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Could the Senate still include LGBT binational couples in the immigration reform bill?

DOMA Repeal DOMA trials LGBT Legal Cases Marriage equality Marriage Equality Trials Windsor

By Scottie Thomaston

Supreme Court building
Supreme Court building

The Senate Judiciary Committee on Tuesday rejected pro-LGBT amendments to the “comprehensive” immigration reform bill, and as EqualityOnTrial noted yesterday, four Democrats also opposed inclusion of the amendments. Activists reacted with anger to the exclusion, with some suggesting they were shocked. The amendments were an attempt to protect members of binational same-sex couples from facing deportation, because the federal Defense of Marriage Act bars recognition of legal same-sex marriages and sponsorship of spouses relies on the definition imposed by DOMA.

The chairman of that committee, Senator Leahy (D-VT) had introduced two pro-LGBT amendments: one is the Uniting American Families Act (UAFA), which would create the category of “permanent partner” in immigration laws as a way to reduce some of the effects of DOMA. The classification of permanent partner would have imposed most of the same requirements as marriages: the couple would have to be in a committed relationship, couldn’t be underage or blood relatives, and couldn’t be married or in a permanent partnership with anyone else. UAFA carves out an exception to DOMA: DOMA would remain the law until repealed or struck down by the Supreme Court, but same-sex binational couples could escape deportation.

The other amendment is a different type of workaround. It would add a section to the Immigration and Nationality Act providing that a marriage will be recognized as legal if it is legal where it was performed. This wouldn’t create any new categories, it would just ensure that the federal government relies on state law definitions for immigration purposes.

Neither amendment was included in the bill by the committee, but yesterday Greg Sargent reported in the Washington Post that Democratic aides are saying that the amendments may be reintroduced after the immigration bill reaches the floor of the Senate. The report suggests that the amendments may reappear in time to coincide with the Supreme Court’s eventual ruling in United States v. Windsor, Edith Windsor’s constitutional challenge to Section 3 of DOMA. If the Court strikes down the law, it would make UAFA mostly inoperable. But this Court is unpredictable on social issues and any decision could hinge on Justice Anthony Kennedy’s vote. At oral argument he seemed most convinced that Section 3 of DOMA violates federalism principles, but most of the moderates seemed to find an equal protection holding more appealing while the conservatives disagreed with both. If the Court leaves DOMA intact, it’s hard to see how Congress would repeal it any time soon. The House is majority Republican and the Senate usually proceeds on the assumption that 60 votes will be required due to obstruction.

Introducing the amendments right before the Court’s ruling could change the conversations over LGBT inclusion: if Section 3 of DOMA is struck down, the amendments would be seen as largely unnecessary, but if it’s upheld and the amendments aren’t included in the bill, same-sex binational couples will not get any relief from this immigration reform package. Interestingly, Sargent’s piece suggests that Democrats actually want to force the issue:

And so, if Dems wait until the DOMA decision comes down, they could find themselves without any real need to push the LGBT issue in the immigration reform debate. At the same time, though, this is a fight Democrats — and the White House – want to have, for substantive and political reasons. So they may introduce the amendments before the DOMA decision comes down — forcing a public battle with the GOP over gay rights.

That would theoretically gin up the right wing base, forcing Republicans to rail against — and vote against — the simple act of extending a bill many of them support, i.e., immigration reform, to cover gay married couples, too. That would again reveal the GOP’s unwillingness to evolve on gay marriage along with the rest of the country, at a time when even some Republican officials and strategists are urging the party to develop a more tolerant and inclusive aura, something that is being made impossible by the refusal of most Republican voters to accept the inevitable.

[emphasis mine]

It’s a bigger challenge to get the amendments in the bill on the floor, of course. It will take 60 votes for the Senate to include the amendments on the floor, whereas if the committee had included it, Republican opponents would have needed 60 votes to strip the amendments on the floor. If there’s a serious push, it may happen, but if it’s just to “forc[e] a public battle with the GOP over gay rights[]” then inclusion of the amendments would ultimately be more about discussing the issue of LGBT inclusion and less about doing the work to include LGBT people. The Court’s ruling, expected by late June, may be a critical factor in Congress’ decision.

1 Comment

  • 1. Still Hope for LGBT Inclu&hellip  |  May 24, 2013 at 2:56 pm

    […] is a great piece from Equality on Trial that explains the next steps for the immigration reform bill as well as connecting this issue with […]

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