Filed under: DOMA trials
By Scottie Thomaston
The Senate Judiciary Committee on Tuesday rejected pro-LGBT amendments to the “comprehensive” immigration reform bill, and as EqualityOnTrial noted yesterday, four Democrats also opposed inclusion of the amendments. Activists reacted with anger to the exclusion, with some suggesting they were shocked. The amendments were an attempt to protect members of binational same-sex couples from facing deportation, because the federal Defense of Marriage Act bars recognition of legal same-sex marriages and sponsorship of spouses relies on the definition imposed by DOMA.
The chairman of that committee, Senator Leahy (D-VT) had introduced two pro-LGBT amendments: one is the Uniting American Families Act (UAFA), which would create the category of “permanent partner” in immigration laws as a way to reduce some of the effects of DOMA. The classification of permanent partner would have imposed most of the same requirements as marriages: the couple would have to be in a committed relationship, couldn’t be underage or blood relatives, and couldn’t be married or in a permanent partnership with anyone else. UAFA carves out an exception to DOMA: DOMA would remain the law until repealed or struck down by the Supreme Court, but same-sex binational couples could escape deportation.
The other amendment is a different type of workaround. It would add a section to the Immigration and Nationality Act providing that a marriage will be recognized as legal if it is legal where it was performed. This wouldn’t create any new categories, it would just ensure that the federal government relies on state law definitions for immigration purposes.
Neither amendment was included in the bill by the committee, but yesterday Greg Sargent reported in the Washington Post that Democratic aides are saying that the amendments may be reintroduced after the immigration bill reaches the floor of the Senate. The report suggests that the amendments may reappear in time to coincide with the Supreme Court’s eventual ruling in United States v. Windsor, Edith Windsor’s constitutional challenge to Section 3 of DOMA. If the Court strikes down the law, it would make UAFA mostly inoperable. But this Court is unpredictable on social issues and any decision could hinge on Justice Anthony Kennedy’s vote. At oral argument he seemed most convinced that Section 3 of DOMA violates federalism principles, but most of the moderates seemed to find an equal protection holding more appealing while the conservatives disagreed with both. If the Court leaves DOMA intact, it’s hard to see how Congress would repeal it any time soon. The House is majority Republican and the Senate usually proceeds on the assumption that 60 votes will be required due to obstruction.
Introducing the amendments right before the Court’s ruling could change the conversations over LGBT inclusion: if Section 3 of DOMA is struck down, the amendments would be seen as largely unnecessary, but if it’s upheld and the amendments aren’t included in the bill, same-sex binational couples will not get any relief from this immigration reform package. Interestingly, Sargent’s piece suggests that Democrats actually want to force the issue:
And so, if Dems wait until the DOMA decision comes down, they could find themselves without any real need to push the LGBT issue in the immigration reform debate. At the same time, though, this is a fight Democrats — and the White House – want to have, for substantive and political reasons. So they may introduce the amendments before the DOMA decision comes down — forcing a public battle with the GOP over gay rights.
That would theoretically gin up the right wing base, forcing Republicans to rail against — and vote against — the simple act of extending a bill many of them support, i.e., immigration reform, to cover gay married couples, too. That would again reveal the GOP’s unwillingness to evolve on gay marriage along with the rest of the country, at a time when even some Republican officials and strategists are urging the party to develop a more tolerant and inclusive aura, something that is being made impossible by the refusal of most Republican voters to accept the inevitable.
It’s a bigger challenge to get the amendments in the bill on the floor, of course. It will take 60 votes for the Senate to include the amendments on the floor, whereas if the committee had included it, Republican opponents would have needed 60 votes to strip the amendments on the floor. If there’s a serious push, it may happen, but if it’s just to “forc[e] a public battle with the GOP over gay rights” then inclusion of the amendments would ultimately be more about discussing the issue of LGBT inclusion and less about doing the work to include LGBT people. The Court’s ruling, expected by late June, may be a critical factor in Congress’ decision.
By Scottie Thomaston
- The biggest news of the week is yesterday’s action in the Senate Judiciary Committee, where most Democrats joined all Republicans to oppose inclusion of the Uniting American Families Act (UAFA), a compromise pro-LGBT bill that would have allowed binational married couples of the same sex to remain in the United States together, in the “comprehensive” immigration bill. Jacob covered it today, and linked to lots of commentary. Earlier this month, immigration attorney Lavi Soloway explained UAFA and the potential effects of an eventual repeal or court decision striking down DOMA. He pointed out that simply getting rid of DOMA would not fix the situation.
- LGBT activists react angrily to the lack of LGBT inclusion in immigration.
- What’s next in the marriage fight?
- A poll in Tennessee shows that 62 per cent of people in the state think gays and lesbians and their partners should get health and other work-related benefits, and also shows that 49 per cent support some sort of relationship recognition for same-sex couples.
- Last week, President Obama gave a commencement address at Morehouse College that included pro-LGBT remarks. The video is here.
- Freedom to Work has filed a discrimination complaint against Exxon Mobil in Illinois.
By Scottie Thomaston
On Friday, Judge Consuelo B. Marshall, a federal district court judge for the Central District of California, heard arguments in Cooper-Harris v. USA, a military servicemember’s challenge to Section 3 of the Defense of Marriage Act (DOMA). In February, the judge had denied attempts to halt the proceedings by the Bipartisan Legal Advisory Group, the Republican-led House legal group defending the law in court, and to dismiss the case entirely, a position taken by the Justice Department, who argued that federal district court was the wrong place to hear challenges related to military benefits. Since the judge ruled the case should continue, arguments were scheduled. The case is one of the few still going on while the Supreme Court deliberates over the issue of Section 3 of DOMA’s constitutionality in United States v. Windsor. Another challenge, related to DOMA’s effects on binational couples in the immigration context, had been put on hold in April.
In the Cooper-Harris case, which was filed by the Southern Poverty Law Center, a written opinion is expected, since the judge did not issue one from the bench after the arguments. This hearing was on motions for summary judgment on the merits of the constitutionality of DOMA and the other military-related law at issue.
Cooper-Harris is a veteran who was diagnosed with multiple sclerosis, and the VA ruled that it was acquired likely as a result of her service. If she were in an opposite-sex marriage she would be entitled to seek spousal benefits, but she is in a legal same-sex marriage and Section 3 of DOMA bars the federal government from recognizing the marriage. Another federal statute related to military benefits is also challenged in the case: it defines marriage as opposite-sex only.
The SPLC issued a statement after the arguments:
A federal court in California today heard arguments from SPLC attorneys challenging the Defense of Marriage Act (DOMA) and Title 38 – statutes that prevent the U.S. Department of Veterans Affairs (VA) from granting equal benefits to gay and lesbian veterans and their spouses.
The case, Tracey Cooper-Harris v. USA, is the only challenge to DOMA that is proceeding at the same time that the U.S. Supreme Court considers the statute’s constitutionality.
It will be the first case to decide whether married gay and lesbian veterans and their spouses should receive the same benefits as their heterosexual counterparts. The judge did not issue a ruling at today’s hearing.
“Today we asked the court to declare these laws unconstitutional so that the federal government can honor Tracey’s service and Maggie’s sacrifice by providing them the same benefits other married veterans and their spouses routinely receive,” said Caren Short, staff attorney for the SPLC. “Our nation has a proud history of honoring service members and their families for their sacrifices. All who have served honorably must be treated fairly by our government when their service is complete.”
The Supreme Court’s decision in Windsor is expected at the end of June, so it’s possible that Cooper-Harris could be decided, if only in district court, before the Supreme Court says anything about the constitutionality of Section 3 of DOMA.