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The federal government’s Defense of Marriage Act (DOMA) was challenged in court on Monday when five legally married same sex partners filed a lawsuit arguing that the law is unfair to bi-national couples.

In the suit, the couples (who want to apply for green cards) allege that DOMA violates their constitutional right to equal protection.

“Solely because of DOMA and its unconstitutional discrimination against same sex couples, these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples,” the suit states, adding that if the plaintiffs were straight couples then “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship.”

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Immigration Equality Executive Director Rachel Tiven told Raw Story on Tuesday that the suit could have been prevented if the Obama administration had simply put green card applications from bi-national same sex couples on hold until other DOMA challenges could be litigated.

“We believed and we still believe that putting those green card applications on hold — neither granting or denying them — is a value-neutral way to proceed,” Tiven explained. “It is well within the government’s power to do. However, the government has not been willing to do that. And as a result, our couples’ green card applications are being denied and we have no choice but to sue.”

Kelli Ryan, who’s wife, Lucy Truman, is a native of the United Kingdom, told reporters that becoming part of the lawsuit was “clearly the right thing to do.”

“Should this be an avenue towards allowing people in our situation to become lawful — having our marriages recognized and to sponsor our partners for green cards — we will be relieved of this uncertainty and paralyzing feeling that we feel,” Ryan said. “We will be able to achieve this not only for ourselves, but everyone else who finds themselves in this position.”

Heather Morgan told The New York Times that she joined the lawsuit with her spouse, Verdugo Yañez, who is a citizen of Spain, because she was “a citizen of this country just like anybody else.”

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“I don’t want to feel like I have to leave here in order to be with the person I love,” Morgan remarked. “I shouldn’t have to choose.”

Others couples participating in the lawsuit include Edwin Blesch and his South African spouse, Tim Smulian; Frances Herbert and her Japanese spouse, Takako Ueda; and Santiago Ortiz and his Venezuelan spouse, Pablo Garcia.

The United States Citizenship and Immigration Services (USCIS) said in March of 2011 that it would accept green card applications from gay men and lesbians with spouses from abroad.

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But after only one day, the USCIS reversed itself, saying it would continue to deny applications, in spite of the Obama administration’s decision that it would no longer defend DOMA in court.

Photo: Immigration Equality

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