By Alexander Bolton - 05/12/13 06:45 PM EDT
Gay-rights groups want President Obama to offer more support to immigrants in same-sex marriages who face a tougher path to legal status than their heterosexual counterparts.
If Obama were to forcefully advocate for equal treatment of same-sex couples under immigration law, it would put more pressure on Senate Democrats to attach an equal-rights amendment covering lesbian and gay couples to immigration reform legislation.
While Obama backs equal treatment of same-sex couples, he could do much more to advocate for two controversial amendments sponsored by Senate Judiciary Chairman Patrick Leahy (D-Vt.), gay rights groups argue.
Republican members of the Senate Gang of Eight, which crafted the bill, warn Leahy’s amendment are poison pills that would wreck the bipartisan coalition of support.
Sen. Charles Schumer (D-N.Y.), the lead author of Senate immigration reform legislation and a co-sponsor of Leahy’s Uniting American Families Act, which would extend equal immigration treatment to long-term same-sex couples, admitted Thursday the issue gives him trouble sleeping.
One of Leahy’s amendments would implement the Uniting American Families Act; the other would exempt immigration law from the 1996 Defense of Marriage Act.
Gay-rights groups have successfully pressed the White House to slow deportations of immigrants in same-sex marriages with American citizens, even though Congress remains stymied on the issue.
In the fall of last year, Homeland Security Secretary Janet Napolitano announced that illegal immigrants in such partnerships with would be given low priority cases for deportation.
Advocacy groups such as The DOMA Project and Human Rights Campaign have also pushed the administration to hold off on processing the green-card applications of immigrants married to U.S. citizens of the same sex until the Supreme Court renders a verdict on DOMA. Advocates argue the applications should not be rejected until the law’s fate is clear.
Gay-rights groups have had less success on that front. While the administration has agreed to delay consideration of green-card applications from immigrants in same-sex marriages on a case-by-case basis, it has declined to adopt a broad policy of putting those applications in abeyance, according to activists.
The DOMA Project has also asked the administration to consider same-sex marriage to a U.S. citizen as a condition that would warrant U.S. Citizens and Immigration Services granting temporary legal status to someone who is otherwise inadmissible to the country.
Lavi Soloway, a leader of The DOMA Project, said it “is very difficult to persuade administrative agencies or the administration itself to solve all of these problems with the administrative remedies.”
The administration has made clear there is little it can do to help immigrants in same-sex marriages as long as the Defense of Marriage Act stands, putting the ball in Congress’s court.
“Pursuant to the Attorney General’s guidance, the Defense of Marriage Act remains in effect and the Department of Homeland Security will continue to enforce it unless and until Congress repeals it, or there is a final judicial determination that it is unconstitutional,” said Marsha Catron, a spokeswoman for the Department of Homeland Security.
“It was a huge breakthrough when they created priorities for deportation that gave relief to same-sex bi-national couples,” said Cobb. “I think we still struggle with getting an abeyance on green-card denials but I would not say the administration is not working with us. They are not defending DOMA in court and DOMA is the real problem here.”
There has been some speculation that Obama could extend equal treatment to same-sex couples under immigration law through an executive order. During the 2012 campaign, Obama announced his administration would halt deportation proceedings of immigrants who came to the country illegally at a young age — those covered by the Dream Act.
“Ask the White House,” said Schumer when asked about the likelihood of an executive order.
Michael Cole-Schwartz, a spokesman for Human Rights Campaign, said an executive order to circumvent DOMA is unlikely.
“The Immigration and Nationality Act defines who is eligible for family-based immigration. And, because of the Defense of Marriage Act, same-sex spouses are not eligible. The president cannot issue an executive order that would repeal DOMA or amend the INA.”
The Supreme Court is now considering a challenge to DOMA and Sen. Dick Durbin (D-Ill.) a member of the Gang of Eight has raised hopes that the court could strike it down and obviate the need for congressional action.
But gay-rights advocates say the court is not likely to hand down a decision before the Judiciary Committee finishes its markup of the bill before the Memorial Day recess. Soloway of The DOMA Project says Democrats should not miss an opportunity to chip away at DOMA through the immigration bill.
Leahy, in an interview with Univision Friday, showed little willingness to back down on the issue.
“Frankly, I’d like to get rid of all kinds of discrimination. Whether the votes are there or not. That’s something we have to determine,” he said.