LGBT Advocates Wary as Senate Immigration Mark-Up Begins

Immigration Equality's Rachel Tiven speaks at a rally outside Senator Chuck Schumer's Midtown office on May  8.

Immigration Equality's Rachel Tiven speaks at a rally outside Senator Chuck Schumer's Midtown office on May 8.

As debate over immigration reform moves center stage in the US Senate — with the Judiciary Committee beginning mark-up this week of a comprehensive bill developed by a bipartisan group dubbed the Gang of Eight — advocates for couples in which one member is not an American citizen remain concerned they could be left out of the legislation as it moves forward.

More than 50 binational same-sex families descended on Capitol Hill the last week of April for visits with 150 members of Congress, and in the wake of that lobbying one top advocate voiced strong concern.

“I was troubled to hear some Democrats sound hesitant about LGBT inclusion,” said Rachel Tiven, the executive director of Immigration Equality, which works on issues facing LGBT and HIV-affected immigrants. “I think we have to ask a question of the Democrats who have been — especially of Democrats, who have been tripping over each other to espouse their support for marriage equality. When actual legislation is on the table, are they abandoning LGBT families?”

Binational couple seeking relief focus on reluctant Democrats, stage demo at Schumer’s Midtown office

The Gang of Eight’s bill as crafted in advance of the Judiciary Committee hearings failed to incorporate the Uniting American Families Act (UAFA), which would allow American citizens to bring their same-sex partners into the US on the same-terms that enable opposite-sex married spouses to gain permanent residency and citizenship. That legislation was originated by West Side Democratic Congressman Jerrold Nadler and is sponsored in the Senate by Judiciary Chair Patrick Leahy, a Vermont Democrat, after having initially been introduced by New York Senator Chuck Schumer.

Nadler has consistently pressed for UAFA to be part of immigration legislation — and has the support of the Congressional Hispanic Caucus on that point. When it became clear it would not be in the legislation coming out of the Gang of Eight, he said Leahy’s support for UAFA as Judiciary chair provided a firewall against efforts to exclude same-sex couples. On May 7 — the deadline for filing amendments to be considered by the committee — Leahy offered one incorporating UAFA’s language into the Gang of Eight bill.

Still, advocates remain nervous about the success of Leahy’s effort.

For Tiven, the situation confronts Democrats — who hold a 10-8 majority on the Judiciary Committee — with the challenge of proving that their unanimous endorsement of equal rights for same-sex couples is not merely “lip service.” Voicing support for gay and lesbian couples, she said, “is hollow if when push comes to shove you are not going to push for legislation.”

Despite the fact that Schumer, who sits on the Judiciary Committee, claims credit for originating UAFA in the Senate, he is one of the key players Immigration Equality and others worry about.

Ticking off senators she is watching carefully, Tiven said, “I am likewise concerned about Senator Schumer. Chuck Schumer has looked LGBT families in the eye and said he is committed to seeing Uniting American Families as part of the bill. He has asked for patience and he has gotten it. They want to know that he is with them and they don’t want to hear that his support is shaky. He has told families that Chairman Leahy will offer the amendment and he will support it.”

Emphasizing that advocates reject the notion that adding UAFA to the immigration bill would weaken it politically, she added, about Schumer, “We want him to say to his colleagues on both sides of the aisle what we believe to be true — that including LGBT families will strengthen immigration reform.”

As he has done consistently since January, Schumer reiterated his commitment to UAFA in April 26 comments to Gay City News.

“I believe strongly in UAFA and I’m going to do everything I can to get it into the bill,” he said.

Schumer declined to speculate on how that might be accomplished and, specifically, if an amendment in committee was the right way to go. He made no promise or prediction of success for those pushing UAFA.

In comments to reporters on May 8, the New York Democrat did not say whether he

Schumer was among the Gang of Eight, and UAFA was missing from its efforts from its first legislative outline released late in January. When President Barack Obama issued his own priorities for immigration reform a day later and included relief for same-sex binational couples, Arizona Senator John McCain, another Gang of Eight member, immediately responded that incorporating UAFA raised a “red flag.” His fellow Republican Gang member, Lindsey Graham of South Carolina, was so put off by the president’s proposal that he struggled to make a coherent critique, saying, “Why don’t we just put legalized abortion in there and round it all out?”

This week McCain and Graham remained hostile to efforts for including same-sex couples in immigration reform. According to, the Arizona Republican, on May 6, told reporters, “I’ll do everything in my power to see that it’s not there,” though he did not say definitively he would withdraw support for the reform bill if UAFA were added. Graham, however, said flatly, “It’ll kill the bill.”

Marco Rubio, a Florida Republican and a key member of the Gang of Eight in shaping the reform package, has been signaling for weeks his concern that GOP members of the House will push back against even the version of reform he, McCain, and Graham have endorsed. Such talk is widely seen as part of an effort to scare off any Democratic thought about liberalizing the bill in the Judiciary Committee. It is not clear that Democrats are yet ready — or will ever be — to call the GOP’s bluff.

Another Judiciary Committee Democrat whom Tiven had raised concerns about — California’s Dianne Feinstein — this week signaled she is prepared to support relief for same-sex couples, even if not UAFA itself. Feinstein, who is the lead sponsor of the Respect for Marriage Act, which would repeal the Defense of Marriage Act (DOMA) — the 1996 law that stands in the way of equal treatment of immigrant same-sex partners — has never signed on to UAFA, even as a stand-alone measure.

When queried by Gay City News several weeks ago, her office did not respond, but in comments May 6, according to Politico, Feinstein explained she was not comfortable with what she sees as UAFA’s loose definition of who would qualify as a permanent same-sex partner of an American citizen. She endorsed an alternative amendment to Leahy’s preferred option, requiring any binational couple seeking permanent residency for an immigrant partner to travel to one of the 11 states where they can legally marry. Leahy filed that amendment on May 7, as well.

Even with a pro-marriage equality majority on the Judiciary Committee and two alternative amendments that would provide relief for same-sex couples eligible for its consideration, advocates are taking nothing for granted. At a May 8 rally, Immigration Equality was joined by Santiago Ortiz and Pablo Garcia, a US-Venezuelan couple living in New York, and other binational gay and lesbian partners in a demonstration outside Schumer’s Midtown office. The Human Rights Campaign, meanwhile, is focusing its fire on McCain, Graham, and the other two Gang of Eight Republicans, warning that if they block same-sex inclusion in reform, “they should just own it and call it what it is: homophobia.”

Mark-up on the bill begins formally on May 9, and Leahy’s office has indicated votes on amendments will likely be taken on May 14, 16, and 20. With Congress in recess the week that begins on May 27, Memorial Day, the Judiciary Committee is aiming to complete action on the legislation no later than May 24.

Victory on the Senate side in providing relief for same-sex couples, of course, is likely less than half the battle. As Florida’s Rubio has warned, it is not yet clear whether the Republican-controlled House is on board for immigration reform, UAFA-inclusive or otherwise.

Meanwhile, the Supreme Court will rule by the end of June on Edie Windsor’s challenge to DOMA. Though many observers are optimistic the court will strike down the 1996 law, a victory for Windsor could be a narrow one. If the court were to issue a thoroughgoing decision, however, that would likely achieve the aim of Feinstein’s favored amendment.

Privately, advocates worry that Senate Democrats are counting on the Supreme Court to relieve them of the heavy lifting UAFA requires of them.

Given that 39 states still do not recognize same-sex marriage, the Supreme Court throwing out DOMA would grant nationwide relief for gay and lesbian binational couples as long as its ruling provides for federal recognition based on where a couple marries, not where they live. Even then, many couples would face the burden of traveling out of state in order to gain access to rights available under US law.