Same-sex equality and comprehensive immigration reform

By Robert W. Glover, University of Maine

In March, I wrote in the BDN about the bi-partisan “Gang of Eight” plan for comprehensive immigration reform.  At the time, the measure was in its infancy, a 17-page rough outline of which no one had seen the specifics. But on Monday, the Senate Judiciary Committee voted 13-5 to move the reforms forward, after reviewing nearly 300 proposed amendments to the legislation. The legislative proposal is now expected to hit the full Senate early next month and Republican Minority Leader Mitch McConnell (R-KY) has said that he will not block the measure from reaching the floor. Notably, however, a series of measures proposed by Senator Patrick Leahy (D-VT) will not be part of the debate.

Leahy’s amendment proposed that we treat same-sex couples equally when it comes to sponsoring a foreign-born spouse or partner for a visa. Leahy stated of the current system, “…it means that if you are an American and fall in love with someone of the same sex from a different country and get married, your spouse will not be treated like any other immigrant spouse would be by your federal government.”

Yet Leahy’s proposal quickly drew criticism from both sides of the aisle. Conservative Republicans expressed deep disagreement with making the rights of same-sex couples part of the debate. Pragmatic Democrats who agree in principle with Leahy feared, quite rightly, that such a measure would prove toxic in terms of gaining conservative support for the immigration reform package as it makes its way through Congress this summer.

What is striking about the comprehensive bill is that it needs to do more than simply pass the Senate, which it likely will at this point. It needs to pass the Senate with an overwhelming amount of support if it is to gain traction in the significantly more partisan and divided House of Representatives. Leahy’s measure would have made that nearly impossible. This is something which Leahy, an astute political observer, knew and which he openly admitted in withdrawing his amendments.

However, this issue will not merely fade away. Federal immigration policy tends to lag behind policy shifts made at the state level and even other areas of national policy. For instance, until 2010, the United States was one of only 12 countries that had a blanket long-term immigration ban against individuals with HIV/AIDS. The measure had been enacted in the 1980s, at a time when we still understood very little about the disease, it was widely associated with the gay community, and treatment options were virtually non-existent. By the time we changed our policy, we were in the company of countries such as Saudi Arabia and Yemen.

In the event that this immigration reform proposal becomes law, still a very uncertain prospect, it will be significantly out of synch with policy changes occurring at the state level. More and more states are recognizing the rights of same-sex couples and institutionalizing same sex marriage, Maine included. Yet immigration policy at the federal level will not reflect any of these changes. Such a disjuncture between federal immigration policy and evolving state level definitions of the equality of sexual minorities sets in motion what will, at best, be a confusing process of navigating very different definitions of legality and rights.

Yet, it’s more than simply the practical complications. As Leahy eloquently stated in withdrawing his amendments: “The experience of Americans torn apart from the love of their lives by our current immigration system is heart-breaking. I have been married for more than fifty years and cannot fathom how I would feel if my government refused to recognize our union or if the law discriminated against me based on who I fell in love with more than five decades ago.”

Achieving comprehensive immigration reform this summer may depend on taking this issue off the table. However, that should only be a temporary respite in the broader struggle for LGBT rights at the national level.

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