America's Inhumane Immigration Inequality

The Washington Post Editorial Page today urges
support for a pending bill that would grant gay American citizens the
right to have a permanent visa issued to their foreign national spouses
(a right which, thanks to the Defense of Marriage Act, only
heterosexual Americans currently enjoy):

The Uniting
American Families Act would allow gay and lesbian Americans and
permanent residents to sponsor their foreign-born partners for legal
residency in the United States. The bill, introduced last month in the
Senate by Patrick Leahy (D-Vt.) and in the House by Jerrold Nadler
(D-N.Y.), would add "permanent partner" and "permanent partnership"
after the words "spouse" and "marriage" in relevant sections of the
Immigration and Nationality Act. If passed, it would right a gross
unfairness. . . .

The strain of the status quo on gay and
lesbian binational couples should not be discounted. Because their
relationships are not legally recognized by the United States, some
couples have resorted to illegal marriages where the foreign nationals
marry Americans to get green cards that allow them to stay in the
country permanently. In other cases, Americans have exiled themselves
to be with their partners. Sixteen countries, including Australia,
Brazil, Canada, Israel, South Africa and the United Kingdom, allow
residents to sponsor same-sex permanent partners for legal immigration.
American gays and lesbians should not have to choose between their country and their partners.

This
is an issue that directly and personally affects me: my partner is
Brazilian and unable to get a visa to live in the U.S., which means our
only option for living together is to live in Brazil, as that country
(like many civilized Western countries, but unlike the U.S.) issues
permanent visas to the same-sex partners of their citizens. For that
reason, I tend not write about this issue, because that sort of direct
investment can preclude dispassionate analysis. But just consider how
grave is the injustice imposed by the current state of American law in
this regard.

American citizens who marry a foreign national of
the opposite sex are entitled to receive, more or less automatically, a
Green Card for their spouse so they can live together in the United
States. By rather stark contrast, gay American citizens who enter into
a spousal relationship with a foreign national have (at most) two legal
choices, both horrible:

(1) Live in the U.S.,
but remain permanently separated -- by oceans and continents -- from
the person with whom they want to share their life; or

(2) Live together with one's spouse in the spouse's country, but be prevented from living in one's own country.

As
horrible as those two choices are, those who at least have that choice
are, relatively speaking, quite lucky. Many gay Americans in a
relationship with a foreign national don't even have option (2)
available, either because their spouse's country also doesn't extend
immigration rights to same-sex couples and/or because they're unable to
earn a living while residing outside of the U.S.

As a result, there are countless Americans (Human Rights Watch puts the number in the "thousands") who,
by virtue of this punitive law, are literally prevented from living on
the same continent as their partner. The inequality embedded in the
law (and codified by DOMA) shatters families and put people into truly
horrendous predicaments. Independent of one's views of gay marriage,
who could possibly justify that? Here's just one account of many, from The Boston Globe, describing how this legal injustice wrecks people's lives for no reason.

Consider the list of countries which do grant permanent visas to the same-sex partners of their citizens (it's actually 19 nations
that do so). Most of those countries do not recognize gay marriage.
Many are actually quite socially conservative. Notwithstanding their
socially conservativism, those countries do not want to put their gay
citizens in the horrific position of having to choose between their
country or their partners, or worse still, be barred from living with
their partner at all.

The example of Brazil is quite
instructive. Until 1985, that country lived under a military
dictatorship. It has the largest Catholic population of any country on
the planet. It is more socially conservative even than the U.S., as
evidenced by its virtually absolute, nationwide ban on abortion. The
Catholic Church plays a far more influential role in Brazil's political
life than in America's. As demonstrated by the recent controversy arising from a Brazilian Archbishop's vocal condemnation of
the abortion of a 9-year-old girl who was raped by her stepfather and
faced a high risk of death if the pregnancy developed to full term (the
Archbishop even excommunicated the girl, her mother, and the doctors
who performed the abortion), the Catholic Church in Brazil is much more
assertive and stringent in its involvement in social affairs than is
true for the U.S. And there is also a rapidly growing evangelical
movement in Brazil, challenging Catholicism for religious supremacy.

Despite
all of that, in 2003, first a Brazilian immigration court and then the
Brazilian Government itself -- with very little fanfare or controversy
-- formally extended immigration rights
(.pdf) to the same-sex partners of its citizens. That was done not on
ideological but on purely humanitarian grounds. The most basic human
decency should preclude support for a legal framework which forces
one's fellow citizens to either leave the country or break apart their
most central and intimate relationship.

In the U.S., with the
Democrats in control of Congress and the White House, there is no
viable political excuse for failing to pass this corrective
legislation. The bill has 90 co-sponsors in the House and 15 in the Senate. Obama made the repeal of the entire Defense of Marriage Act a part of his winning presidential campaign, and extending full civil union rights to same-sex couples has been a position he has long explicitly advocated. And a majority of Americans -- that's a majority,
for those of you eager to claim that doing this is too politically
risky for Obama -- support full-scale civil union rights for same-sex
couples, let alone the limited right this bill would extend. Among the
litany of legal inequalities to which gay Americans are subjected, the
denial of immigration rights for their foreign partners is among the
most blatantly unjust, destructive, and outright punitive.