When Republican Sen. John Kyle quipped in November that young undocumented immigrants should consider marrying U.S. citizens to get a green card, his comments were rightly assailed as insensitive and inaccurate. But for many bi-national couples, Kyle's flourish carried an additional sting, because marriage is a path to legal residency that's not accessible to all.
The Defense of Marriage Act, or DOMA, signed by President Bill Clinton in 1996, enshrines marriage as straight and bars same-sex couples from a long list of federal benefits, including the right to petition for immigration status for a spouse. Now, advocates are fighting on multiple fronts so that same-sex couples can access immigration relief through their partners. But while the winds of change are behind them, the way to victory is not an easy one.
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As immigration reform unfolds in the coming months, LGBT immigration advocates hope to include rights for same-sex couples in the sort of comprehensive bill the president and Democrats want. But more conservative members of the developing reform coalition argue to do so would be to add a poison pill. Meanwhile, all eyes are turning to the Supreme Court, which will rule on DOMA this year.
The Supreme Court
In December, the Supreme Court agreed to hear arguments on the constitutionality of DOMA. The case was brought by the American Civil Liberties Union on behalf of a woman named Edie Winsdor who was forced to pay hundreds of thousands of dollars in estate tax when her long-time partner died. The part of the law at issue in the case also blocks bi-national same-sex couples from gaining immigration status through marriage. If the court upholds a lower courts finding on DOMA's unconstitutionality, same sex couples married in any state will be allowed to petition for undocumented spouses.
In the years since DOMA became law, 10 states and Washington, D.C., have passed legislation providing state marriage rights to gay couples, but federal law currently doesn't recognize these marriages. A 2011 report from the UCLA's Williams Institute estimated there are 40,000 same-sex couples who were barred from applying for immigration benefits available to straight couples with similar immigration status.
Prerna Lal is an immigrant rights activist in Washington, D.C., who came to the United States from Fiji as a young child and has spent most of her life as an undocumented immigrant.
Lal, 28, who is in law school and plans to become and immigration attorney, is in the middle of her own legal fight for her green card, which she applied for through a U.S.-citizen family member but which the government has refused to grant. Now she says she's looking to the Supreme Court's DOMA decision to provide an alternative avenue to gain lawful immigration status. Lal and her girlfriend, Lindsay Schubiner, also 28, a policy advisor in Washington, say that if the court overturns DOMA, they will consider marriage.
"Until now, that has not been an option," Lal said. "But if DOMA is overturned, I think it would definitely change things in terms of our life planning."
Schubiner, who was born in Detroit, says the hardest part of watching Lal go through the court process is that the future of their relationship is not in their control. "A good decision from the court would put it in our hands as opposed to an immigration judge's hands. Even if we didn't want to get married tomorrow, it's our decision," said Schubiner.
A coalition of over 50 immigrant rights and gay rights organizations asked the Obama administration in December to put a hold on applications for green cards for undocumented same-sex spouses until the court reaches a decision. The Obama administration has so far not implemented such a freeze, which puts gay and lesbian undocumented spouses at continued risk of deportation. In December, the Department of Homeland Security restated that it "will continue to enforce [DOMA] unless and until Congress repeals it, or there is a final determination that it is unconstitutional."
"My entire law school process has been me flying out to the West Coast for my deportation hearings," Lal said. "If the court overturns DOMA, it would provide a straight path to citizenship for me and a path to keep our family together."
A Legislative Answer
But even a court decision overturning parts of DOMA would likely still leave many couples ineligible to petition for green cards. That's because for same-sex couples who unlike Lal and Schubiner live in one of the 40 states that do not permit gay and lesbian couples to marry, marriage-based immigration relief will remain limited.
"For those who don't have access to marriage, the decision is not the end of the story," said Steve Ralls, a spokesperson for the group Immigration Equality, a legal advocacy organization for gay and lesbian immigrants. The group and other rights advocates are also supporting a legislative fix. The Uniting American Families Act, introduced in 2011 by Rep. Jerrold Nadler, a New York Democrat, would allow U.S.-citizens to sponsor their non-citizen partner for residency. The bill does not wait for DOMA to be overturned but rather requires same-sex couples to prove they're in a committed relationship even if not married.
But bi-partisan support for marriage rights in immigration reform has been scant. So far, only three Republicans have signed onto the bill--Maine Sen. Susan Collins, and Reps. Charlie Dent of Pennsylvania and Richard Hanna of New York. Wisdom on the Hill is that the law has little chance of passing.
"It probably can't move alone," a Democratic Senate aide acknowledged about the bill.
Advocates hope that they'll have better chance of winning by folding the legislation into a broader immigration reform package. In November, the Congressional Hispanic Caucus released a set of core principals for immigration reform including that a bill "protects the unity and sanctity of the family, including the families of bi-national, same-sex couples."
"It seems pretty clear to us that an inclusive immigration bill will actually garner more support than a bill that leaves LGBT couples behind," said Steve Ralls, of Immigration Equality.
But some argue that including the rights of same-couples in reform could fracture the growing immigrant rights coalition. Evangelical and Catholic groups, key allies in the immigration reform push, generally oppose gay marriage and recognition of same-sex couples.
"Family unity is one of our key principals in immigration reform," said Gaylen Carey, head of government relations for the National Association of Evangelicals, which is part of a coalition of evangelical groups supporting an immigration overhaul. "But we also have a well known principal on family composition. We support a family and marriage between a man and women. We could not support those provisions."
Carey says that including gay rights in a reform package could throw a wrench in what he believes is an unusual opportunity to pass an immigration reform bill. "It should not muddy the waters in what should be a consensus on immigration reform," Cary said. "Opponents of immigration will make it into a wedge issue."
Prerna Lal disagrees. She says the claims by social conservative supporters no longer hold water. "If anything, immigration is the wedge issue now, not LGBT rights, which have gained mainstream support. It's become more and more unpopular to deny people equal rights."