Saturday, March 10, 2007

Passport denied because name change not recognized.

front page of application for a U.S. passport

Last week's [Worcester, Mass.] Telegram & Gazette detailed a small story where the U.S. passport office has refused to recognize not the marriage itself, but the name change involved in a person choosing to alter their legal name under which they are known when they are married.

On May 20, 2004, three days after Massachusetts legalized same-sex marriages in the Commonwealth, Alicia Lison and Amanda Ginese were legally married in a small ceremony. Amanda elected to change her last name to Lison. Under Massachusetts state law, that made her name change a legal fact, not requiring a trip to the Probate Court Department. For the past three years she has used that as an identified for such things as her state driver’s license and her Social Security card.

A few months back Amanda sent in photographs and the required fees in order to obtain a U.S. Passport. This was in preparation for a vacation cruise. A week before her cruise was due to leave, however, she received a letter from the Passport Office saying that the application was being denied because her name change was not being recognized as valid.

The agency said it refused to recognize Amanda’s married name, even though she had wed three years earlier and had legally changed her surname to that of her spouse.
According to the federal government, Amanda had married the wrong gender.

“I guess I’m not all that surprised,” said Amanda, sans passport, as she waited for her cruise ship to sail out of New York City last Thursday. “I should have known. It was amazing to be able to get married. I never thought it would happen in my lifetime. But I never had an issue until this passport thing.”

Of course,this kind of intrusion is inevitable, given the language of the so-called "defense of marriage act."
A spokesman from the U.S. State Department in Washington, D.C., said same-sex couples seeking a passport under a married name can’t do so absent additional documentation, and that the government doesn’t recognize such name changes based solely on marriage certificates, as it does for heterosexual married couples.
[Worcester, Massachusetts] City Clerk David Rushford said Amanda’s case is the first he has heard of a gay person being denied a passport based on her married name, partly because many gay couples have kept their own name. Both he and Mr. Bell [Bruce Bell, a lawyer for Gay and Lesbian Advocates and Defenders] said that, because a name change is a state issue, Amanda’s name change should be legal.

“So what they’re really rejecting is the change in marital status,” Mr. Rushford said. “They’re not treating people equally with that kind of action.”

Amanda, 23, said she’s contacted the offices of state Sen. Edward M. Augustus Jr. and Gov. Deval L. Patrick, and is angry that the Boston Passport Agency has refused to refund her money. She didn’t have time to get another passport in time for her Eastern Caribbean cruise, which left Thursday from New York. Speaking by telephone from the dock, she said she’s nervous to be without one because if she had to fly home for any reason, she’d have a hard time getting back into the United States.

Mostly, though, she’s sad that her cruise has been dampened by a federal law she thinks is all wet.

“No one told me this could happen and I had no way of knowing it,” she said. “It’s just not fair. We went through so much to legalize gay marriage, and to deny me something like a passport doesn’t make much sense.”

This is just another data point on how that prejudice and unfounded fear of a few is continuing to affect the many. The DOMA is an unwarranted intrusion into the private lives of people who are citizens of this nation, and enshrines an effective religious test into the recognition of marriage, because the arguments in favor of this particular definition of "marriage" all fall back to appeals to "tradition." A "tradition" which is based on a particular religious "standard" itself.

One of the fears of these prejudiced few is that the U.S. Supreme Court has itself declared that the freedom to marry of one's own choice is itself one of the "unenumerated rights" declared in the Constitution -- see, in a Supreme Court case involving involuntary sterilization of criminals, that marriage is “one of the basic civil rights of man.” (SKINNER v. STATE OF OKL. EX REL. WILLIAMSON, 316 U.S. 535 (1942) ). And the supreme Court reiteratd that view when they referenced Skinner v State of OKL in the miscegnation case "Loving v VA" (1967)

In the comments to the T&G piece, someone claims that they were able to get the Passport Office to give them the passport under their married name, apparently when they notified the passport office that they were represnted by legal counsel.

Lets look at a couple of pieces of law

First, some old, really “settled” law

Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now some law that hasn’t really been validated yet by confirmation through the U.S. Supreme Court

(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof
`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'.
This second, to my unlettered eye, contradicts both cited sections of the first.

These are, of course, the Constitution of the United States () and the “Defense of Marriage Act”

The analysis by the DOMA sponsors claims that they have, in essence, their own little set of extra-judicial rules akin to what are commonly referred to as the “presidential signing statements.” Their claim is that they can substantially bypass the “Full Faith and Credit” clause of the U.S. Constitution that would normally compel all the states in the nation to recognize a “same-sex” marriage. However, this interpretation is illustrated by affirmative examples (requirements for the states to recognize and enforce child custody and child support orders), while this legislation allows the several states to effectively ignore the judicial proceedings, and civil contracts, of another state. The analysis itself is a little contradictory, -- in the last paragraph of the analysis:
“DOMA is not meant to affect the definition of "spouse" (which under the
Social Security law, for example, runs to dozens of lines). It ensures
that whatever definition of "spouse" may be used in Federal law, the
word refers only to a person of the opposite sex”.
Either you are “affecting” the definition or not, guys – you cannot have it both ways.

Both Skinner and Loving hinged on the Equal Protection clause of the U.S. Constitution, and that may be the eventual road taken to overturn DOMA. Also, of perhaps more direct import, is ROMER v. EVANS, ___ U.S. ___ (1996) which decision directly confronted a CO state constitutional amendment that directly precluded the granting of equal rights, based upon gender roles. Romer also hinged on the Equal potection language.

My own feeling is that the Full Faith & Credit clause may be more important, and I really don't see the free-market zealots being willing to weaken the part of the U.S. Constitution that relates to the enforcement of civil contracts.

The above is, of course, old news, but it needs to be kept in our minds as an example of how simple it is for the rights of the citizens to be abrogated.

After this, who knows? Maybe the federal government will decide that they can bypass the constitutional protections against warrentless searches, and the requirements of habeas corpus and the guarantee of a speedy trial and to be able to face your accusers. Oh, well. Never mind....

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