When the Supreme Court struck down a key portion of the Defense of Marriage Act on Wednesday, it also solved one of the thorniest dilemmas facing Congress: whether and how to give same-sex couples access to immigration benefits.
Before the Supreme Court acted, roughly 36,000 American citizens were specifically barred from applying for green cards for their same-sex spouses. But following the ruling, Secretary of Homeland Security Janet Napolitano confirmed that any legally valid marriage of a U.S. citizen would be recognized for immigration benefits. If immigration reform passes Congress, same-sex couples will automatically be covered by the new law without any extra debate or amendments.
“I think there is bipartisan relief today that the court resolved the issue,” says Steve Ralls, spokesman for Immigration Equality, a group advocating for binational same-sex couples. “I have no doubt that both Democratic and Republican senators are glad the court fixed this issue before the Senate had to take another vote on it.”
The issue had pitted two of the Democratic Party’s most important constituencies against each other, with LGBT advocates seeing the immigration debate as a crucial vehicle to move marriage equality forward, but immigration advocates seeing gay marriage as someone else’s battle, or at least a fight for another day.
The debate was becoming so volatile that an amendment from Sen. Patrick Leahy (D-VT) to give same-sex couples immigration benefits nearly torpedoed the entire bill in the Judiciary Committee this year. As Leahy moved to vote in the committee, the most liberal Democrats on the panel implored him not to bring more controversy to the immigration debate than it could bear.
“We know this is going to blow the agreement apart, and I don’t want to blow this bill apart,” Sen. Dianne Feinstein (D-CA) said at the time. Sen. Chuck Schumer (D-NY) called the choice between marriage equality and immigration reform “excruciating,” but told Leahy he could not be with him in the fight this time. Sen. Dick Durbin (D-IL) said the Leahy amendment was the “wrong moment and the wrong bill.” Leahy pulled his amendment at the time, but brought it back to the Senate as the immigration-reform debate heated up.
Moments after the Supreme Court’s DOMA ruling Wednesday, Leahy went to the Senate floor to say he considers the matter closed.
“It was very difficult for Democrats who care about both marriage equality and comprehensive immigration reform.”
“As a result of this welcome decision, I will not be seeking a floor vote on my amendment,” Leahy said, prompting a nearly audible sigh of relief from immigration advocates, who were desperately hoping that Leahy would abandon his plans to force a vote on his amendment by the full Senate.
“I think today’s decision helped address an issue that a lot of Democrats were struggling with,” said Sharita Gruberg, a policy analyst for the LGBT Immigration Project at the Center for American Progress. “I think it was very difficult for Democrats who care about both marriage equality and comprehensive immigration reform.”
While the Senate is expected to pass the immigration bill easily, the House, as usual, is a different story. But an aide close to the House immigration negotiations said that while the court’s DOMA decision (and its application to same-sex immigrant couples) will stoke opposition among people already dead set against immigration, it would smooth the overall effort to pass reform.
“Other than giving conservatives a reason to hate it more, having DOMA decided by the court this way takes the pressure off the House to do same-sex immigration,” the aide said.
Sure enough, a House press conference to decry the DOMA decision also featured the strongest leaders against immigration reform, with everyone from Reps. Louie Gohmert to Michele Bachmann warning that the DOMA decision signaled the end of times. The same Republicans all have gone on the record multiple times opposing “amnesty” for undocumented immigrants.
But conspicuously absent from that press conference, and from the conversation entirely on Wednesday, were moderate Republicans who have signaled their openness to immigration reform but not to marriage equality. Those are the votes that immigration-reform advocates say they need and that would have been put in danger had the Leahy amendment passed the Senate.
Just after Leahy announced he would pull his amendment, Sen. Marco Rubio (R-FL) took the floor to say that he understood conservative opposition to the immigration legislation, but reiterated the reasons he believes it’s still the right thing to do.
As he spoke, Rubio talked about the strength of America and the reality of the American dream, but made no mention of the DOMA decision and its significant effect on binational same-sex couples and their families. Because the Senate will not vote on the issue, he may never.
Rubio is learning now what his Senate colleagues have known all along—that the easiest vote in Congress is the one you never take.