Published: June 1, 2012
The momentum is unmistakable. State by state, our country is taking a serious look at the issue of gay marriage, with the volume of the local and national discussion only getting higher. Whether you believe same sex marriage is right or wrong, or should or should not be legalized, the issue certainly raises a multitude of questions on the rights of our gay population and the fairness of our current laws as applied to them. One such question involves the fairness of our immigration laws for individuals involved in same sex relationships. Should a heterosexual in the U.S. have any greater right to live in peace and harmony with their significant other or spouse than a gay individual in the U.S. who seeks to live with their partner – and particularly when that partner is from another country?
For a good portion of our society, the debate is complicated and emotional. And of course, with religion being an integral part of the discussion for many – if not most, it is next to impossible to avoid the explosive land mines that come with any conversation about morals or how God wants us to behave. The Constitution was written and adopted to guarantee, within certain limits of course, liberty and fairness for our citizens. But then again, the framers of the Constitution made no secret that Judeo-Christian principles were heavy on their mind when they went about their business of drafting the document.
To this point, 6 states have legalized same sex marriage, although the federal government (with the passage of the Defense of Marriage Act, or “DOMA” in 2006) and the vast majority of the rest of our states have enacted measures to prohibit recognition of same sex marriage. On the other hand, according to Wikipedia, approximately half of the US population now supports or has no objection to same sex marriage, a significant shift from 1996 when only 25% of Americans held such positions.
The legislative measures above have sparked numerous state and federal lawsuits – from both sides of the debate – challenging the legality of the pro-legalization or anti-legalization law in question. The Obama administration has sort of stepped forward to support the legalization of gay marriage, but we certainly do not hear President Obama screaming his support from the roof tops, especially as we inch our way toward November. On the other hand, the Obama administration has taken the bold step of allowing Department of Homeland Security officials to factor in same sex relationships with U.S. citizens in prosecutorial discretion decision-making for non-citizens in removal proceedings. Additionally, among other supportive policies, the U.S. Department of State has implemented regulatory measures to allow same sex partners of certain temporary work visa holders to accompany their partners to live in the U.S. for the term of their visa.
Like immigration law and policy, the gay marriage debate has become a powerful political football for players on the national stage to kick around. Whether same sex marriage becomes legalized or not, given our society’s growing comfort with the notion of same sex relationships, or simply gay individuals living their lives in the open, it seems to be just a matter of time before U.S. citizens who are gay will have the same rights as heterosexuals to have their legally recognized foreign partner/spouse live with them in the U.S. And more likely than not it will be the U.S. Supreme Court that will decide when that time will be.
PUBLISHED June 1, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois