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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.

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Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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