Immigration and gay marriage are on a collision course in the Senate, where Democratic Sen. Patrick Leahy introduced an amendment on Tuesday that would allow gay couples to sponsor their spouse for a green card. Its chance of succeeding remains a long shot, which raises the stakes on an expected Supreme Court decision this month that could effectively accomplish the same goal.
“Seeking equal protection under our laws for the LGBT community, is the right thing to do,” the Vermont senator said in a statement on his amendment.
Leahy's amendment is aimed at ending what equality advocates consider one of the most devastating effects of the Defense of Marriage Act, which prevents the federal government from recognizing gay marriages even if they were performed in states where it's legal. Because immigration is handled at the federal level, gays and lesbians who marry a foreign national have no way to sponsor them for legal permanent residency in the United States, a routine process for straight couples. As a result, many gay couples are forced to live abroad.
One well-known DOMA victim is the Guardian columnist behind the NSA surveillance scoop, Glenn Greenwald, who lives in Brazil because he can't obtain a visa for his husband. Another is former Republican Congressman Jim Kolbe, who testified before the Senate in April about his forced separation from his Panamanian fiancee while he tried to obtain a visa through alternate means.
This is the second time this session that Leahy introduced the amendment. The first time was in the Judiciary Committee that Leahy chairs, which voted to advance the immigration bill to the Senate floor last month. Its fate doesn't bode well for the latest version.
Leahy made a passionate argument on behalf of gay rights while the committee examined the issue, but Republicans sponsoring the immigration bill--all of whom oppose gay marriage--threatened to pull their support if the amendment passed. So did pro-immigration religious leaders helping to sell grassroots conservatives on the bill. Afraid of blowing up a fragile bipartisan coalition, Leahy decided "with a heavy heart" not to bring the amendment up for a vote, although he pledged to "continue to fight for equality."
While a bare majority of senators support marriage equality, including some Republicans, getting to 60 votes is likely a tough slog. Democrats in the Gang of Eight immigration group are strong supporters of gay rights, but they would face strong pressure from their Republican co-sponsors to vote against it or risk killing their legislation right as it nears the finish line. And even if it does pass, the odds of the conservative GOP-led House signing off on it are astronomically low.
Jessica Brady, a spokeswoman for Leahy, told msnbc that he had not decided whether he'll bring his amendment up for a vote, but that by filing it now he preserves the option to do so later.
"He said he'd continue to fight," she said. "He didn't specify when and where."
Fate of DOMA looms at Supreme Court
Even if it doesn't come to the floor, bi-national gay couples aren't necessarily doomed to legal limbo on immigration. The Supreme Court is expected to rule this month on whether DOMA is constitutional, and court watchers believe there's a decent chance they'll overturn the section of the law that bars gay couples from green cards.
"It looks like the Senate and the Supreme Court are in a bit of a race to see which gets across the finish line first," Steve Ralls, a spokesman for LGBT advocacy group Immigration Equality, told msnbc Wednesday.
According to Ralls, his group sees Leahy's amendment as "insurance" in case DOMA is upheld.
"If we have a bad court ruling, Senator Leahy's amendment becomes absolutely critical," he said.
Leahy, for his part, has expressed hope that he can get the Senate to vote on his amendment before the Supreme Court weighs in--if only only to make the Congressional record look a little less embarrassing to future historians.
“I wonder if our grandchildren will look back on this day in the same way we look back upon the miscegenation laws of 40 years ago and we ask, how could the Supreme Court even have had to decide the matter of Loving v. Virginia?" Leahy said in a May 21 hearing. "Why were those laws even on the books and respected and upheld where the Congress should have spoken up?"