Among the legal barriers that today’s dramatic Supreme Court decision on same-sex marriage sends tumbling down is the exclusion of same-sex couples from marriage-based immigration benefits. As Congress debates immigration reform, the rights of LGBT immigrants and their U.S. citizen partners have been a central sticking point, with Republicans threatening to kill the immigration bill if Democrats insist on legislating LGBT rights. Today’s historic decision, striking down the Defense of Marriage Act, largely puts that debate to rest, by allowing gay and lesbian U.S. citizens to apply for legal residency for their partners.
“DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” wrote Justice Anthony Kennedy for the majority in a 5-to-4 decision. “The federal statute is invalid.”
Immigration through marriage has long been a core component of U.S. citizenship policy. Under existing law, U.S. citizens in opposite-sex marriages can sponsor their immigrant husband or wife to come to the U.S. or remain here with legal authorization. But same-sex couples have been excluded and countless partnerships have been thrown into limbo.
Twelve states currently have laws that permit same-sex marriage. This limits the reach of the court’s decision, because the remaining 38 states retain heterosexist marriage laws. The decision does not create a constitutional right to marriage and thus does not immediately impact laws in those states. But the decision is likely to have a ripple effect, as states may now move to pass marriage equality laws. And the court’s DOMA decision means that marriages performed in one of the 12 states that recognize same-sex unions will be considered valid for federal benefits, even if couples reside in another state.
The rights of gay and lesbian couples to sponsor non-citizen partners for immigration visas became a central area of debate in the ongoing immigration reform deliberations. For several years, Democrats in Congress have introduced stand-alone legislation that would allow U.S. citizens to petition for a green card for their same-sex partners, married or not. That legislation, which gained small Republican support, never made it far, but many hoped that immigration reform would include LGBT rights provisions.
Earlier this year, President Obama urged Congress to include same-sex couples in immigration reform legislation. And the White House’s own outline on immigration reform recommends “[treating] same-sex families as families by giving U.S. citizens and lawful permanent residents the ability to seek a visa on the basis of a permanent relationship with a same-sex partner.”
But when the bi-partisan group of eight senators introduced their immigration reform bill into the Senate Judiciary Committee in April, it included no such measure. And despite broad stated support from Democrats to amend the bill to include LGBT provisions, Democrats agreed to scrap those commitments when key Republicans said they’d bail on the bill if the committee included equality proposals. “You will threaten the entire product,” Florida Republican Sen. Marco Rubio said at the time.
After making the decision to table his same-sex couple amendment, Judiciary Committee Chair Sen. Patrick Leahy, Democrat of Vermont, proposed the same-sex marriage amendment last week on the Senate floor. Few observers think that provision has a chance of passage in the current effort to garner Republican support for the bill. Instead, advocates of equal rights for all couples took to watching the court for a remedy. The Supreme Court decision today changes the calculus for Democrats like Leahy, basically making the decision for lawmakers. Whether conservative elected officials like it or not, married same-sex couples will have the same rights as opposite-sex couples to sponsor non-citizen husbands and wives for green cards.