The Defense of Marriage Act and Undocumented Immigrants
A Double Disadvantage for Binational Families
SOURCE: AP/Jacquelyn Martin
When Pulitzer Prize-winning journalist Jose Antonio Vargas “came out” as undocumented in a major New York Times Magazine piece in June 2011, his revelation shocked the nation and became the focal point for a conversation on the plight of unauthorized immigrants in the United States. But this was not Vargas’s first coming out experience. Vargas identifies as gay and initially came out when he was a teenager. Vargas is not alone in this experience of coming out twice in his life; those like Vargas who are both undocumented and gay* face a significant barrier to legal status and family reunification. The Defense of Marriage Act, or DOMA, is that barrier. Only by repealing DOMA or by passing legislation like the United American Families Act, or UAFA, which would allow Americans to sponsor their permanent partners for residency, can we guarantee that all immigrant couples are treated equally under the law.
Our broken immigration system and DOMA work together to discriminate against those who identify as both undocumented and gay. The act explicitly defines marriage as between “one man and one woman,” which effectively bars gay transnational couples from having their marriages recognized, and as such, from the right to family reunification. This law places those who are both undocumented and gay at a double disadvantage; they face limitations as undocumented individuals and are also unable to take advantage of family reunification policies that are open to other, heterosexual immigrants.
Family reunification should not be a privilege exclusively enjoyed by heterosexual couples, but effectively is that way because DOMA subjugates the relationships of thousands of same-sex couples with mixed citizenship statuses. Family reunification is one of the three principles—the other two being employment and refugee protection—upon which U.S. immigration policy is based, and under current policy there is no numerical limit on the number of green cards available for immediate relatives (spouses, parents, and minor children) of U.S. citizens.
Despite many binational same-sex marriages being legally recognized under state law, DOMA denies any legal recognition of their marriage at the federal level. Because the act, like immigration law, is a federal issue, when applied within the context of immigration, same-sex couples are prohibited from the same right to family reunification that heterosexual couples are granted. And the numbers in question are not trivial: As of 2010 there were an estimated 28,574 binational same-sex couples, where one partner is a U.S. citizen and the other is not, in the United States. Of those binational couples, nearly a third (32 percent) are raising children.
The growing number of states that recognize same-sex marriage is evidence of our country’s shifting consciousness of gay rights, with the majority of Americans now supporting marriage equality and recognizing that same-sex couples should be afforded the same rights, responsibilities, and opportunities as heterosexual couples. Our national approach toward family unification and reunification should reflect this shift and be inclusive of both heterosexual and same-sex couples. If a man can petition for his female partner or spouse, or a woman can petition for her male partner or spouse to immigrate to the United States, it is unjust to deny the same opportunity to same-sex couples. Families headed by same-sex couples are barred from fully committing to each other under the law and therefore face the constant threat of family separation.
But while DOMA has been the law of the land since 1996, it is now being challenged both judicially and legislatively. This month a Filipina immigrant filed a lawsuit to fight for a legal right to stay in the United States based on her same-sex marriage to an American. Their lawsuit joins a growing choir of voices challenging DOMA, which has consistently been struck down by federal judges appointed by both Republican and Democratic administrations. For its part, the Obama administration likewise agreed with these judges when it also determined DOMA was unconstitutional, and hence announced that it would no longer defend the law in federal court. Given the success of these challenges, it is likely that the Supreme Court will address the constitutionality of DOMA in this upcoming term.
In addition to a possible judicial overturning of DOMA, congressional champions of equality in immigration have reintroduced the Uniting American Families Act, which would allow Americans to sponsor their permanent partners for residency and would extend family unification rights to gay couples. Congressional support for the Uniting American Families Act has steadily risen since its first introduction in 2007, and there are now a record-high 139 co-sponsors. Passing the act would be a strong step toward rectifying the bias ingrained into our immigration policy against same-sex couples and ensuring all people, regardless of sexual orientation, have a right to family unification.
Ultimately, to ensure all binational families have the opportunity to be together, DOMA must fall. Until that time, our country must live with an unfair immigration policy. In an interview with journalist and author Fareed Zakaria, Newsweek columnist Andrew Sullivan—himself a gay, married immigrant, who waited for years to get a green card and was unable to do so by virtue of his American-born spouse—expresses that “no American should have to choose between their spouse and their country,” yet our immigration policy and the Defense of Marriage Act present thousands of couples with this dilemma. It’s been said that love has no borders; it’s time that our national immigration policy truly reflected this outlook.
*In this column, the term “gay” is used as an umbrella term for people who identify as lesbian, gay, or bisexual.
Ariel Eure is an intern with the Immigration Team at the Center for American Progress.
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