DOMA DECISION A WIN FOR LGBT IMMIGRATION RIGHTS

Posted by NYC Immigration Attorney Norka M. Schell

Days before the Senate is expected to pass a sweeping immigration reform bill, bi-national same-sex married couples have cause to celebrate after the Supreme Court’s decision striking down the Defense of Marriage Act appeared to offer them equal treatment under U.S. immigration law.

Before today’s decision, an American was prohibited under DOMA from sponsoring a same-sex foreign national spouse for a green card. Practically, that meant that an American who married someone of the same sex from a different country was unable to bring their spouse to live legally in the United States as a heterosexual married person could.

But the court’s decision to strike down DOMA means those marriages must be recognized for immigration purposes, a relief for some backers of the comprehensive immigration reform bill --  which does not include language addressing immigration rights for same-sex couples despite heavy lobbying from LGBT groups.

In a statement Wednesday, Department of Homeland Security Janet Napolitano pledged to ensure that the ruling extends in practice to same-sex binational couples. 

"Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws," she said. 

LGBT rights groups had vowed to keep pushing for the inclusion of the language on the Senate floor if DOMA was upheld, pressure that could have frayed the delicate bipartisan coalition that has shepherded the immigration legislation through the Senate.

One of those groups' Senate champions, Sen. Patrick Leahy, D-Vt., confirmed Wednesday that he would not seek a floor vote on his amendment to the Senate immigration bill that would have recognized the marriages of same-sex couples under immigration law. 

A visibly emotional Leahy withheld that amendment during his panel’s mark-up of the immigration bill in May, citing GOP threats to spike the overall legislation if the measure was included.

“I do not believe we should ask Americans to choose between the love of their life and love of their country,” Leahy said at the time. “Discriminating against a segment of Americans because of who they love is a travesty and it is ripping many American families apart.”

During the June debate over the bill, key Republicans have continued to call the Leahy language a poison pill. 

“If this bill has in it something that gives gay couples immigration rights and so forth, it kills the bill. I'm done,” Sen. Marco Rubio of Florida, a key GOP supporter of the bill, said earlier this month.  Author of this article, Carrie Dann, NBC News.