The Gang of Eight’s immigration reform bill passed out of the Judiciary Committee on Tuesday without the inclusion of LGBT rights amendments. Seen as a threat to the entire bill’s passage, Democratic Sen. Patrick Leahy (Vt.) reluctantly withdrew the amendments from the final bill.
Under current law, LGBT Americans cannot confer citizenship to their partners in the same way heterosexual couples can. The Defense of Marriage Act (DOMA) prevents granting green cards to same-sex couples because it defines marriage as between one man and one woman. The Williams Institute estimates there to be 32,300 same-sex binational couples and half of them have children meaning these families could be torn apart without Leahy’s LGBT amendments. Even worse, LGBT non-citizens could be deported back to countries where homosexuality is a crime. However, the Department of Homeland Security has exercised prosecutorial discretion to prioritize the deportation of criminals rather than same-sex partners.
The White House’s initial proposal urged lawmakers to guarantee LGBT couples the same rights as heterosexual couples, but later indicated they would accept a bill without this protection. Leahy’s first amendment would have extended automatic green card privileges to foreign-born partners of LGBT Americans. His second amendment would have recognized same-sex marriages for immigration purposes only, making the first amendment unnecessary. However, these amendments received limited Republican support and according to Sen. Jeff Flake (R-Ariz.) would be a "dealbreaker" for most Republicans. Leahy may bring up his amendments again before the full Senate, but it would be entirely symbolic since it would have no chance of winning the 60 votes needed for the bill’s passage.
If DOMA is struck down by the Supreme Court later this year, this issue may ultimately be moot because the federal government would have to recognize same-sex marriages in states where they are legal. LGBT Americans could then sponsor their spouses for citizenship. However, overturning DOMA would have no effect on couples in civil unions or domestic partnerships who would like to have their partner apply for citizenship. They would still have to travel to a state with legal same-sex marriage to receive the same benefits that heterosexual couples have. But the Supreme Court may not necessarily strike DOMA down and instead find that its defenders have no standing. Thereby, DOMA would only be unconstitutional in the area where the Appeals Court had originally struck it down (essentially Connecticut, New York, and Vermont).
Although Republicans are seemingly coming around on immigration reform to gain Hispanic voters, they seem to be unwilling to budge on LGBT rights despite popular support for it among youth voters. Continued hostility to LGBT protections could amplify Republican’s isolation from millennials and may pose electoral dangers in the future. Voter backlash could be mitigated if DOMA is ruled unconstitutional and LGBT Americans end up receiving these immigration rights without having to rely on Congressional support. They may not be so lucky next time, and Republicans should follow the lead of Senators like Rob Portman (R-Ohio), who supports same-sex marriage. Further commitment to anachronistic and discriminatory social values will be seen as an embarrassment to future generations.