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DOMA Decision: Win for the Rights of U.S. Citizens to Freely Associate with Foreigners

Gay marriage“We received a cold, brief letter from the Immigration Service notifying us that our petition had been denied. Why? Because we’re both men.” That was Brandon Melchiorre, explaining late last year his failed-attempt to get a green card for his spouse, Luke. “The denial letter from Immigration Services clearly stated in an unapologetic, discriminatory tone that we are still, in fact, second-class citizens.”

Under the Defense of Marriage Act (DOMA), gay Americans cannot sponsor their partners to enter and reside in the United States. But thanks to the Supreme Court decision in U.S. v. Windsor yesterday, that fact will change. The case involved a New York woman, Thea Spyer, who was legally married to another woman, Edith Windsor. After Spyer died, Windsor sought an exemption from the Death Tax, which would have cost her $363,000.

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote for the majority. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

But for same-sex spouses attempting to marry foreigners, this case is all about freedom of association. “This is my home. This is where I work. This is where I employ 16 Americans. This is where I pay all of my taxes,” said Nathalie Gaultheir (pictured above), an Australian-born entrepreneur engaged to a U.S. citizen, last year. "I have an expiration date… I go to bed I have a new expiration date. I’m always a guest in this country.” She adds, “I just want to have my residency. I could just lie to the government and marry a man, but I don't want to do that. I don't want to lie. I want to be honest.”

Nathalie resides currently in the U.S. on an O-1A visa, which is for people with extraordinary abilities. But it’s not equality for her or her spouse. “I have to keep renewing it and proving myself every 24 months, and it takes 6 to 9 months to do so, which costs thousands and thousands of dollars,” she said. “When I was injured and I had to have surgery, I was locked out of the country for 5 or 6 weeks.”

She is lucky that she can stay in the United States at all. Many Americans choose to live overseas due to their inability to get a visa. “My partner is Brazilian and unable to get a visa to live in the U.S.,” wrote author Glenn Greenwald in 2009, “which means our only option for living together is to live in Brazil, as that country (like many civilized Western countries, but unlike the U.S.) issues permanent visas to the same-sex partners of their citizens.”

Conservatives can certainly celebrate that Ms. Windsor will avoid the Death Tax that they have fought so much for so many years, but for many U.S. citizens, the Supreme Court decision means that America has come much closer to protecting true freedom of association—and conservatives ought to celebrate that as well.