Written by Troy Elder Friday, 06 May 2011 00:00
Gay Latinos often ask me my opinion about whether President Obama has been good for gay immigrants. This is a good question, since both Latinos and gays voted for the President in overwhelming numbers.
While President Obama has not yet been able to obtain passage of a law that would fix the many problems in today's immigration law (see my column last month), recently he took one promising step – not in the field of immigration law itself, but with the potential to impact gay Latinos in many ways. In February, the Obama administration said it would no longer defend the Defense of Marriage Act (DOMA) which bars the U.S. government from recognizing same-sex marriages for purposes of taxes, social security and other government benefits.
What does this mean for gay immigrants? The answer is complex. While the decision was extremely important, it does not apply to the federal agencies with day-to-day responsibility for issuing visas and for deporting immigrants. Unfortunately, the Obama Administration has only decided to stop enforcing DOMA “in court”, not at the consulate, the visa office, or in immigration detention facilities. So a gay immigrant married to a U.S. citizen same-sex spouse in one of the six states that allow it will regrettably still be denied a visa, at least of for now.
But the fact that the government has decided to not defend DOMA “in court” might have some positive effects in the short-term. First, denials of immigration benefits in some cases can be appealed “in court.” In such cases, a number of which are now being brought in the New York area, attorneys are arguing that Obama's new position means there is no good reason based on the U.S. constitution to deny the gay couples an immigration benefit. Time will tell whether the government takes the same position it did in the DOMA case, takes no position or continues to rely on DOMA in routine immigration appeals.
Second, and also promising…because of the government's new position, and since the DOMA litigation itself is not over, there is much uncertainty in the law and the numbers of same-sex married couples are not large. In the past, when such factors are present, the government has issued short-term policies that, in effect, work to the immigrant's advantage while the courts and Congress attempt to resolve the larger issues. For example, the government might suspend pending deportation cases involving same-sex married couples, like it did last year for students who came to the United States without legal status as young children as a result of the so-called Dream Act. This would at least shield such couples from deportation while fate of DOMA is determined.
In summary, Obama's new posture regarding DOMA is good for gay Latinos as it is for gays overall. The ultimate outcome will turn on many factors, but both in the short and long-term there are many reasons to be encouraged.