|Humans without human Rights! Louisiana|
When Victor Anh Vo went with his fiancée to obtain a marriage license, he instead received a nasty shock: The couple was legally barred from getting married. Both Vo and his fiancée are American citizens of legal age—but Vo was born in a refugee camp and has no official birth certificate. As a parish clerk informed the devastated couple, that disqualifies him from obtaining a license, because Louisiana law forbids anyone without a birth certificate from marrying within the state.
This requirement is no ancient rule. It was enacted just last year during a fit of legislative xenophobia driven by paranoia that immigrants were committing marriage fraud in Louisiana. Now a coalition of attorneys from the National Immigration Law Center, the New Orleans Workers’ Center for Racial Justice, and the law firm Skadden, Arps is challenging the measure in court. Their fight to overturn the law is the first big marriage equality battle post-Obergefell, and it poses a nearly identical question: Can states deny individuals their fundamental right to marry because they don’t think certain people deserve to get married?
On the surface, the Lousiana law, dubbed Act 436, might not appear especially insidious. The bill simply adds documentary requirements to the marriage licensing process. Applicants must now provide a Social Security number and a birth certificate before receiving a license. If they don’t have a Social Security number, then they must present a birth certificate and a passport. If they don’t have a passport, they need official documentation showing that they are in the United States legally—in addition to a birth certificate. (A previous statute allowed an individual with no birth certificate to prove his or her identity before a judge, but that judicial bypass procedure is now gone.) The upshot of these requirements is that someone like Vo, who was born in a refugee camp in Indonesia after his parents fled Vietnam, cannot ever get married in Louisiana.
Why did the Louisiana legislature add these extensive new requirements, which then–Gov. Bobby Jindal happily signed into law? Rep. Valarie Hodges, Act 436’s sponsor, initially asserted that the bill was necessary to “combat marriage fraud” broadly. But after the bill passed, Hodges acknowledged that its true purpose was to combat immigration fraud, stating that her measure was necessary to prevent immigrants from marrying citizens solely to get lawful permanent resident status. Immigrant marriage fraud, however, is not known to be a particular problem in Louisiana—and federal law explicitly grants the federal government, not the states, the power to combat it.
I asked Alvaro Huerta, an attorney at the National Immigration Law Center, what he thought the bill’s true purpose was.
“Act 436’s intention isn’t really combatting marriage fraud writ large,” Huerta told me. “The bill is trying to get at immigrants—and, in particular, making it very difficult for undocumented immigrants to obtain marriage licenses.”
Audrey Stewart, the managing director at the New Orleans Center for Racial Justice, agreed. “This law is not about marriage fraud,” she told me. “It is an attack on immigrant families and communities. And it’s rooted in anti-immigrant sentiment.”
But Act 436’s challengers don’t even need to prove the bill’s insidious intent in court: It is, by its own terms, almost certainly unconstitutional under Obergefell. In that decision, the court reiterated that marriage is a fundamental right, a critical component of the “liberty” protected by the Constitution, and held that states may not deny marriage rights based on some arbitrary distinction. Nationality or immigration status is surely as arbitrary a distinction as gender—so a law that restricts marriage rights on those bases is just as invalid as a law that restricts marriage rights on the basis of sexual orientation. That’s why the suit against Act 436 opens with the stirring peroration from Obergefell, an encomium to marriage proclaiming that all loving couples deserve “equal dignity in the eyes of the law.”
“Obergefell didn’t explicitly extend to immigration,” Huerta told me, “but the argument is there. It’s spot-on precedent for this case. Louisiana can’t pass laws that infringe on that right to marry unless they have a very compelling state reason. And we can’t think of any compelling reasons for wanting to keep some people, particularly immigrants, from getting married to the people that they love—or preventing the people who love immigrants from marrying them”
Without the certificate, how can we be sure they were actually born?
Huerta noted that even if the suit doesn’t prevail under Obergefell, Act 436 is still a straightforward violation of the Equal Protection Clause (which generally prohibits discrimination on the basis of national origin). But Obergefell is the headlining precedent here, and the all-stars of the marriage equality movement have already lined up to support the suit. Indeed, the National Center for Lesbian Rights has already signaled its eagerness to contribute to the litigation in any way it can. I asked the group’s legal director, Shannon Price Minter, why the group was jumping into this battle. He provided me with the remarks he delivered to the National Immigration Law Center in throwing his organization’s support behind the suit:
Speaking on behalf of the LGBT community, whose fundamental freedom to marry was only recently recognized in this country, just last year by the U.S. Supreme Court, we are appalled by Louisiana’s blatant attempt to deny the fundamental right to marry to immigrants, which of course includes many LGBT people who have come to this country from other places and who are now living in Louisiana.
As LGBT people know from recent experience, the purpose and impact of such laws are so invidious and harmful—and especially so here, when the discrimination is targeted at a class of people, immigrants, who have already experienced so much discrimination and abuse and who are under attack in such a vicious way by one of our presidential candidates.
Laws such as these are intended to—and do—send a clear message that immigrants are not entitled to equal dignity and respect, and that their relationships are not worthy of the same protections as other. They have a devastating practical impact as well, as same-sex couples experienced for so many years, in denying couples the ability to protect their relationships and their families.
The connection Minter draws between this litigation and same-sex marriage is potent and depressingly topical. This election season has featured relatively little conversation about gay people’s rights—and extensive debate about the rights of immigrants. Much like George W. Bush campaigned on homophobia in 2004, Donald Trump has rooted his campaign in vicious xenophobia, promoting legalized discrimination against immigrants and making many feel unwelcome in the United States. For LGBTQ advocates, the parallels to their own recent history are impossible to ignore. And Louisiana will soon discover that after Obergefell, the constitutional guarantee of “equal dignity” for all cannot be so easily abridged.