Anthony Sullivan & Richard Adams, Plaintiffs in 1982 Case Against INS, Celebrate 25th AnniversaryA Look Back at Their Struggle to Have Their Marriage Recognized for Immigration Purposes
In the last TASK FORCE UPDATE, we presented the first part of the story of Anthony ("Tony") Sullivan and Richard Adams. Anthony, an Australian citizen, met Richard, a naturalized American, in Los Angeles in 1971. The couple were legally married in the state of Colorado on April 21, 1975, becoming one of six same-sex couples legally married by a Boulder city clerk. Later that year, Richard filed a petition to have Tony granted permanent residency as the spouse of a U.S. citizen. The petition was denied by the Immigration Service (INS), which responded, "You have failed to establish that a bona fide marital relationship can exist between two faggots." The couple then began a ten year legal battle, suing the Immigration Service and trying to stave off Tony's deportation. We pick up the story in 1979. Tony and Richard had sued the INS in U.S. District Court in Los Angeles alleging unconstitutional discrimination. Judge Hill ruled that as a gay couple they were not recognized as a marriage for immigration purposes. They appealed to the Court of Appeals. In 1980, Tony's application for suspension of deportation on the basis that separating him from Richard would constitute extreme hardship was denied by Judge Griffin. Again, Tony and Richard appealed the decision to the Board of Immigration Appeals.
On February 26, 1982 Tony Sullivan was celebrating his fortieth birthday when he received a telephone call from a journalist asking him for his reaction to the decision of the U.S. Court of Appeals in his case. Tony was stunned. The journalist informed him that the decision had been handed down a day before and was being widely reported in the media in San Francisco. Tony and Richard had lost their appeal.
When they finally received a copy of the decision, Tony and Richard were surprised to find that the opinion did not reach the question as to whether their marriage was valid.
The Court stated that even if their marriage was valid under Colorado law, it might still be insufficient to confer status as "spouse" for immigration purpose, because Congress had not shown intent to enlarge that category beyond the common dictionary definition of spouse of the opposite-sex. Also, the Court was persuaded that Congress could not have had this intent and at the same time kept the explicit exclusion of homosexuals intact. "We think it unlikely that Congress intended to give homosexual spouses preferential admission treatment," the Court wrote.
Tony and Richard were disappointed that the Court did not decide whether Richard was the victim of unconstitutional discrimination as a U.S. citizen.
For several weeks Tony and Richard struggled with the decision about whether or not to appeal the Ninth Circuit decision to the United States Supreme Court. They made lists of the pros and cons of either decision and heard a lot of advice from gay and lesbian activists on both sides of the issue.
Tony and Richard considered the risk that a Supreme Court may decide against them, which would be a significant setback to future litigation to secure equality for gays and lesbians. They considered the prolongation of the anguish and stress brought on by the litigation which had come to dominate their lives. On the other hand, they felt that they had a psychological need for closure, to complete what they had started in standing up for their beliefs. They felt that they should not let stand the bad Ninth Circuit decision. Lastly, perhaps most importantly, Tony felt that he need to remain with those he loved, particularly Richard.
The idea that a gay couple may be ready to appeal a case about marriage and immigration to the Supreme Court sparked reaction from many "players" in the lesbian/gay/civil rights legal community at the time. Many lawyers and activists and some gay and lesbian organizations advised against this move, urging Tony and Richard not to appeal. A conference was held between their lawyer, the ACLU, other gay lawyers and members of what passed for the gay and lesbian political establishment. The ACLU, which, according to Tony, had reluctantly supported their case thus far, dissociated itself from the case.
Tony and Richard's attorney advised them that while he did not disagree with the legal analysis of activists, he was prepared to remain with them until the end. Finally, Tony and Richard decided to pursue an appeal. On May 26, 1982, Tony Sullivan and Richard Adams petitioned the United States Supreme Court to hear an appeal of the decision of the Ninth Circuit to the US Supreme Court. On June 28, 1982, the Supreme Court denied their petition.
Almost two years later, on April 20, 1984, the eve of Tony and Richard's ninth wedding anniversary, the Board of Immigration Appeals issued a decision on the appeal of Tony's suspension application. The Board agreed that Tony had maintained the requisite seven years of continued presence in the United States that would allow him to be eligible to seek suspension of deportation on the basis of "extreme hardship." The Board also conceded that Tony was of "good moral character," another requisite of suspension of deportation. However, most importantly, the Board did not find that Tony would suffer extreme hardship if deported: "We do not find that the respondent's separation from his "life partner" will cause him hardship, emotional or otherwise, sufficient to rise to the level of extreme hardship... Separation from those upon who one has become attached or dependent is common to most aliens who have spent a considerable amount of time in the United States; it is not the type of hardship, absent special or unique circumstances, Congress intended to remedy..."
Tony and Richard appealed the decision of the Board to the Ninth Circuit Court of Appeals. The case was heard in Pasadena on December 5, 1984, more than thirteen years after Tony Sullivan first came to the United States. The government was represented by a forty-eight year old Latvian-born immigrant, Dzintra Janavs. Tony Sullivan recalls how Janavs and Judge Anthony Kennedy (who was later appointed to the Supreme Court by President Reagan) began a "duet about how genocidal" the Immigration Service was. According to Tony, Janavs remarked, "We send El Salvadorans back to El Salvador," to which Judge Kennedy responded, "We even send anti-Khomeini students back to Iran." Janavs concluded, "Mr. Sullivan can go back to Australia and start another of those relationships." Tony and Richard left the courtroom with absolutely no expectation of justice.
As the months passed, Tony and Richard knew that their ten year battle was most likely lost. They held little hope for an eleventh-hour reprieve, and began to prepare emotionally to face being forced to leave the United States.
The Court handed down its decision on September 30, 1985 ruling against Tony and Richard. The deadline for their departure was midnight November 23rd, 1985. Ten years had passed since they had received the first communication from INS, "The Faggot Letter," rejecting Richard's petition.
As the date of departure grew nearer, Tony and Richard wrote to President Reagan begging for his intercession on their behalf. Again Tony and Richard sought out the help of the "gay and lesbian leadership," but found only that the L.A. Gay and Lesbian Republicans were supportive. In the last remaining days before they were to depart from the United States, Tony and Richard continued to fight their battle in the court of public opinion, appearing on on "Donahue" and the "Today" show.
On the eve of their departure, Tony and Richard hastily advertised a "deportation sale," and rid themselves of their belongings. They sold their treasured 1966 Ford Fairlane convertible and their 1954 Cadillac, for much less than their value. They relinquished their sentimental attachments and packed the last of their belongings. Together, Richard and Tony tearfully said good bye to their friends and flew to London, where they began to plan to obtain a visa for Richard to enter Australia.
The last part of Tony and Richard's story will appear in the Winter 1997 edition of the TASK FORCE UPDATE.