The Supreme Court decision that overturned a denial of federal benefits for married gay couples removed a contentious issue in Congress’s immigration debate by giving foreign-born spouses of gay U.S. citizens the same rights as those in traditional marriages.
Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, on June 26 decided not to press forward with an amendment guaranteeing that right from a broad rewrite of immigration law that passed the Senate yesterday on a 68-32 vote. Some Republican senators, including Marco Rubio of Florida and Lindsey Graham of South Carolina, said Leahy’s proposal would have imperiled passage of the measure.
“It appears that the anti-discrimination principle that I’ve long advocated will apply to our immigration laws and to bi-national couples, and their families can now be united under the law,” Leahy said on the Senate floor.
Rubio and Graham joined 12 Republicans who voted yesterday for the immigration bill, with all 54 Democrats in the chamber. The measure would offer 11 million undocumented immigrants a path to citizenship, revise visa laws for employees in technology, agriculture and other businesses and increase border protection. It includes $46 billion to secure the U.S. border with Mexico.
The Supreme Court on June 26 concluded, in a 5-4 vote, that the 1996 Defense of Marriage Act violated the Constitution. Republicans who oppose gay marriage said they would now take the fight on the issue to the states.
“While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances,” House Speaker John Boehner, an Ohio Republican, said in a statement. “A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”
As the immigration law debate shifts to the Republican-run House, some senior Republicans said an extension of permanent legal residency to gay couples won’t be a big part of the House deliberations.
“I don’t think it will be a major factor,” said Representative Tom Cole, an Oklahoma Republican. “There’s already enough controversy around the bill and it’s now in effect becoming a state issue.”
Graham predicted that equal treatment for married gay couples won’t emerge as a significant issue in the broader immigration debate, though many House Republicans were angered by the Supreme Court ruling boosting gay rights.
“It means that Congress is limited by the court decision, and you can’t blame anyone in Congress,” Graham said in an interview. “If you don’t like the decision, blame the court. It’s the law of the land.”
The high court’s decision opens the door immediately for many gay couples to apply for a green card if the foreign spouse is documented. Those couples must reside in the 12 states and the District of Columbia where same-sex marriages are legal. California is set to become the 13th state after a separate Supreme Court ruling this week.
In 2010, there were about 40,000 same-sex couples in the U.S. who would have been eligible to use immigration mechanisms available to different-sex spouses, according to the Williams Institute, a University of California at Los Angeles Law School research group that follows sexual-orientation law and public policy. About a quarter of those were living in California.
Gay-rights advocates say they’ll monitor the House debate as they want a final immigration law to include green-card eligibility for same-sex spouses among the 11 million undocumented residents already in the U.S. They would be eligible for permanent legal residency under the Senate measure.
“Without a foothold in the immigration system to start with, the Supreme Court decision doesn’t change your situation,” said Rachel Tiven, executive director of Immigration Equality, a Washington-based group seeking same-sex benefits under immigration law.
The Williams Institute estimates there are about 267,000 individuals who identify themselves as lesbian, gay, transgender or bisexual among the adult undocumented immigrant population.