BY STEVE ROTHAUS, srothaus@MiamiHerald.com
An upcoming Supreme Court decision on whether a woman must pay inheritance tax on her late wife’s estate could also determine whether Coral Gables newlyweds Daniel Zavala and Yohandel Ruiz get to stay together in the United States.
Zavala and Ruiz, along with thousands of other gay and lesbian binational couples, face separation because of the 1996 Defense of Marriage Act, which prohibits the federal government from recognizing legally married same-sex spouses.
“I should not have to leave the country to be with the person I love,” said Cuban-born Ruiz, an American citizen who grew up in Hialeah. “I should be able to sponsor my husband, Daniel, to stay in the country.”
Zavala, now 27, visited Miami from Mexico about two years ago on a tourist visa. He met Ruiz, now 37, one night in Score nightclub on Lincoln Road in South Beach. He commuted between both countries during their courtship. The men wed in Washington, D.C., on May 1, 2012. Two days later, Zavala’s tourist visa expired.
“We didn’t want to break any laws so we decided to get married,” Ruiz said. “I petitioned for Daniel, like any normal spouse would do. We were denied.”
In November, Ruiz received a letter from the U.S. Citizen and Immigration Services.
“Both you and the beneficiary are male,” an Immigration officer wrote to Ruiz, after he petitioned to sponsor Zavala. “The [U.S. Immigration and Nationality Act] does not specifically define the term ‘spouse’ with respect to gender, but Section 3 of the Defense of Marriage Act (DOMA) states for purposes of eligibility for federal benefits, ‘marriage’ means ‘only a legal union between one man and one woman as husband and wife’ and the word ‘spouse’ refers ‘only to a person of the opposite sex who is not a husband or a wife.’”
The letter from Missouri infuriated the men. “We don't even have the decency of getting an interview. If you’re going to deny me, deny me to my face. I want them to tell me that in person,” Ruiz said. He and Zavala are fighting the written ruling and still seeking an in-person interview.
“We want them interviewed and scrutinized like all other green-card marriages to determine that, except for DOMA, they meet all the requirements for approval,” said the men’s attorney, Lavi Soloway, who specializes in same-sex immigration cases.
Studies have shown there are about 40,000 same-sex binational couples living in the United States, Soloway said.
Soloway, who with law partner Noemi Masliah heads The DOMA Project: Binational Couples Fight For Equality, said Immigration has treated same-sex couples inconsistently.
“There are gay and lesbian spouses who have been interviewed, they receive employment authorization, they receive the benefit of lawful status of pending green card applications,” Soloway said. “They're eligible for Social Security cards, can open bank accounts, get driver’s licenses.”
Zavala, who has a degree in international relations from a Mexican university, cannot legally work in the United States or drive a car. He fears that if he leaves the United States, he won’t be able to return. He couldn’t attend his grandfather’s recent funeral in Mexico and his mother, being treated for cancer, had to visit Miami so she could see her son.
Ruiz, an interior designer who graduated from Design and Architecture High School in Miami and Florida International University, could move to Mexico with Zavala, where their American marriage would be recognized.
Zavala says that’s an unfair choice. “He shouldn’t be pushed away from his family because his country doesn’t recognize our marriage,” he said.
The DOMA Project recently posted a seven-minute video about Ruiz and Zavala to YouTube, Yohandel & Daniel: DOMA Threatens Young Love.
“We spoke with the lawyer and he asked if we were willing to participate and be advocates in his organization,” Zavala said. “It’s a better idea to do something than to sit and wait for something to happen. We thought this video would put some pressure to move things forward.”
Gay marriage equality is now legal in nine states and the District of Columbia, as well as Canada, Argentina, much of Mexico, parts of Europe and South Africa. Thirty-eight states, including Florida, have anti-gay marriage laws or constitutional amendments banning recognition of same-sex weddings.
There is a movement in Congress to repeal the Defense of Marriage Act, which also permits states to not recognize gay marriages performed elsewhere. South Florida lawmakers Ted Deutch, Alcee Hastings, Ileana Ros-Lehtinen, Debbie Wasserman Schultz and Frederica Wilson are among 156 co-sponsors of the Respect for Marriage Act, according to Freedom to Marry, a New York-based gay-rights group.
Before Congress ever votes on full repeal of DOMA, a portion of the law might be tossed by the U.S. Supreme Court.
Last month, justices agreed to hear the case of Edith Windsor, an 83-year-old New Yorker who got hit with $363,053 in inheritance taxes after her wife, Thea Spyer, died in 2009. Windsor and Spyer, together 44 years, were married in 2007 in Canada and their home state recognized the marriage, according to the American Civil Liberties Union.
Windsor sued the U.S. government and last October a federal appeals court sided with her and declared DOMA unconstitutional.
When the Supreme Court agreed to hear Windsor’s case, justices said they would focus exclusively on DOMA’s Section 3 — the very section used by Homeland Security to deny residency for same-sex spouses.
“The law is clearly in a state of flux,” Soloway said. “It’s headed for its ultimate decision, ultimate ruling in June.”