Wednesday, August 10, 2011

A humanitarian response

I give you fair warning: this post is probably going to surprise a lot of people.

I'm sure you've seen this in the news:

Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse.

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk's application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples. [...]

The agency's decision cited the Defense of Marriage Act as the reason for the denial of an I-130 visa, or spousal petition that could allow Makk to apply for permanent U.S. residency. "The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship," the decision said. "For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman."

Now, it won't surprise anyone here to know that I agree that for the purpose of federal law a marriage only exists between a man and a woman. Whatever a handful of states have decided--or have imposed on their citizens--otherwise, the United States of America is free to define marriage as only a legal relationship between one man and one woman, as it has done. The principles of national sovereignty and of federalism are at stake, not only the definition of marriage.

But it will surprise more than a few, I imagine, when I say that I think Mr. Makk should be allowed to remain in the United States and continue to function as Mr. Wells' primary caregiver. I do not think he should be granted this permission on the grounds that he is Mr. Wells' "husband," as our national laws do not recognize same-sex spouses, whatever the state of Massachusetts may have done. But I think there are humanitarian grounds for allowing Mr. Makk to continue to take care of Mr. Wells; and as a Catholic I think that there are many opportunities for grace and forgiveness whenever someone is engaging in a work of mercy, as caring for a dying person certainly is (and I hope that spiritual care is part of the program, of course).

I am aware that it is possible that Mr. Makk and Mr. Wells sought the permission in the way that they did in their petition precisely in order to become a "test case" for the Defense of Marriage Act, that either they themselves or activists who have advised them are actively seeking to challenge DOMA by presenting their case as that of a "spouse" being unjustly denied immigration rights instead of as an appeal for a humanitarian granting of Mr. Makk's request for permanent residency. But even so, I see no reason why their petition could not be rejected on the grounds that the United States does not recognize same-sex spouses--and then granted on a solely humanitarian basis.

In fact, if this same situation involved an unmarried opposite sex couple (who could, perhaps, not be married because the woman's legal husband in another country refused to give her a divorce) I would have the same opinion: there is no reason to demand that the United States rewrite its marriage laws to allow bigamy or polygamy in order for the woman in my hypothetical situation to remain as the primary caregiver of her dying male partner. A humanitarian response would be more than sufficient, more than reasonable, and more than just.

I am not naive enough not to realize that whatever Mr. Wells and Mr. Makk intended, their case will probably be pushed into the public eye as a kind of "proof" that our marriage laws are somehow unjust and that DOMA ought to be overturned. But I point back to my hypothetical opposite sex couple: is it unjust for the US to fail to recognize bigamy or polygamy? Some countries, indeed, do allow polygamy--must the United States recognize polygamy in its marriage and immigration laws, and permit the migration of a man and his five wives, for instance, to avoid being "unjust" to those people in the world who recognize and accept polygamy?

Clearly, the answer is no. And just as clearly, at least to me, it ought to be possible to find grounds for Mr. Makk to remain in this country (if it is indeed true that Mr. Wells would lose his health insurance if they migrated instead to Mr. Makk's country of origin, Australia) that do not depend on a "marital" status which the State of Massachusetts may recognize, but the federal laws of the United States of America do not recognize.


Amanda Borenstadt said...

If you allow the man to stay as a primary caregiver, you'd set a precedence, paving the way for other illegals to be granted citizenship on the grounds that they're taking care of sick or elderly people. It would be quite easy for most people to do that, especially because the test case wasn't between family members.

I'm not saying it shouldn't be done, but we should think what the consequences will be.

Kimberly Margosein said...

Ms Manning, I take my hat off to you today. However, Ms Borenstadt is correct. Bad cases make bad law. This could go sour in a number of ways.

Siarlys Jenkins said...

As to the individual facts, I think almost anyone would agree on the humanitarian grounds - although the caretaker might then be eligible for deportation once the patient died.

I suspect that as far as the "marriage" claim goes, the Obama administration's hands are tied by current law. Whatever he may think personally, he was elected president of the United States, not King of the World. A lot of people who have turned sour on him don't understand the difference. However, the administration could be a bit more imaginative, as Erin has exemplified.

If the precedent set were that the immigration authorities may exercise discretion to permit a caregiver of a person with a debilitating or ultimately fatal disease to remain in the country legally, for so long as the patient shall live, particularly if the caregiver relationship is of one year or more standing, it won't have terribly broad implications.

But I would go a step farther. This case does exemplify why simple legal arrangements should be made, without prejudice to what constitutes a marriage, for domestic parties, whatever the gender combination, to grant each other visitation rights, durable power of attorney, etc., and for these to be binding on all non-parties to the agreement -- purely on humanitarian grounds of course.

Kimberly Margosein said...

Wonder how Ann Coulter will weigh in on this. (S)he just came out.

Anonymous said...

Read the articles, not just the headlines. She joined the advisory board of a conservative Republican homosexual activist group. Not the same as "coming out".

Anonymous said...

While it would be nice to get to stay in the country on "humanitarian" grounds, it's ironic that a couple that have been together for 19 years are being treated like a nurse and patient instead of a loving couple who are committed to each other and who have stayed together longer than many opposite-sex couples.

Siarlys Jenkins said...

Anonymous raises the ultimate conundrum. Why not acknowledge this loving couple who are committed to each other? The reason cannot be "because they encourage promiscuity and spread STD's -- a monogamous homosexual couple is no more guilty of that than a faithful heterosexual married couple. So, it comes down to "because God doesn't approve of homosexual connections."

I can sympathize with the latter view point, up to a point. I insist that any church which believes that has a right to teach it, in public. I oppose mass indoctrination in public schools that "homosexuality is OK." Public schools don't teach that drinking alcohol is, or is not, OK, that eating shell fish is, or is not, OK, etc.

But as a matter of civil law, I don't see any reason that same sex couples should not be able to establish a legally binding tie, similar to marriage, whether or not it is called marriage. On the other hand, it is not a constitutional right. It is not "similarly situated" to a heterosexual union. It is pretty obvious that sexuality originated for heterosexual reasons, and homosexuality is a side show, or if you will, statistically speaking, a deviation from the norm.

Deirdre Mundy said...

Hey Erin, OT but---given that you governor is about to jump into the presidential race, can you blog about your thoughts on him? Just curious.....