The Ticket

Dems look to Supreme Court to fix immigration bill’s gay rights gap

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Same-sex marriage supporters rally in front of the U.S. Supreme Court on March 27, 2013. (Mark Wilson/Getty Im …

Senate Democrats are still taking heat from gay rights groups that feel betrayed over their decision last month to quash an amendment to the immigration reform bill that would have allowed same-sex married couples the same immigration benefits as other married couples. Now, those gay rights supporters are demanding Democrats flout Republican concerns and introduce the amendment on the full Senate floor.

A looming gay rights decision from the Supreme Court, however, could give liberals an out.

"Their silence was reprehensible," said Lavi Soloway, an attorney and gay rights activist who helped draft the amendment that Senate Judiciary Committee Chair Patrick Leahy, D-Vt., ultimately withdrew under pressure from his Republican colleagues.

The amendment would have expanded immigration benefits—including the right to apply for a green card for a spouse—to the approximately 35,000 people in the country in binational same-sex marriages.

The move has generated some backlash, even as Democrats have explained the amendment would likely have killed the entire reform bill. Sen. Chuck Schumer, for one, wrote in answer to angry comments on his Facebook page that if the amendment had been added in committee "the bill would have failed."

Democrats and reform supporters are hoping they can dodge the issue altogether if the Supreme Court strikes down the federal government's Defense of Marriage Act this month. DOMA, passed in 1996 under President Bill Clinton, prevents the federal government from recognizing same-sex unions. If DOMA is struck down, same-sex married couples who live in states that allow gay marriage will be treated the same as opposite-sex couples under immigration law, no matter what's in the reform bill. (There's some disagreement among legal experts, however, if same-sex couples who move to states that don't allow gay marriage will still qualify for the benefits.)

A decision in the DOMA case is expected by the end of June. Senators are hoping to vote on the full immigration reform bill in early July.

Sen. Dick Durbin had optimistically raised the possibility last month that the Supreme Court would take the hot potato amendment off the table before the markup and amendment process was finished. “If they reach a decision while we’re in the process of markup, it may resolve the issue,” Durbin said, according to the Hill.

But that didn't happen. The Senate Judiciary Committee finished the markup and amendment process in May, and the court has yet to make its decision. The Democratic-controlled committee had dodged the amendment after their Republican colleagues, including Sens. Jeff Flake of Arizona and Lindsey Graham of South Carolina, said adding the issue of same-sex marriage into the mix would alienate conservatives and render the bill unpassable. The Republican-controlled House, which is working on its own version of immigration reform, is unlikely to accept such a provision, they warned.

Some gay right advocates found the Democrats' decision to bow to the Republicans on the issue particularly distasteful given how many Senate Democrats rushed to disavow DOMA and embrace gay marriage in the run-up to the Supreme Court's oral argument in the case this spring. Fifty-four senators have now come out in favor of gay marriage. It would take 60 votes for the amendment to overcome a filibuster and be added to the bill.

No major gay rights group has threatened to withdraw support for immigration reform even if binational couples are not included in it.

Liberal-leaning groups that support immigration reform are also hoping the issue will be taken off the table by the court.

"We're hopeful that the issue will be solved by the Supreme Court," said Ben Monterroso, an immigration reform advocate at the Service Employees International Union. "We expect the Supreme Court is going to do the right thing so it's not going to be an issue."

But Soloway said Democrats should not wait on the court's decision to take action. He said Durbin and Schumer have a particular responsibility to support the amendment because they voted for DOMA in 1996 while in Congress.

"I don't think they should pass the buck to the court to remove from the books a law they voted for. I think my mother would call that chutzpah," said Soloway. He added that waiting for the Supreme Court ruling would be to "gamble with the futures of tens of thousands of Americans and their families."

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