ARSENIO IS A FILIPINO GAY rights activist residing in San Francisco. In 2004, he married his partner in a same-sex marriage ceremony during the time San Francisco Mayor Gavin Newsom allowed marriages for same-sex couples. That marriage, however, was declared null and void by the California Supreme Court on Aug. 12, 2004.

Arsenio and his partner eventually separated.

Since then, the California Supreme Court has had the chance to re-visit the issue of same-sex marriages. This month, the California Supreme Court rendered a new decision legalizing same-sex marriages. This decision will take effect on June 17, 2008.

Gay-friendly SanFo

Being a US citizen, Arsenio wants to petition a new partner, a Filipino citizen. If he will marry his Filipino citizen partner, will he be able to confer US immigration benefit by petitioning him as a spouse?

On May 15, 2008 the California Supreme Court rendered a decision legalizing same-sex marriages. Chief Justice Ronald George found that marriage is a basic civil right that applies equally to everyone, including same-sex couples. It is mentioned in the decision that just like race and gender, sexual orientation is a protected class. The circumstances are now different because the California Supreme Court has recognized the right to marry as a (1) right to privacy in marrying the person of your choice, (2) right to free speech/fundamental right to marry, and (3) equal protection.

This decision was a welcome development in San Francisco, the very gay-friendly city in North America. It is expected that by June 17, 2008, California will start solemnizing marriages for same-sex couples. Just like in 2004, it is expected that thousands will come to California, especially to San Francisco, to take advantage of this opportunity.

Limits on marriage

In California, the Constitution may be changed by an electoral process which requires submitting the constitutional amendment to the electorate for voting. This process is called an initiative.

At present, an initiative will be put on the November 2008 ballot to amend the Constitution regarding same-sex marriages. This initiative called “Limits on Marriage” amendment will try to override the Supreme Court’s decision and again ban same-sex marriages by explicitly defining marriage as between a man and a woman. If this initiative is approved by the electorate in November 2008, the Supreme Court decision may possibly be overturned and same-sex marriages could be banned again.

Immigration benefits

Prior to the Supreme Court decision, the US House of Representatives and the US Senate introduced the Uniting American Families Act (HR 2221/S.1328) on May 8, 2007, sponsored by Representative Jerrold Nadler (D-NY) and Sen. Patrick Leahy (D-VT). This bill will amend the Immigration and Nationality Act to provide same-sex partners of US citizens and lawful permanent residents access to immigration status by adding the term “permanent partners” to the statutory definition of family. This bill is still pending in US Congress.

Assuming that same-sex marriage is finally considered valid after hurdling all the legal obstacles, the United American Families Act must still be passed into law before same-sex partners are considered “spouses or immediate relative” under immigration law. Absent any change in federal immigration law, the marriage of same-sex partners will still not be entitled to immigration benefit from the US citizen or lawful permanent resident partners.

Planning for wedding

Under the California Constitution, marriage has been declared a basic civil right that cannot be withheld from same-sex couples. This ruling stands until there is a stay of this order or the initiative is approved in November 2008. Unless these two contingencies happen, the California counties especially in San Francisco will begin issuing marriage licenses on June 17, 2008.

If marriages are celebrated between June and November 2008 and the initiative is eventually approved, there will again arise legal battles to advocate for the validity of those same-sex marriages.

Meanwhile, why not solemnize those marriages? For same-sex couples who may want to take advantage of this opportunity, it is not limited to California residents. Non -residents of California may solemnize their marriages in California but the legal effect of such depends on the jurisdiction of their place of residence. Unfortunately immigration policy remains unchanged for now. No green cards yet for same sex partners.

Tancinco may be reached at law@tancinco.com or at 02-887-7177.