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Gays Can Get Married, Thanks to SCOTUS. How About Refugees?

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By Casey C. Sullivan, Esq. on October 26, 2016 6:57 AM

Last year, the Supreme Court ruled that same-sex couples had a fundamental right to marry. So far, the impact of that ruling, Obergefell v. Hodges, has largely been confined to similar issues. (A quick review: Does Obergefell mean that state same-sex marriage bans are invalid? Yes, of course. Even Puerto Rico's? Yes. Does it require states to issue same-sex marriage licenses? Yes. Even if you're Kim Davis? Yes. Even if you're in Alabama? Yes. Really? Yes.)

But now a new lawsuit is turning to Obergefell to strike down marriage license paperwork requirements in Louisiana. These requirements are seen by marriage equality advocates as unconstitutionally burdening the marriage rights of immigrants and refugees, be they gay, straight, or other.

Papers, Please

The lawsuit, which was recently covered by Slate's Mark Joseph Stern, takes aim at Louisiana's relatively new requirements for obtaining a marriage license. Under Act 436, applicants for marriage licenses in Louisiana must provide a certified birth certificate. The requirement can be waived, but only for individuals born in the U.S.

That seems innocuous enough, right? But for some, it means they can never get a marriage license in Louisiana. Take, for example, Victor Anh Vo, the plaintiff in the lawsuit challenging Act 436. Vo was born in an Indonesian refugee camp after his parents fled Vietnam. He was never issued a birth certificate.

When he and his fiancé sought to get married this year, the Louisiana parish clerk refused to give him a marriage license. Despite having lived in the state since he was three, despite being a U.S. citizen, Vo's lack of a birth certificate effectively barred him from marriage in the state.

So why require birth certificates in the first place? As Stern writes:

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.

Obergefell to the Rescue?

Vo's complaint opens with a long quote from Justice Kennedy's opinion in Obergefell, beginning with the proposition that "No union is more profound than marriage." Those excluded from such an institution simply "ask for equal dignity in the eyes of the law," Kennedy writes. "The Constitution grants them that right."

The complaint alleges that Louisiana's requirements violate Vo's equal protection rights and "serve no, and are not narrowly tailored to address, any compelling government interest."

Of course, Obergefell didn't establish marriage as a fundamental right, it simply extended that right to same-sex couples. Vo's lawyers are hoping that logic can be used to protect the marriage rights of immigrants, as well. "Obergefell didn't explicitly extend to immigration," Alvaro Huerta, an attorney at the National Immigration Law Center, told Stern.

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.

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