DOMA and Immigration Reform: The Surprising Crossover


With the Supreme Court set to make a decision on two landmark cases on gay rights in the United States, many have shown their support by changing profile pictures, speaking up on Facebook and Twitter, and generally using every online forum and tool to support gay Americans. But there is an interesting impact of the case challenging the Defense of Marriage Act (DOMA), Windsor v. United States, that is often neglected in the discussion over "access to benefits" for gay couples.

Among the many rights denied to gay couples in our country under current law, gay Americans cannot sponsor their foreign-born spouses for permanent residency status. Generally, marriages that are validly entered into abroad or in the U.S. are accepted in all matters. Under DOMA, same-sex marriages are the exception.

There are numerous stories out there about how this policy is impacting real couples, These are couples who, every 90 days, have to part from one another and re-apply for temporary visas to gain access back to this country and back to their spouse. A heart-wrenching viral video circulated on Facebook a few weeks ago that captured this tale through the eyes of one couple and gave faces and names to an issue that plagues these cross-border spouses. Congress is aware of this impact. During the debate in the Senate over immigration reform, Senator Patrick Leahy offered an amendment to afford gay couples equality in immigration sponsorship regardless of the outcome of the Supreme Court decision. Bills attempting to address this gap have been introduced in various forms since 2000. The concept was feared as a policy that would derail immigration reform, in spite of the fact that the Obama administration issued guidance last fall that allowed for discretion in deporting same-sex partners of American citizens who pose no security risk, recognizing them as family members under prosecutorial discretion policies.

Legislative direction would erase the ambiguity of a what is essentially a deferred decision to uphold the letter of the law, and instead give a real answer to the couples who are in particularly precarious situations, relying on a visa renewal to remain together. A decision to strike down DOMA, though not the question raised in Windsor v. United States, would change the way same-sex couples are recognized under federal law and it is believed that the United States Citizenship and Immigration Services would no longer deny green cards to legally married same-sex couples as a result.

If the Supreme Court upholds DOMA, this sad circumstance persists for couples who are lawfully married but happen to be of different sexes and of different nationalities. It is not acceptable. In that case, for the sake of these couples and for all same-sex couples who face discrimination in this country under DOMA, Congress and the president must act. It is time, isn't it?