Long road ahead for Colorado’s bi-national same-sex couples

May 1 is the day that Boulder couple Cathy Davis and Catriona Dowling’s 2012 Iowa marriage will be recognized as a civil union before the State of Colorado. That’s good news for them, but Colorado’s new law offering same-sex couples one step closer to equality cannot completely ease the Boulder couple’s minds – at any moment, their family of themselves and three adopted children could still be torn apart.

Davis and Dowling are one of countless same-sex couples living in America that don’t share U.S. citizenship. Both from Ireland, Dowling is a naturalized U.S. Citizen and Davis isn’t. Normally, being partnered to a U.S. citizen offers a path to citizenship through marriage, but the women’s relationship can’t be recognized by the federal government as long as the Defense of Marriage Act continues to stand, forbidding federal recognition of any same-sex union.

The couple is closely watching the landmark U.S. Supreme Court case United States v. Windsor, argued before the court in late March and due to be resolved by a Court decision in June. They’re working with the DOMA Project, a nonprofit committed to the repealing the law it’s named for, and sharing their story in hopes of raising awareness of the issue.

Davis and Dowling met in a typical Colorado fashion – trekking in the Himalayas. One of their first experiences together was summiting Imja Tse, a staggering 20,305–foot peak in eastern Nepal. But as Dowling noted, while most mountain climbing stories end at the summit, theirs was only beginning.

Three weeks after that first meeting in Nepal, the women were forced to part ways. Though they both grew up in small villages outside of Dublin, Dowling returned to Boulder, where she had been living for over 15 years. Davis returned to Ireland to continue her career as a nurse. Their connection withstood the challenge of geography and the couple began a long–distance relationship. Soon Davis began working to become registered as a nurse in the United States.

The process wasn’t that easy. Even though Davis already had a successful career in Ireland, the American job market and the difficult immigration process made it nearly impossible for her to get a permanent work visa in the United States. She was forced to travel in and out of the country several times on short–term visas, all while working to start a family with Dowling.

After Davis’s unsuccessful attempts at finding work in Boulder, the couple was then forced to move to Texas, where Davis had found a hospital that would sponsor her work visa.  Over the next two years, she continued on short-term work visas. By then they had adopted their three children.

The couple’s luck ran out when Davis was denied a renewal of her work visa and the family returned to Boulder. Before she left for Ireland, the couple was legally married in Iowa in 2012. Shortly thereafter, Davis applied for a green card and listed Dowling as her spouse, knowing that they would be denied because of DOMA.

Though the couple’s story is incredibly unique, their problem is not. At the complicated intersection between state and federal law, civil unions and marriage, it is easy for same-sex couples to get lost on the fringe, especially when a sweeping repeal of DOMA looks unlikely. The probability that the Supreme Court will deliver, at most, a measured verdict in the Windsor case will mean that same-sex couples like the Davis and Dowling will continue to live in ambiguity. And for families like theirs – requiring federal government acts to establish their family – that could mean severe consequences.

Things could be even worse for same-sex couples living in states like Colorado with everything–but–the–word–‘marriage’ laws for relationship recognition. According to Mindy Barton, who serves as the Legal Director for The GLBT Community Center of Colorado, same-sex couples in civil unions will still face the same discrimination from the federal government.

“There is only a small chance that I can see where the Windsor case could change Colorado civil unions because we have a constitutional amendment defining marriage, and civil unions are a separate state level recognition,” Barton said.

That state definition, according to 2006 voter–approved amendment to the state constitution, limits marriage and common-law marriage to opposite-sex couples. While the ban has no impact on the imminent civil unions law, it does mean that Colorado voters will have to once again amend the constitution before the state can recognize same-sex marriage. Because state law allows only fiscal initiatives to appear on the ballot in odd-numbered years, change can’t come in 2013; the earliest such an amendment is possible is 2014.

While the Colorado civil union law is designed to give same-sex couples the same state-level rights as straight married couples, federal benefits of marriage remain out of reach. For bi-national couples who rely on the federal regulation for spousal support in the citizenship process, little will change.

“It is our best guess that couples in a Colorado civil union would not be able to have rights to sponsor their partners citizenship until they would be in a legally recognized marriage in a state that recognizes it, and then also have the federal level recognition,” said Barton. Fortunately Davis and Dowling have taken every possible step to protect their family, and were legally wed in Iowa in 2011. Barton added that same-sex couples in civil unions will still face the same risks as before, until marriage equality and recognition is extended nation-wide.

That sentiment was echoed by Zeke Stokes, spokesperson OutServe–SLDN, an advocacy group for LGBT members of the nation’s armed forces. In the wake of the repeal of Don’t Ask, Don’t Tell, the military is figuring out how to deal with openly gay servicemembers – and their families.

“For the first time we are seeing openly gay service members requesting benefits for their spouses and families. DOMA currently prevents the extension of healthcare, housing and numerous other benefits to those people,” Stokes said. While there are some loopholes, such as military personnel being allowed to extend some benefits to a person of their choice under a “member-designated benefit” guideline, those are not always guaranteed and are not as comprehensive as the benefits automatically entitled to spouses and children of service members.

Stokes said the repeal of DOMA and full marriage equality across the country are necessary to truly ensure protection for LGBT servicemembers and their families, or any couple that seeks federal protections.

“Because the question of civil unions is not before the Court, full marriage will be the only way for same-sex couples to get federal benefits and protections,” Stokes said. We should not get complacent. The battle for marriage equality will not end with a repeal of DOMA. It will not end until every state has full marriage equality.”