Adams v. Howerton

• Citation: 486 F. Supp. 1119
• Decision Date: 25 February 1980
• Docket Number: No. CV 79-1003-IH.,CV 79-1003-IH.
• Parties: Richard Frank ADAMS and Anthony Corbett Sullivan, Plaintiffs, v. Joseph D. HOWERTON, Acting District Director of the Immigration and Naturalization Service of the United States Department of Justice, Defendant.
• Court: U.S. District Court — Central District of California

486 F. Supp. 1119

Richard Frank ADAMS and Anthony Corbett Sullivan, Plaintiffs, v. Joseph D. HOWERTON, Acting District Director of the Immigration and Naturalization Service of the United States Department of Justice, Defendant.

No. CV 79-1003-IH.

United States District Court, C. D. California.

February 25, 1980.

Brown, Weston & Sarno by David M. Brown, Beverly Hills, Cal., and American Civil Liberties Union Foundation by Fred Okrand, Los Angeles, Cal., for plaintiffs.

Andrea Sheridan Ordin, U. S. Atty. by Eva S. Halbreich, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

ORAL OPINION DELIVERED FROM THE BENCH (MODIFIED)

IRVING HILL, Chief Judge:

The Court has before it today cross-motions for summary judgment. Both sides agree that the case is ripe for summary judgment and both agree that there is no bona fide dispute of material fact and that the only issue presented is one of law.

The uncontradicted facts are these: Plaintiff Adams is an American citizen. Plaintiff Sullivan is an Australian citizen who came to this country in 1973 on a non-immigrant visitor's visa which would have expired on January 7, 1974. Both Plaintiffs are males. On January 5, 1974, two days before his visa expired, Sullivan went through a ceremony of marriage with a lady named Mary Egleston and applied for a change of status to the status of "immediate relative" of Mary Egleston. That status permits permanent residence in this country.

The status of "immediate relative" was first granted. It was later revoked by the INS on the grounds that there was no bona fide marriage between Sullivan and Mary Egleston. Thereafter that marriage was legally annulled.

Later, Mr. Sullivan secured a license from the County Clerk in Boulder, Colorado, to marry Mr. Adams. The two of them went through a purported ceremony of marriage, performed by a minister, in Colorado on April 21, 1975. Nothing has been done in Colorado since that date to void that "marriage."

Four days after that ceremony, on April 25, 1975, Mr. Adams filed a petition with INS to have Mr. Sullivan classified as his, Adams', "immediate relative." This classification was denied administratively. On final administrative appeal, the denial was affirmed, and the case came here.

The present action seeks a declaration compelling the granting of "immediate relative" status to Mr. Sullivan on the ground that the administrative denial was an abuse of discretion and an error of law.

The complaint also seeks an injunction against the commencement of deportation proceedings against Mr. Sullivan.

The only evidence before me is the administrative record, but it supplies all of the factual information.

The law that the Court must construe is a section of the Immigration and Naturalization Code that provides for the status of "immediate relative." The section is 8 U.S.C., Section 1151(b). It defines the term "immediate relatives" as follows:

". . . the children, spouses, and parents of a citizen of the United States."

The only one involved here is the term "spouses." The section doesn't include any further definition of the term "spouses." Nor is there any definition of that term in other sections of the immigration law except for 8 U.S.C., Section 1101(a)(35). That section provides that the term "spouses" does not include:

". . . a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated."

Plaintiffs contend in this case that under both Colorado and federal law the two males are married to each other and are thus spouses of each other. They contend that if the governing law deprives them of the status of being married to each other and of being a spouse to each other, it is unconstitutional under due process and equal protection.

The government contends that one cannot be married to a person of the same sex and thus, if they are of the same sex, one may not be a spouse to the other. That result is urged under both Colorado and federal law.

The government also contends that whether federal or state law governs, there is no constitutional infirmity in that result.

The final administrative decision in the INS is the decision of the Board of Immigration Appeals found at page 3 of the Administrative Record. It applies only Colorado law and does not deal with any constitutional argument, although constitutional arguments were made in the administrative phase of the case.

That is the posture of the matter as it presents itself to this Court. This Court must first address the question of what law governs the determination of whether Adams and Sullivan are married and are spouses of each other.

We are construing a federal immigration statute. But there are a number of cases which hold that in deciding whether a marriage was valid, the INS, in its administration of the immigration laws, will apply the law of the place where the marriage was entered into. The only Circuit Court case we have found is On v. Brownell, 253 F.2d 814 (5th Cir. 1958), but there are a number of Board of Immigration appeals decisions to the same effect. See e. g., Matter of P., 4 I & N Dec. 610 (B.I.A. 1952); Matter of Levine, 13 I & N Dec. 244 (B.I.A. 1969).

This reference to state law is, as I have said, an approach that is sanctioned by some cases. However, since we are dealing with an act of Congress, we have to recognize that Congress in its immigration statutes is not obligated to follow the law of the place where the marriage was contracted. One instance where Congress specifically declined to do so is Section 1101(a)(35), quoted above, in which marriages made when the parties were not in each other's presence are not recognized as marriages for purposes of the immigration laws even though they may have been considered valid by the law of the place of celebration.

There are many other cases in which for immigration purposes marriages apparently valid under the law of the place where they were contracted have been ruled not marriages for immigration purposes because they are determined not to have been bona fide marriages. We have such cases in our own Circuit, one of which is Volianitis v. INS, 352 F.2d 766 (9th Cir. 1965) (marriage not recognized because contracted for sole purpose of permitting alien to remain in U.S.).

I deduce from all of this the following rule of law: For immigration purposes, whether one is married to another, or is the spouse of another, is governed by congressional intent. It is the congressional intent that one look to the law of the jurisdiction where the marriage was contracted to determine its validity. But that is not an absolute and totally governing criterion. If the state law (or in certain instances the foreign law) is one which offends federal public policy, Congress is deemed to have intended federal public policy to prevail.¹

We now pass on to examine the validity of this alleged marriage under Colorado law. There aren't any Colorado cases on the subject. The Colorado statutes don't specifically allow, nor do they specifically prohibit, marriages between persons of the same sex. There are a group of Colorado statutes on marriage commencing at Colorado Revised Statutes, Section 14-2-101. They do not contain, as I have stated, any sanction or prohibition of marriages between persons of the same sex, and only one of those sections refers to the sex of the persons involved in a marriage. It is Section 14-2-104, which provides:

"Formalities. A marriage between a man and a woman licensed, solemnized, and registered as provided in this part 1 is valid in this state."

I extrapolate from that section, and hold, that the term "marriage" as used throughout Colorado law refers to a contract and ceremony involving, as the above section says, "a man and a woman." And that is also the opinion of the Colorado Attorney General.

In an informal unpublished opinion addressed to a member of the Colorado Legislature three days after the "marriage" in question in this case occurred, the Colorado Attorney General said that purported marriages between persons of the same sex were of no legal effect in Colorado. This opinion is found at page 48 of the Administrative Record.

The Attorney General's opinion articulates a proposition of law which I adopt and which is central to the instant case. That proposition is this: The term "marriage," (and therefore the term "spouse" which is derivative from the term "marriage,"²) necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes. That is the way the term "marriage" is defined in every legal source that I have examined, starting with Black's Law Dictionary. This rule of law, this construction of what a marriage is, is the holding of a number of cases in various states. Among them are: Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499 (1971); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed for want of a substantial question, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); Jones v. Hallahan, 501 S.W.2d 588 (Ky.1973); and Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187 (1974). Of all those opinions, Singer v. Hara is the best reasoned. But the most important precedent is Baker v. Nelson, the Minnesota case, as explained below.

There is an interesting article, Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799, 874-78 (1979) which reviews much of the decided case law in this field. As that article says, no court has yet recognized a union between persons of the same sex as being a legal marriage, and that is the view of this Court as well.

Now we must go on to discuss federal law. If the Colorado law was the other way and recognized the validity of this purported marriage, I would nevertheless affirm the INS and grant judgment for the...