A significant point of contention in the immigration reform legislation currently undergoing mark-up in the Senate Judiciary Committee is whether individuals in binational same-sex couples should have the same right to sponsor their partners for citizenship as opposite-sex couples already enjoy. Because of the Defense of Marriage Act (DOMA), the federal government does not recognize same-sex marriages and thus extends those couples no immigration benefits. Sen. Patrick Leahy (D-VT) has been adamant about adding these protections to the bill through amendment versions of his Uniting American Families Act (UAFA), but Republicans like Sens. Marco Rubio (FL) and Lindsey Graham (SC) have made it clear the protections are a deal-breaker for reform.

Committee mark-up is nearing its end this week and Leahy’s amendments have still not been introduced. Sources suggest that President Obama encouraged Leahy not to introduce these amendments in committee, but save them for introduction on the floor of the full Senate. Obama has said publicly he believes that including protections for same-sex couples is the right thing to do, but UAFA would likely face an even bigger hurdle on the Senate floor than it would if included with the bill in committee.

Despite Republicans’ threats to let the inclusion of same-sex families derail the entire bill, several of the major conservative groups that support the bill also back UAFA’s protections. Some, like The DOMA Project’s Lavi Soloway, have called out Senate Democrats on the committee for caving to these threats rather than defend the gay community’s inclusion on principle. United Methodist Church Bishop Minerva G. Carcaño has suggested that any Senator willing to walk away from the bill over the inclusion of LGBT families “should be ashamed of themselves.”  In contrast, blogger Bil Browning argues that immigration reform is too important for all LGBT immigrants to worry about specific protections for couples. The legislation does contain some provisions that will especially help LGBT people, including a protection that people cannot be targeted for solitary confinement because of their sexual orientation or gender identity.

Nevertheless, the absence of UAFA would limit gay, lesbian, and bisexual immigrants to one less path on the roadmap to citizenship. Should the Supreme Court overturn Section 3 of DOMA next month, however, the federal government may be able to recognize same-sex couples for immigration purposes.

There are estimated to be at least twenty-four thousand binational same-sex couples in the United States and many will undoubtedly be helped by the bill’s legalization provisions. Countless stories of these families being separated by deportation have permeated the media over the past few years. Republicans are insisting that this should remain the status quo, and it seems they might just have the political leverage to keep it that way.

The three major Republican-leaning outside groups running ads in support of a comprehensive immigration reform bill are all backed by strong supporters of legal equality for same-sex couples. Despite conservative warnings that including protections for bi-national same-sex couples would torpedo the bill, there appears to be wider bipartisan support for equal rights for gay and lesbian couples.

Sen. Marco Rubio (R-FL), one of four Republican co-sponsors of the proposed Border Security, Economic Opportunity, and Immigration Modernization Act, said last week that adoption of an amendment to allow gay and lesbian Americans equal rights to sponsor their non-citizen partners for green cards would “virtually guarantee” that the broader bill would not pass the Senate. He warned that “if that issue is injected into this bill, the bill will fail and the coalition that helped put it together will fall apart.”

The conservative groups running ads in support of immigration reform include FWD.US‘s Americans for a Conservative Direction, the American Action Network, and the National Immigration Forum Action Fund. A ThinkProgress review of top supporters of those groups finds several vocal supporters of LGBT rights.

• Americans for a Conservative Direction: Mark Zuckerberg’s FWD.US, which funds Americans for a Conservative Direction, lists several co-founders and major donors from the tech community who have publicly or privately supporter marriage equality. They include Microsoft’s Bill Gates and Steve Ballmer, Google’s Eric Schmidt, Napster co-founder Sean Parker, Zynga co-founder Mark Pincus, and several others. Zuckberg’s own Facebook has been among industry leaders in supporting equal treatment for same-sex couples.
• American Action Network: The founder of the organization is marriage equality supporter Fred Malek. The president of its affiliated American Action Forum, Douglas Holtz-Eakin signed a Supreme Court brief in support of the freedom to marry for same-sex couples. Even board member and conservative bulwark C. Boyden Gray recently penned an op-ed in support of civil unions.
• The National Immigration Forum Action Fund. The group received a recent “six-figure donation” from hedge-fund billionaire Paul Singer. Singer, whose son and son-in-law married in Massachusetts in 2009, has reportedly given more than $10 million to marriage equality efforts nationally and helped launch a super PAC to encourage other Republicans to support same-sex marriage.

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, disputes Rubio’s assessment that LGBT protections would imperil immigration reform. “It’s not going to kill the bill,” he told Politico. Others noted to the publication that many made same threats about LGBT protections included in the Violence Against Women Act re-authorization, which garnered 78 votes in the U.S. Senate. Those provisions, like the bi-national couples protections, were opposed by Catholic bishops and some Evangelical groups.

As of today, 54 Senators have publicly endorsed marriage equality (including Republicans Mark Kirk of Illinois and Rob Portman of Ohio). Sen. Susan Collins (R-ME) is a co-sponsor of the Uniting American Families Act, a stand alone version of the amendment, and has endorsed the idea of inclusion of the provisions in a comprehensive reform package. Sen. Orrin Hatch (R-UT) has endorsed equal legal rights for same-sex couples, through civil unions, and Sen. Lisa Murkowski (R-AK) has said she is “evolving” toward supporting marriage equality. And the three Senate Democrats who have not yet endorsed marriage equality have each been supportive of other LGBT rights.

If Rubio and fellow Gang of Eight members Jeff Flake (R-AZ), Lindsay Graham (R-SC), and John McCain (R-AZ) joined with these Senators, the bill could easily obtain the 60 votes needed to prevent any filibuster.

But Rubio partnered with the National Organization for Marriage last year to make robocalls against same-sex marriage and boasted of the endorsement of the Family Research Council, an anti-LGBT hate group. While he attempts to spin his opposition to inclusion of LGBT protections as concern for the bill, the fate of the bill really appears to rest in Rubio’s own hands.

Our guest bloggers are Christopher Frost, intern for LGBT Progress, and Crosby Burns, Research Associate for LGBT Progress.

Earlier this week a bipartisan group of senators announced a sweeping proposal that would overhaul the immigration system and ultimately provide the more than 11 million undocumented immigrants in this country a path to earned citizenship. On the heels of that announcement, President Obama announced a similar plan for immigration reform that would create a pathway to citizenship for the undocumented, establish a nationwide employment verification system, secure our border, and improve visa access for high-skilled workers.

The momentum on immigration reform from both sides of Pennsylvania Avenue is good news for the undocumented, including the hundreds of thousands who identify as LGBT. Allowing LGBT individuals to obtain legal status would offer them and their families the certainty and economic safeguards that citizenship confers. President Obama’s support for these families and for LGBT immigrants more broadly is reflected in many of the policies enacted during his first term. According to a column released today by the Center for American Progress, President Obama has taken the following steps to address the needs and obstacles of LGBT immigrants:

1. Putting an end to separating families headed by same-sex couples. The Department of Homeland Security (DHS) incorporated families headed by same-sex couples in its guidance on what it considers to be “low-priority” for investigation and deportation (so long as they are not a threat to public safety or national security).

2. Facilitating humane and safe detention standards for gay and transgender immigrants. DHS released new standards aimed at strengthening the dignified treatment of gay and transgender detainees and decreasing sexual victimization of those detainees.

3. Addressing the needs of gay and transgender refugees. DHS has implemented a training module that requires all asylum officers to be trained on the appropriate terminology they should use and questions they should ask when interviewing gay and transgender refugees.

4. Lifting the HIV travel ban. Finishing a process started by President Bush, President Obama issued rules that overturned the 22-year old ban on travel and immigration of HIV-positive individuals to the United States.

5. Offering undocumented immigrants who were brought here as children a temporary reprieve from deportation. President Obama’s “deferred action” policy has granted greater peace of mind for up to 1.76 million aspiring young Americans who qualify for the program. Many of the youth in this demographic identify as LGBT.

Beyond administrative policies, LGBT immigrants have been part of the recent legislative debate over immigration reform. Included in President Obama’s proposal for reform — but notably absent in the senators’ proposal — is a provision that would allow citizens to sponsor a same-sex partner for residency, a right that different-sex spouses currently enjoy under existing immigration law. Obtaining spousal sponsorship rights for bi-national same-sex couples is important to equitable immigration overhaul that includes all immigrants. LGBT-inclusive language should be a part of any bill going forward.

As promised, the Department of Homeland Security has issued written guidance for how to consider deportation cases involving same-sex binational couples, whose relationships are not recognized under federal law because of the Defense of Marriage Act. According to the memo, there are three criteria that must be met in order for same-sex relationships to be treated as “family relationships”:

Same-sex relationships that rise to the level of “family relationships” are long-term, same-sex relationships in which the individuals —

• are each other’s sole domestic partner and intend to remain so indefinitely;
• are not in a marital or other domestic relationship with anyone else; and
• typically maintain a common residence and share financial obligations and assets.

When these simple criteria are met, immigration officials should apply prosecutorial discretion, treating these families as “ties and contributions to the community.” As in all cases, family relationships may be outweighed by other circumstances such as criminal history or prior immigration violations.

This is the first time that same-sex binational couples have been protected in writing. Previous oral guidance had not been thoroughly implemented, resulting in uncertain limbo and continued confusion for many couples. It is unclear if this new policy will rise to the same level of protection opposite-sex marriages have in immigration law, though it is an important step forward from the previous lack of clarity. Most likely, however, same-sex couples will not be fully secure until DOMA is repealed or circumvented by legislation such as the Uniting American Families Act.