—the authoritative body responsible for interpreting the International Covenant on Civil and Political Rights (ICCPR) and monitoring states’ compliance with their Covenant obligations—notes that according to the ICCPR, while a State has the authority to expel aliens from its territory in accordance with domestic law, the State must apply the law in accordance with “such requirements under the Covenant as equality before the law (art. 26).”  Furthermore, the Committee notes that “in certain circumstances, an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.”203

With specific bearing on the U.S. ban on entry of persons who are HIV-positive, the U.N. Commission on Human Rights, until this year the central U.N. body charged with monitoring rights violations and interpreting standards, has made clear that HIV status is categorically protected from discrimination under international human rights law. In a 1995 resolution, the Commission held “that discrimination on the basis of AIDS or HIV status, actual or presumed, is prohibited by existing international human rights standards, and that the term ‘or other status’ in non-discrimination provisions in international human rights texts can be interpreted to cover health status, including HIV/AIDS.”204  

International human rights law also upholds the principle of non-discrimination based on sexual orientation.  The U.S. is bound by its treaty commitments.  It ratified the ICCPR in 1992.  In 1994, in the case of Toonen v Australia, the U.N. Human Rights Committee held that “sexual orientation” was a status protected under the ICCPR’s equality clauses from discrimination.  Specifically, it held that “the reference to ‘sex’ in articles 2, para. 1 and article 26 is to be taken as including sexual orientation.”205 Article 2, the first equality provision of the ICCPR, affirms:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind …

Article 26 states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Human Rights Committee amplified this finding specifically with regard to discrimination against same-sex couples in Young v Australia in 2003, dealing with denial of pension rights to a surviving same-sex partner.  “In the instant case,” the Committee held, “it is clear that the [plaintiff], as a same sex partner, did not have the possibility of entering into marriage.”  Yet this fact could not justify denying him equal treatment: “No evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying … a pensionon the basis of his sex orsexual orientation.”206

The European Court of Human Rights has set similar precedents against discrimination.  In two 2003 cases, L. and V. v Austria and S.L. v Austria, the Court held that a differing age of consent for heterosexual and homosexual relations violated protections against discrimination in article 14 of the European Convention on Human Rights, saying that the law “embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” which could not “amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour.”207  It also applied the principle to same-sex partnerships in the 2003 case of Karner v Austria.Austria’s highest court had denied a gay man the right to continue occupying his deceased partner’s flat, asserting this right, enjoyed by family members under Austrian law, did not apply to same-sex partners. The European Court held that this ruling violated anti-discrimination protections in article 14 of the European Convention. Although the government claimed that excluding homosexuals aimed to protect “the family in the traditional sense,” the Court held Austria could not demonstrate how the exclusion furthered that aim.208

The European Court has also condemned discrimination based on gender identity. In the 2003 case of Van Kuck v Germany (involving the right to non-discriminatory insurance coverage of sex reassignment surgery),it affirmed “the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination.”  It declared that “the very essence” of the European Convention on Human Rights “being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security.”209 In two important 2002 cases, Goodwin v United Kingdom and I. v United Kingdom, the court heard complaints by two transsexual women against Britain’s refusal to change their legal identities and papers to match their (post-operative) genders. Offering a major victory for transgender people’s rights, the Court required changes in their identity papers, holding their right to respect for their private lives—and also their right to marry—had been violated.210

Other European institutions have also opposed discrimination based on sexual orientation.  In 1997, the European Union’s founding document, the Treaty of Amsterdam, empowered the Union to “take appropriate action to combat discrimination based on sex, racial, or ethnic origin, religion or belief, disability, age or sexual orientation.”211  It was the first mention of sexual orientation in a major international treaty.  In 2000, the European Union Charter of Fundamental Rights also prohibited discrimination based on sexual orientation. 

The European Parliament has repeatedly condemned discrimination based on sexual orientation. In 1993, its report “On Equal Treatment of Lesbians and Gay Men in the EC” criticized the status of binational same-sex partners within the Union. 

A striking example of a restriction of the freedom of movement caused by differences between member states is the case of a male civil servant of the European Parliament of Belgian nationality who was transferred from Brussels to Paris. His male partner (third country resident) who had limited residential rights in Belgium did not obtain such rights at all in France. As a consequence of this, the relationship became under heavy strains and was ended.212

The Parliament has repeatedly urged an end to discrimination against same-sex partnerships in freedom of movement—most recently in a sweeping resolution “On Homophobia in Europe,” passed on January 19, 2006, which “reiterates its request that the Commission put forward proposals guaranteeing freedom of movement for Union citizens and their family members and registered partners of either gender.”213

The Parliamentary Assembly of the Council of Europe—a broader association of states than the European Union—has also condemned discrimination against same-sex binational couples.  In a 2000 resolution on the “Situation of gays and lesbians and their partners in respect of asylum and immigration in the member states of the Council of Europe,” the Assembly noted that it

is aware that the failure of most member states to provide residence rights to the foreign partner in a binational partnership is the source of considerable suffering to many lesbian and gay couples who find themselves split up and forced to live in separate countries. It considers that immigration rules applying to couples should not differentiate between homosexual and heterosexual partnerships. Consequently, proof of partnership other than a marriage certificate should be allowed as a condition of eligibility for residence rights in the case of homosexual couples.

It called on member states:

  • to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnership and families are treated on the same basis as heterosexual partnerships and families;

  • to take such measures as are necessary to ensure that binational lesbian and gay couples are accorded the same residence rights as bi-national heterosexual couples;

  • to encourage the establishment of non-governmental organisations to help homosexual refugees, migrants and binational couples to defend their rights;

  • to co-operate more closely with UNHCR and national non-governmental organisations, promote the networking of their activities, and urge them to systematically monitor the observance of the immigration and asylum rights of gays and lesbians;

  • to ensure that the training of immigration officers who come into contact with asylum seekers and binational same-sex couples includes attention to the specific situation of homosexuals and their partners. 214

The United States can also draw lessons from other countries—both near and far—which have taken stands against inequality based on sexual orientation.  In the 1998 case of Vriend v Alberta, Canada’s Supreme Court held:

It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are “different” from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any … group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of Canadian society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy. … It can never be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.215

The United States can also learn from South Africa.  In 1996, emerging from the abysses of apartheid, that country became the first to enshrine sexual orientation in its constitution as a status protected from discrimination. One of the earliest decisions by South Africa’s Constitutional Court based on this provision guaranteed immigration rights for any citizen’s permanent partner, whether of the same or opposite sex. To  disregard or discount same-sex relationships for immigration purposes, the Court said, sent a message

that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected… The impact constitutes a crass, blunt, cruel and serious invasion of their dignity.

The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships.  This discrimination occurs at a deeply intimate level of human existence and relationality.  It denies to gays and lesbians that which is foundational to our Constitution … namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be.216

“The Hopes and Expectations of Humanity”: Law and the Forms of Family

Debates in the U.S. over how to recognize relationships tend to assume that “marriage” and “the family” have a single character that has not changed over time: the institutions have taken the same shape, the same people have always had a right to them.  Expanding their legaldefinition to other forms of affiliation thus seems a socialchange of tectonic importance.

Obviously, this is untrue.  Casting an eye over a world map or through the Bible is enough to show that over miles and through millennia, families take divergent configurations and have meant many things.  United States law only very recently came to recognize in heterosexual marriage a value so universally acknowledged as to be deserved by, and protected for, all.

For generations, for example, marriages between slaves had no legal effect.217  After slavery, state after state passed “miscegenation” laws barring interracial marriages.  These enforced the segregation system; surviving into the twentieth century, they become one of many weapons in the eugenicists’ arsenal—hindering the supposedly “unfit” from marrying.

Marriage also was a means of defining citizenship—and of defining certain people out.  These laws were widely used to limit immigration.  By the nineteenth century’s end, a dozen states forbade whites to marry Asians; nine specifically targeted Filipinos.  Arizona, one historian notes, “prohibited whites from marrying ‘Hindus’ and … Oregon prohibited whites from marrying Native Hawaiians, or Kanakas.”218  In 1907, Congress mandated that any U.S. woman marrying a foreigner who was ineligible (on racial or other grounds) for U.S. immigration be stripped of her own citizenship without trial.

In a large part of the U.S., then—not unlike apartheid South Africa219—a web of restrictions on marriage and relationships upheld a racially exclusive definition of national identity.  In declaring marriage “a fundamental right of free men”; in stating that “the right to marry is the right to join in marriage with the person of one's choice” (as the California Supreme Court did in overturning a “miscegenation” law in 1948),220 courts were not just confirming the legal ability to contract a partnership.  They were nailing liberatory theses to the door about the character of their country, its ability to imagine an open rather than a branded and biased future.  Likewise, other steps in this century toward ensuring justice in married relationships—eliminating child marriages, campaigning against domestic violence, guaranteeing the legal and economic rights of both partners, and protecting the rights of the child—also guarantee that family relations will not be a private, insular exception to the public values of dignity and fairness. 

A future president of the United States wrote in 1900 that “Family methods rest upon individual inequality, state methods upon individual equality.  Family order rests upon tutelage, state order upon franchise.”221  Law in the succeeding century strained to erode that invidious division, and make the family a place of choice and justice.  It is certainly true that “marriage is more than a contract,” as some conservatives complain.222 The way relationships are treated—whether furthering equality or fathering privilege—draws a line between inside and outside, valued and unvalued, on many levels.  It not only encapsulates how power is allotted between individuals and state; it embodies a vision of how society will develop.

In 1967, in Loving v Virginia, the Supreme Court finally struck down laws against interracial marriage.223 It said:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.224

This affirmed the reach of the Equal Protection Clause. It also was a step in the Court’s progress toward identifying a realm of intimate decision-making as a basic part of liberty.  In Lawrence v Texas, the Court maintained:

Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. …. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.  The liberty protected by the Constitution allows homosexual persons the right to make this choice.225

Current U.S. immigration law, bound by a restrictive concept of family relationships excluding lesbian and gay partners, denies those persons that right and that choice.  This sends a devastating message to them about their dignity and worth.  It sends the wrong message about U.S. society, and what it wants to become.

Increasingly, human rights law recognizes the need for inclusive respect toward the different ways human beings relate to one another and form families.  Many of its documents deal with marriage and family.  The Universal Declaration of Human Rights (UDHR), the foundation of the modern human rights system, says in article 16:

    1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

    2. Marriage shall be entered into only with the free and full consent of the intending spouses.

    3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The International Covenant on Civil and Political Rights(ICCPR) states in article 23:

    1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

    2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

There is no express definition of marriage as between a man and woman in these instruments.  The Constitutional Court of South Africa, in a decision opening full marriage rights to same-sex partners, observed that “The reference to ‘men and women’” is

descriptive of an assumed reality, rather than prescriptive of a normative structure for all time.  Its terms make it clear that the principal thrust of the instruments is to forbid child marriages, remove racial, religious, or nationality impediments to marriage, ensure that marriage is freely entered into and guarantee equal rights before, during, and after marriage.

The statement … that the family is the natural and fundamental group unit in society, entitled to protection by the state, has in itself no inherently definitional implications. … Nor need it by its nature be restricted intrinsically, inexorably and forever to heterosexual family units.  There is nothing in the international law instruments to suggest that the family which is the fundamental unit of society must be constituted according to any particular model.  Indeed, even if the purpose of the instruments was expressly to accord protection to a certain type of family formation, this would not have implied that all other modes of establishing families should for all time lack legal protection.

Indeed, rights by their nature will atrophy if frozen.  As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning.  The horizon of rights is as limitless as the hopes and expectations of humanity. … When the Universal Declaration was adopted, colonialism and racial discrimination were seen as natural phenomena, embodied in the laws of the so-called civilized nations, and blessed by as many religious leaders as they were denounced. ... Severe chastisement of women was tolerated by family law and international legal instruments then, but is today considered intolerable.  Similarly, though many of the values of family life have remained constant, both the family and the law relating to the family have been utterly transformed.226

Acknowledging those changes, the European Charter of Rights and Fundamental Freedoms, in its comparable article 9, omits all reference to sex, stating, “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”

International human rights mechanisms have shown respect for evolving definitions of the family.  The U.N. Human Rights Committee has noted that “the concept of the family may differ in some respects from State to State, and even from region to region within a State, and … it is therefore not possible to give the concept a standard definition.”227  The U.N. Committee on the Rights of the Child states: “When considering the family environment, the Convention [on the Rights of the Child] reflects different family structures arising from various cultural patterns and emerging family relationships.”228

The UN High Commission for Refugees has recommended, in the context of refugee protection, that right to family unification include same-sex partners. 

In UNHCR’s view, States should adopt a pragmatic interpretation of the family. … Families should be understood to include spouses; those in customary marriage; long-term cohabitants, including same-sex couples; and minor children until at least age eighteen.229

According to the UN Special Rapporteur on Violence Against Women, strict prescriptions of what families should be not only proscribe diversity but repress reality.

Throughout the world, there exist divisions between the dominant, normative ideal of the family and the empirical realities of family forms. Whether the ideal is the nuclear family or a variation of the joint or extended family, such ideals in many cases are not wholly consistent with the realities of modern family forms …

Despite such differences, however, the culturally-specific, ideologically dominant family form in any given society shapes both the norm and that which is defined as existing outside of the norm and, hence, classified as deviant. Thus, the dominant family structure--whether it is dominant in fact or merely in theory--serves as a basis against which relationships are judged. Further, it serves as the standard against which individual women are judged and, in many cases, demonized for failing to ascribe to moral and legal dictates with respect to family and sexuality … Such demonization fuels and legitimates violence against women in the form of sexual harassment, rape, domestic violence, female genital mutilation, forced marriages, honour killings and other forms of femicide.230

The European Parliament has again and again urged inclusive understandings of family forms.  In a human rights resolution in 2000, it

  • Call[ed] on the Member States to guarantee one-parent families, unmarried couples and same-sex couples rights equal to those enjoyed by traditional couples and families, particularly as regards tax law, pecuniary rights and social rights;
  • Note[d] with satisfaction that, in a large number of Member States, there is growing legal recognition for extramarital cohabitation, irrespective of gender; call[ed] on the Member States that have not yet done so to amend their legislation in order to recognise registered same-sex partnerships and guarantee they enjoy the same rights and obligations as exist for different-sex couples; call[ed] on the Member States in which such legal recognition does not yet exist to amend their laws to recognise legally extramarital cohabitation irrespective of gender; consider[ed] therefore that rapid progress should be made in achieving mutual recognition of the different legal forms of cohabitation in the EU as well as legal marriage between persons of the same sex. 231

More recently, in 2003, the Parliament recommended “that the Member States more generally recognise non-marital relationships, both heterosexual and homosexual, and confer the same rights on partners in these relationships as on those who are married, inter alia by taking the necessary steps to enable couples to exercise freedom of movement within the Union.”232

For some families, the form they want recognition to take is very clear.  Anji told us,

If we were able to marry federally in the U.S., we would gain the more than one thousand rights that come with marriage.233  Rights that would give us a choice about how our family thrives and survives—Social Security, tax benefits, to adopt children if we chose.  So many of the benefits that married heterosexual couples take for granted.  It would make our life easier.  It would give us peace of mind that we are protected and are protecting each other.  It would give us a level of equality that anyone who feels disenfranchised craves in their soul.234 

Not every binational same-sex couple, though, wants to marry.  Most want the simple dignity of being allowed to be together, however that might be done or defined.  The discrimination separating them is severe; a remedy is urgent.  The Uniting American Families Act (described in detail in Appendix A) offers such a response.  Its effects end after crossing customs. It will not answer the craving for equality such couples will experience once in the U.S., staring down possible injustices in hiring, in job benefits, in health care, in housing.  It will, though, be a step—toward taking the blinders off, toward seeing the diversity of ways humans can relate to each other, and their common need for protection by the law.

People we interviewed for this report repeated that not just couples’ lives but a community’s values stood at a crossroads.  Ben, reflecting on his forced separation from his partner, told us: “This country is going in the wrong direction, and gays are like the canaries in the mine.  The ability of the culture to accept, to embrace a group like gays is a bellwether of their ability to accept change and difference in other areas as well.” 

His German partner, Kurt, who had lived in the U.S. for six years, added, “I still love the people.  I still love the place.  But I feel disenchanted. This government has this idea of being on a crusade against this minority group.  For me, when I think of America, it’s like being an abandoned child.”235

The South African Constitutional Court has eloquently limned how defining family defines a society:

What is at stake… is how to respond to legal arrangements of great social significance under which same-sex couples are made to feel like outsiders who do not fully belong in the universe of equals. …

A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are.   To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality.  Equality means equal concern and respect across difference.  It does not presuppose the elimination or suppression of difference.  Respect for human rights requires the affirmation of self, not the denial of self.  Equality therefore does not imply a leveling or homogenization of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference.  At the very least, it affirms that difference should not be the basis for exclusion, marginalization, and stigma. At best, it celebrates the vitality that difference brings to any society. … The acknowledgement and acceptance of difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin colour has been the express basis of advantage and disadvantage.  South Africans come in all shapes and sizes.  The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognizing and accepting people with all their differences, as they are… Accordingly, what is at stake is not simply a question of removing an injustice experienced by a particular section of the community.  At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect.236

Liz, with her Jamaican partner Carly, put that in simpler but more heartfelt words when she wrote to us:

We are in love.  This country needs more love. Why my country fights so hard to interfere with my right to pursue happiness and live in peace and harmony with all is beyond me. It saddens me deeply. Recognizing our relationships would only strengthen our nation.237

[198] Human Rights Watch/Immigration Equality interview with Wendy Daw and Belinda Ryan, Fremont, California, January 31, 2005.

[199] Technically the Equal Protection Clause directly applies only to states and not the Federal government.  However, discrimination at the Federal level has been held similarly to violate the due process clause in the fifth amendment.

[200] Romer v Evans, Supreme Court of the United States, 517 U.S. 620 (1996).

[201] Lawrence and Garner v Texas, Supreme Court of the United States, 539 U.S. (2003).

[202] Abulaziz, Cabales and Balkandali v United Kingdom, European Court of Human Rights 471 (May 28, 1985).

[203] Human Rights Committee, General Comment 15, The Rights of Aliens Under the International Covenant on Civil and Political Rights, HRI/GEN/1/Rev.7, para. 9 and para. 5, online at 

[204]  U.N. Commission on Human Rights, “The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS),” resolution 995/44, E/CN.4/1995/176. 

[205]Nicholas Toonen v Australia, U.N. Human Rights Committee, CCPR/C/50/D/488/1992, at 8.7.

[206] Young v Australia, U.N. Human Rights Committee,CCPR/C/78/D/941/2000, at 10.4.

[207] L. and V. v Austria, 39392/98;39829/98, European Court of Human Rights 20 (January 9, 2003),

 at 52.

[208] Karner v Austria, 40016/98, European Court of Human Rights 395 (July 24, 2003).

[209] Van Kuck v Germany, 35968/97, European Court of Human Rights 285 (June 12, 2003), at 69.

[210] Goodwin v United Kingdom, 28957/95, European Court of Human Rights 18 (July 11, 2002), and I. v United Kingdom, 25680/94, European Court of Human Rights (July 11, 2002).

[211] Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts (E.U. Official Journal C 340, November 10, 1997), article 13.

[212] “On Equal Treatment of Lesbians and Gay Men in the EC,” Report by MEP

Claudia Roth on behalf of the Committee on Civil Liberties and Internal Affairs, European Parliament.

[213] European Parliament Resolution, January 18, 2006, P6_TA-PROV(2006)0018, “Homophobia in Europe.”

[214] Parliamentary Assembly of the Council of Europe, Recommendation 1470 (2000), “Situation of gays and lesbians and their partners in respect of asylum and immigration in the member states of the Council of Europe.”

[215] Vriend v. Alberta, Supreme Court of Canada,File No. 25285, at 69.

[216] National Coalition for Gay and Lesbian Equality and others v Ministry of Home Affairs and Others, Constitutional Court of South Africa, CCT 10/99, at 54 and 42.

[217] “It is clear that slaves have no legal capacity to assent to any contract. With the consent of their master they may marry, and their moral power to agree to such a contract or connection cannot be doubted; but while in a state of slavery it cannot produce any civil effect, because slaves are deprived of all civil rights. Emancipation gives to the slave his civil rights, and a contract of marriage, legal and valid by the consent of the master, and moral assent of the slave, from the moment of freedom, although dormant during slavery, produces all the effects which result from such contract among free persons.” (Opinion of Judge Matthews, case of Girod v Lewis, May term, 1819; Martin's Louisiana Reports,  vol. 6, p. 559.)

[218] Peggy Pascoe, “Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation,” History News Network, at (retrieved December 14, 2005).

[219] Among the first steps in establishing apartheid in South Africa were banning interracial marriages (in 1949) and all interracial sex (in 1950).  This paralleled similar moves in building a racial regime in Nazi Germany in the 1930s.

[220] Perez v. Sharp, Supreme Court of California, 32 Cal.2d 711, 198 P.2d 17 (1948).

[221] Woodrow Wilson, The State: Elements of Historical and Practical Politics (Boston: Heath & Co., 1900), p. 638.

[222] David Coolidge, “What is Marriage?” Crisis Magazine, July 15, 1996.

[223] The statute in question, Virginia's Racial Integrity Act of 1924, outlawing intermarriage, was itself illustrative.  Virginia had been a hotbed of eugenicist pseudoscience and practice; Madison Grant, the Jeremiah of “mongrelization” (see chapter II) was consulted as the law was drawn up.  The bill, requiring racial registration certificates, was clearly meant to promote racial classification across the whole population. (This also corresponded to national trends: in 1920, the U.S. Census eliminated the category of “mixed race” for the first time in seven decades, forcing people to class themselves as either “black” or “white.”) The act defined a “white person” as one who “has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons."  The latter exception was added because sixteen members of the Virginia legislature, who proudly claimed partial descent from Pocohontas, feared being legally leached of their whiteness by a more constricting definition. See Paul Lombardo, "Miscegenation, Eugenics and Racism: Historical Footnotes to Loving v. Virginia," University of California Davis Law Review, vol. 21 (1988), pp. 421-452.

[224] Loving v. Virginia, Supreme Court of the United States, 388 US 1 (1967).

[225] Lawrence and Garner v Texas, Supreme Court of the United States, 539 US (2003).

[226] Minister of Home Affairs and Others v Fourie and Bonthuys and Others, Constitutional Court of South Africa, CCT 10/05, at 100-102.

[227] “General Comment 19: Protection of the family, the right to marriage and equality of the spouses,” U.N. Human Rights Committee, HRI/GEN/1/Rev.2, at 2.

[228] “Report on the Fifth Session,” Committee on the Rights of the Child, UN Doc. CREC/C/24, Annex V.

[229] Erika Feller, Volker Türk and Frances Nicholson, “Refugee Protection In International Law: UNHCR’s Global Consultations On International Protection,” United Nations High Commissioner for Refugees, 2003, p. 584.

[230]  U.N. Commission on Human Rights, “Report of the Special Rapporteur on violence against women, its
causes and consequences,” E/CN.4/1999/68, March 10, 1999, at 8-9.

[231] European Parliament Resolution A5-0050/2000, “Resolution on respect for human rights in the European Union (1998-1999)” (March 16, 2000).

[232] European Parliament Resolution A5-0281/2003, “Resolution on the situation as regards fundamental rights in the European Union (2002)” (September 4, 2003), emphasis added.

[233] In a 1997 study requested by Republican member of Congress Henry Hyde, the General Accounting Office identified 1049 federal laws in which marital status was a factor creating differential treatment: see “GAO/OGC-97-16 Defense of Marriage Act” at (retrieved November 12, 2005).

[234] Human Rights Watch/Immigration Equality telephone interview with Anji (last names withheld at their request), October 6, 2005.

[235] Human Rights Watch interview with Ben and Kurt (names changed at their request), San Francisco, January 30, 2005.

[236] Minister of Home Affairs and Others v Fourie and Bonthuys and Others, Constitutional Court of South Africa, CCT 10/05, at 61 and 60.

[237] E-mail to Immigration Equality from Liz (names changed at her request), October 18, 2003.

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