UPDATE, 3/2: Gay binational couples are planning a lawsuit to challenge the constitutionality of DOMA.
Political calculations are aflutter in response to the Obama administration's claim that it would no longer defend the Defense of Marriage Act, the law that defines marriage as between a man and a woman. Here's one more: What does this mean for gay immigrants who are married?
As we explored in a 2010 cover story, "Worlds Apart," marrying a U.S. citizen is still the most common route to getting a green card in the United States. Yet because of DOMA, gay couples are left out; a gay American cannot sponsor his or her spouse to become a permanent resident. Left with no legal way to be with their loved one in this country, the undocumented partner might live in the shadows here, or the couples leave the United States all together.
Efforts to change this situation have tanked. The Uniting American Families Act,
which would allow "permanent partners" the same rights as spouses in
immigration law, has stalled in Congress for over a decade.
But Obama's new stance may change the game, says Steve Ralls, the spokesman for Immigration Equality, a New York and Washington-based non-profit that advocates for gay immigrants.
"The
question we have now is what new opportunities has the justice
department's position created?" Ralls says. "Has is created new avenues
for couples other than getting the [Uniting American Families Act]
through Congress? Those are conversations our legal staff is having
now."
Melanie Nathan, an attorney and gay rights blogger from
LezGetReal, suggested one possible avenue: a lawsuit.
A gay couple who
had their immigration petition rejected could sue the Department of
Justice for discrimination. Now, "the DOJ probably wouldn't defend
[DOMA]," Nathan says.
Ralls from Immigration Equality says a lawsuit challenging the immigration law would
"certainly be an option. I can't say that's the action we will take, but
it's on the list of possibilities."
Still, lawsuits like this are always a
long, onerous process, Nathan says: "Going through the judicial
system would take longer than the repeal of DOMA."
But Senator Dianne Feinstein is currently crafting a bill to respond to that. If DOMA is repealed, gay Americans would "presumably" be able to sponsor gay spouses for immigration status, Ralls says - with one caveat.
"They
would need to [live] in a state where marriage is recognized," he says.
So it would only help California-based couples who are currently
married.
New couples seeking to get married would have to move to another state that does recognize gay marriage in order to apply for
immigration benefits. Certainly, all the couples we interviewed were
either thinking about or they are already in the midst of relocating to gay couple-friendly Canada.
So what's a
move
to Vermont?
"I have no doubt there are couple that for the opportunity to sponsor
their partner for permanent residency would look at [moving] to a state
that would recognize [their marriage]," Ralls says.
Follow us on Twitter at @TheSnitchSF and @SFWeekly
