Love, honour and abeyance

The Obama Administration has decided to leave legally married gay and lesbian bi-national couples in legal limbo while the federal “Defense [sic] of Marriage Act” (DOMA) moves toward inevitably being declared unconstitutional by the US Supreme Court. That’s the short version of a story currently stirring up the liberal/progressive and GLBT blogosphere. In fact, nothing has changed.

Andrew Harmon reported exclusively for Advocate.com that administration officials met with GLBT advocates in late January and told them that it will not put the Green Card (permanent residence) applications of the foreign same-sex spouses of American citizens “in abeyance” (which means, basically, put them aside until the fate of DOMA is determined), as GLBT advocates and our Congressional allies have urged.

Under US law, a legally married US citizen can sponsor his or her spouse for permanent residence. However, DOMA makes it illegal for the federal government to recognise legally-married same-sex marriage for any federal purpose, and that includes immigration. So, a straight person legally married in, say, Iowa, can sponsor his or her opposite-sex spouse for a Green Card, but a gay person also legally married in Iowa to someone of the same gender cannot.

Last year, US Attorney General Eric Holder announced that the Obama Administration would no longer defend Section 3 of DOMA against any of the numerous lawsuits challenging its constitutionality. Just yesterday, Judge Jeffery White of the District Court for the Northern District of California (a Bush appointee, by the way), ruled that DOMA is unconstitutional, the first such ruling since Holder’s announcement.

The argument to the administration was that since it views DOMA as unconstitutional and will not defend the law, it could hold the Green Card applications in abeyance. The advocates argued that while DOMA prevents the administration from approving such applications, they’re not required to reject them in order to enforce the law until it’s gone. The administration was not persuaded.

What all of this means is that unless the foreign-born spouse in a legally-married same-sex couple qualifies for a Green Card some other way, or can obtain a sponsored work visa, they cannot legally work in the US or do any number of day-to-day things that permanent residents can do—like remain in the US indefinitely. Naturally, this puts bi-national couples under added pressure, especially financial. Also, since available visas are usually short-term, the foreign-born spouse must leave the US periodically to renew the visa, something that puts even more financial pressure on the couple, as well as added emotional strain. All because of one blatantly unconstitutional law.

Some of the GLBT advocates at the meeting said this was an election-year political decision by the administration. I’m not so sure. The right already hates President Obama regardless of what his administration does or doesn’t do. The left will be angry at the administration (again) and the centre won’t have any idea it’s even happening. I think a more likely explanation is that this is because of the overly-cautious nature of this administration, something that, quite frankly, frustrates the crap out of me.

But let’s keep this in perspective: This decision isn’t the same as resuming deportation proceedings against same-sex foreign spouses of gay and lesbian US citizens, which are currently not prioritised. An important thing to remember about that is that deportation is only done to foreign nationals who are in the US illegally—that is, people in the country without a Green Card or other visa: People who are in the US legally don’t face deportation. I’m not sure we really want to defend illegal immigrants for being illegal, and instead we should stick to the narrower issue that the reason their status is illegal is because of a bigoted and unconstitutional law.

It’s also important to note that the administration is not defending DOMA, which will help speed up its inevitable demise, making a rule change easy to do. Just this week they announced they also won’t defend DOMA’s barring of military benefits to same-sex spouses of serving personnel. President Obama’s order that hospitals receiving federal funds have to allow visitation by the same-sex partners of gay people was another attempt to get around some of the more odious problems caused by DOMA. And, it’s important to remember that no matter how awful the law is, any president has a constitutional duty to enforce it until it’s either repealed or the Supreme Court declares it unconstitutional.

So, nothing really changes for same-sex bi-national couples—they can continue as they are. They could also split up, or, they could move to another, more progressive country (as I did). Either of these last two options would be fine with any of the leading Republican candidates for president—in fact, they’d probably encourage them. The reality is, only the re-election of President Obama, along with strong Democratic majorities in the US Congress, will bring any chance to fix this situation permanently. Bad as the situation is, it would become far worse with Republicans in power.

So, no screaming headlines here, no hysterical overreaction, but an acknowledgement that a bad situation is still bad, but certainly no worse. It could get better after the next election, or far, far worse. That part is entirely up to us.