Gay-Inclusive Immigration Reform, DOMA, and Obama's Promise: What are Senate Democrats to Do?

BY ARI EZRA WALDMAN 

The Defense of Marriage Act (DOMA) may be the greatest barrier to gay-inclusive immigration reform, but that doesn't mean that Congress and the President cannot get together and score a victory for gay equality while fixing a broken immigration regime that is full of too much discretion, too many perverse incentives, and just the wrong amount of cacophonous nonsense.

Viewimage_story.phpDOMA, which is being challenged at the Supreme Court in Windsor v. United States, prevents U.S. citizens who are legally married to foreign nationals of the same sex from sponsoring their spouses for visas, as in the case of Joshua Vandiver and Henry Velandia (right). Therefore, the odious and discriminatory law does violence to the family and to American society as a whole: It either rips loving families apart, putting financial, emotional, and practical strains on the marriage, or banishes the married couple to some foreign land more hospitable to gay rights, which deprives us of skills and cultural capital we so desperately need to compete in a modern economy. Joshua and Henry may have won a reprieve when the government agreed not to deport Henry, a Venezuelan, but countless gay couples have not bee so lucky.

But, the Uniting American Families Act (UAFA) has been proposed as a workaround. The UAFA would allow a gay U.S. citizen to sponsor his or her foreign national partner even without being in a state-recognized marriage. Domestic partnerships and civil unions, the only civil covenants available to hundreds of thousands of gay couples in this country, as well as constructive partnerships -- loving and committed partnerships without official recognition -- would be sufficient to begin the "spousal" visa process.

DOMA may be on the way out, but the UAFA goes beyond a simple end to DOMA because the UAFA extends sponsorship rights to non-married couples. It recognizes that not every loving and committed couple can get married regardless of sexual orientation.

This seems like a no-brainer. President Obama included protections for same-sex couples in his immigration reform proposal. And yet, the UAFA -- or anything like it -- was omitted from the bipartisan immigration reform plan that emerged yesterday from the Senate.

AFTER THE JUMP, I offer some possible explanations for this omission and, after setting aside the knee-jerk reactions, I will argue that DOMA, its status as a litmus test for conservative bona fides among the right, and its currently uncertain status at the Supreme Court are complicating gay-inclusive immigration reform.

CONTINUED, AFTER THE JUMP...

You can blame the UAFA's omission on Republican anti-gay hatred -- Senators Marco Rubio, John McCain, and Lindsey Graham have made their anti-gay voices heard for years. In fact, Senator McCain already said that including protections for gay families would be a "red flag," which is little more than a euphemism for, "Hell no." You can blame the timidity of the Democrats -- Senators Chuck Schumer, Dick Durbin, and Bob Menendez have all been gay rights supporters, but one could hardly call them vanguard leaders that take unpopular pro-gay positions because they know they're right. Senator Schumer, for example, waited until the junior senator from New York, the pioneering ally Kirsten Gillibrand, came out loudly for marriage freedom to make his own switch from civil unions to marriage. You can even blame the last election -- both parties want immigration reform (the Democrats to deliver to a key constituency and the Republicans to try to prove they don't hate Latinos) and the art of getting things done is the art of the possible.

Imm_obamaThe one person you cannot blame is President Obama, who proposed a gay-inclusive immigration reform package.

But, despite the visceral anger some gay activists are directing at Senate Democrats for keeping the UAFA out of their immigration reform package, once we take a step back and think about the issue strategically, one of the following scenarios seem more likely: Either Democrats have a strategy to not just propose immigration reform, but to win a gay-inclusive immigration reform bill, or the uncertain constitutionality of DOMA has them waiting for DOMA's final demise to harmonize immigration law. Then again, they could be falsely equating the end of DOMA and the UAFA. Let's hope this last possibility is not the case.

Some facts: First, Senate leaders told various gay rights groups that Senator Patrick Leahy will offer the UAFA as an amendment in committee and several senators and representatives are on record as promising to include protections for gay binational couples in the final bill. Second, they had to have known that President Obama was going to propose a complete, gay-inclusive package. Third, as he has taken on a greater role in messaging for the Democratic agenda, Senator Schumer has shown a talent for enlisting alliances among interest groups to win popular support for the Democratic agenda. Fourth, the UAFA has been proposed and submitted before in both the House and Senate where it promptly went nowhere.

To throw in the UAFA without any additional groundwork would be as foolish as doing the same thing over and over again expecting a different result. And, it's even more important now that the UAFA passes: Democrats need to deliver to the active, monied, and influential gay community after the 2012 election. Plus, no one wants legislative protections for gay binational couples to rack up more losses on the tally; the more a bill fails, the less likely it will pass down the line. Most importantly, DOMA is up for consideration at the Supreme Court and an obvious 'no' vote on the UAFA could send an anti-gay message to the justices as they discuss the fate of DOMA.

Therefore, it is likely that cautious Democrats think that some additional work must be done before we can score a UAFA victory.

Immigration reform should be touted as being about security, love, and money: protecting our borders, keeping families together, and growing the American economy. There's nothing gay about that. Reform would not only help keep our families together, but those of poor migrant workers and those who were born elsewhere but whose children were born here.

Latinos-for-obamaPresident Obama plans to take his immigration proposals to the American people, bypassing Republican knee-jerk opposition in Congress. That process of building support among the voters is essential for the fate of protections for gays families because the President will likely be able to leverage his election win and his staggering popularity to raise popular support for his plans. Will Republicans be willing to filibuster or vote down the very immigration reform proposals demanded by the growing Latino community simply because those reforms will keep gay families together? They'll bloviate and breathe fire on Fox News until pigs fly, but when the President comes back with polling data showing majority support for his immigration reform proposals, and overwhelming support from Latino groups, Republicans will lose. They can't not support immigration reform lest they lose Latino voters for the next fifty years.

There is also the possibility that some Democrats think that they can rely on the Supreme Court striking down DOMA to solve the problem of gay binational couples. If some people hold this view, we know they're wrong: The end of DOMA would only mean that legally married gay U.S. citizens could sponsor their foreign national spouses. It would not help those who can't get married. Nor would it clarify what to do when a couple is married, but lives in a state that doesn't recognize their union. Given this truth, and the fact that our strongest supports in Congress have already disabused anyone of this view, I find it hard to believe that ignorance is a motivating factor.

The most reasonable explanation is, like most explanations, a combination of the above. Conservatives' distaste for anything gay is part of the story; any immigration bill has to get some Republican support in the Senate and pass the Republican-dominated House. But, it's more than that. Republicans have falsely accused the President of failing to enforce DOMA, conflating failing to defend with failing to enforce. That means that they have taken the mantle of DOMA as a standard of conservatism. It would be hard for them to make a U-turn now.

The dubious fate of DOMA at the Court may also be complicating Democratic plans for reform. If a gay inclusive immigration reform package passes, the gay binational couple problem is solved. But, if DOMA remains on the books, it still bars federal recognition of state-sanctioned gay marriages for every other purpose. This kind of confusing labyrinth of laws -- it applies here, but not there -- is the stuff of anti-government humor and is needlessly complicated to enforce. Therefore, perhaps they think they can wait for DOMA to go down to pass a clean UAFA bill.

Every moment they wait, more families risk being torn apart. President Obama has proven again that he is a fierce ally of our community by making protections for gay families part of his immigration reform package. Senate Democrats have not abandoned us; rather, they are more likely making a strategic play to make sure they can score a victory for us. Take heart. And make sure to hold their feet to the fire.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.

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Comments

  1. As an American in a bi-national relationship--my partner is Canadian--this issue cannot get resolved soon enough. For the past 5 years we have yo-yo'ed back and forth to Canada with increasing hostility at the U.S. border. We have never ever over-stayed in either country though Canada would love for us to settle there. Our home really is in the U.S. Makes me so sad as an American that I've not been able to put down roots in my native country and invested in my home community with my life partner. Keeping fingers crossed that our President and the Congress will redress this dreadful policy that has turned our lives upside down.

    Posted by: Southernmost | Jan 30, 2013 12:18:02 PM


  2. Thanks Ari, always appreciate our insight. As we're currently seeing a number of amicus briefs being filed from various anti-gay groups at SCOTUS for Prop 8 and DOMA cases, would you please give us some insight into if the justices actually read these, leave them to staff, or ignore them outright, as well as what, if any, impact they may or may not have. Thanks.

    Posted by: Jeff | Jan 30, 2013 1:02:57 PM


  3. Thank you Ari for the insight.
    =)

    Posted by: George F | Jan 30, 2013 1:16:32 PM


  4. By gurgling, "President Obama has proven again that he is a fierce ally of our community by making protections for gay families part of his immigration reform package," Mr. Waldman, in addition to engaging in childish hyperbole, has only proven, yet again, that he only pays attention to the few things the President does right. Is Mr. Waldman, himself, a fiece advocate for his own people—or Towleroad's resident shill for the Administration?

    While numbers aren't the ultimate determining factor in importance, we'd submit that there are at least as many gay military couples as civilian gay binational couples—some, no doubt, both military and binational. But, despite a promise more than five years old, the President has done NOTHING for them post DADT repeal, any more than he has to enforce equality under the law for individual gay troops. And we're not talking about something as big as order the Pentagon to stop arbitrarily banning gay couples, even those legally marriedn from access to free military family housing even though it is NOT banned by DOMA. Just this week, "Stars & Stripes" magazine asked lesbian Army wife Ashely Broadway about whether she's gotten any help from him regarding something as simple as being allowed to join the non-DOMA regulated spouses club at Ft. Bragg which until a mountain of public condemnation fell upon them had denied, lied, viciously refused to let her be a member. Broadway's answer: "I know that the White House has been briefed on what is going on but as far as direct support from the White House on this incident, no, we haven’t."

    PS: Is Mr. Waldman still refusing to criticize our fierce ally for refusing to keep his promise to extend equal protection to hundreds of thousands of LGBT federal contractor employees with the stroke of his proverbial pen in the same way President Roosevelt ordered protections for black federal contractor employees SEVENTY YEARS ago?

    Posted by: Michael Bedwell | Jan 30, 2013 1:35:04 PM


  5. "The end of DOMA would only mean that legally married gay U.S. citizens could sponsor their foreign national spouses. It would not help those who can't get married. Nor would it clarify what to do when a couple is married, but lives in a state that doesn't recognize their union."

    As for that last bit: Where you live doesn't matter for immigration purposes. Immigration only asks if the marriage was valid where *celebrated*. So the end of DOMA ends the problem for anyone who is married, no matter where in the US they are domiciled.

    Posted by: Bingo | Jan 30, 2013 1:44:05 PM


  6. I've been writing about this piece of invidious discrimination for years.

    How dare the USA recognise valid foreign straight marriages but not valid foreign gay marriages for residence purposes ?

    Does the USA purport to adjudicate on the validity of internationally recognised marriages for their own domestic discrimination purposes ?

    Posted by: JackFknTwist | Jan 30, 2013 3:39:26 PM


  7. @ SOUTHERNMOST :

    I know exactly how you feel; and the immigration officers are always asking their suspicious questions. Like you I have never overstayed my visa.......
    but i resent so much that a straight couple get preferential treatment.

    Posted by: JackFknTwist | Jan 30, 2013 3:43:12 PM


  8. This is a difficult issue. Allowing illegal aliens to become legal by marrying an American is open to abuse and can cause chain migration. Of course, it is horribly unjust to allow opposite-sex couples to do this while not allowing same-sex couples to do so. The solution might be to end chain migration of both the marriage and anchor baby varieties for all alien families (especially if they contain an illegal family member).

    Posted by: DB | Jan 30, 2013 5:08:27 PM



  9. @jeff: thanks for your question. A column on amici is a great idea!! Stay tuned!

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Jan 30, 2013 5:54:49 PM



  10. @bingo: thank you for your comment, but thats not correct. If youre gay and married in, say, New Hampshire, but you live and pay taxes and everything in Kansas, which does not recognize that you are legally married, the federal government need not recognize that youre married, either, when it comes to federal rights. Your state doesnt say youre married and doma allows it not to recognize your out of state gay marriage. The federal government takes those the state tells it is married. Kansas is telling it youre not married. So, its not as open and shut as you would suggest. But thank you for your comment.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Jan 30, 2013 5:58:17 PM


  11. @Ari - That'll be news to a lot of people. I've always been told that federal immigration rights have no connection to where you are living in the USA.

    Posted by: Dan | Jan 30, 2013 6:11:53 PM


  12. @Ari - One more thing. You're saying that if DOMA is repealed, an American who wants to sponsor his foreign spouse must be resident in a gay marriage state. If so, how long does he have to be resident there before petitioning? Can the couple move to another state without losing the green card? (I'd love it if you guys could make a FAQ for when/if DOMA is repealed.) Thanks.

    Posted by: Dan | Jan 30, 2013 6:16:54 PM


  13. This obvious slap in the face given by the "bi-partisan" senate immigration framework may be strategic, but after 7 years of separation, I'm not so trusting when it comes to my government. Do I think the Democrats would throw us under the bus if immigration equality for gay and lesbian Americans was the only obstacle to a bigger deal on the issue? YES I DO. And so should any thinking gay American.

    Posted by: RWG | Jan 30, 2013 7:52:22 PM


  14. Thank you so much for bringing the heart wrenching struggle of bi-national same-sex couples to a larger audience. You cannot know how much this means to my partner and I personally, as we have been living apart the last 3+ years, hoping by some miracle that our government will finally allow us to be together. I have crossed the Pacific Ocean 6 times in 3 years and spent thousands of dollars just to see my partner once every 6 months. We are lucky to be able to do even that, but it is now starting to cause a huge financial and career strain on us both.

    Saying goodbye in tears at the airport behind glass walls and security guards, trying to be strong and get on the plane to go home to America alone, without my partner by my side is so heartbreaking. It is so cruel and inhumane to separate two people who love each other and want to spend the rest of their life together.

    To hear Lindsey Graham compare my relationship to the moral equivalent of "an abortion" and to hear John McCain say that same-sex immigration rights are "not of paramount importance" is insulting and hateful. I guess we really are second class citizens to them.

    But I am just as American as they are and I deserve to be treated Equally under the law. Why should our Government create laws to keep two people who love each other apart? Why should our government allow "mail order brides" to exist, yet completely ignore couples who truly love each other? What purpose does this serve other than to discriminate against gay people?

    Senator Durbin, my senator, appears to have just thrown my family under the bus by leaving us out of their framework plan. I hope and pray that someone will have the moral decency to do the right thing here. I was hopeful after President Obama's inauguration speech, but now I worry that granting bi-national couples immigration equality will be just another bargaining chip that democrats surrender on to get a larger deal done.

    Please Senator Durbin and others, prove me wrong. Please show us that you hear our calls and remedy the injustice that we face. Prove to us that you are a human being and care about doing the right thing. Every day you wait, is another day we are separated from the ones we love!

    Posted by: MLJC | Jan 30, 2013 11:38:40 PM


  15. I feel immigration is becoming tighter everywhere in the world. Gay or straight it does not seem to be the main issue.
    Citizenship by jus sanguinis seems the only true and sure way of living in another country with a partner. Citizenship by jus sanguinis is a great honor and privi for both gay and straight folk.
    I don't rely on good ol immigration anymore.
    Those days seem to be over for all.

    Posted by: blonder | Jan 31, 2013 5:00:24 AM


  16. Simple: stop all immigration except for capital investors and critical professions.

    Posted by: David Hearne | Feb 1, 2013 12:03:05 AM


  17. @bingo: thank you for your comment, but thats not correct. If youre gay and married in, say, New Hampshire, but you live and pay taxes and everything in Kansas, which does not recognize that you are legally married, the federal government need not recognize that youre married, either, when it comes to federal rights. Your state doesnt say youre married and doma allows it not to recognize your out of state gay marriage. The federal government takes those the state tells it is married. Kansas is telling it youre not married. So, its not as open and shut as you would suggest. But thank you for your comment.
    -ari

    That's one possibility, but if the Feds recognize marriage "where celebrated" for immigration purposes, they could certainly do so for other purposes. It's not customary for states to confirm marital status to the federal government, and New Hampshire would have standing to insist that the federal government recognize the validity of the marriages that they have performed according to their laws.

    Not that I'd want to be the test case for this issue, but I think the outcome is at least plausibly favorable.

    Posted by: Rich | Feb 1, 2013 12:10:19 AM


  18. So tell me again why we support Democrats if they are not willing to stand-up to the bully republicans and haters?

    Posted by: RK | Feb 1, 2013 11:59:55 AM


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