On Immigration, Gay Community Should Take One for the Team


In July of 2010, Russ Feingold did the principled thing. After weeks of markup and debate, the liberal Wisconsin senator voted against Dodd-Frank. "My test for the financial-regulatory reform bill is whether it will prevent another crisis," Feingold said at the time. "[The bill] fails that test." Ironically, Feingold's fortitude only served to further weaken the legislation. In order to break a filibuster, Dodd-Frank's sponsors had to appease conservative Massachusetts senator Scott Brown, who opposed a "bank tax" that would have made financial institutions pay for the new regulatory regime. The provision was stripped from the legislation, costing taxpayers $19 billion.

Gay-rights advocates should keep this scenario in mind as the Gang of Eight tries to push immigration reform through the Senate. Given that more than a quarter million undocumented immigrants are LGBT, the movement has a broad interest in seeing comprehensive reform with a path to citizenship succeed. But gay-rights supporters have also been pushing for a specific provision in the bill recognizing LGBT families, who under current law are ineligible for family-based immigration. President Obama's immigration proposal, released in February, contained such a provision. But few were surprised that the bill unveiled by the bipartisan group earlier this month contained a legalization program for the undocumented but made no mention of LGBT families. This is no doubt a shortcoming in the current proposal, and one that groups like Immigration Equality, which advocates on behalf of gay and HIV-positive immigrants, should fight to fix. Immigration Equality has already said that the current Senate bill "does not reflect the values or diversity of our country" and that "we are watching—and we will remember—which lawmakers stand with us, and which stand to the side, when this critical vote happens." The Human Rights Campaign and other prominent gay-rights groups have similarly condemned the current Senate bill.

Of course, if support for the immigration-reform bill is widespread—last week, Senator John McCain predicted it would get 70 votes in the Senate—LGBT allies in the chamber can feel free to stand on principle and vote it down to send a message. But if the current opposition shaping up against the bill is any indication—Republicans on the Senate Judiciary have said the inclusion of protections for LGBT families would surely sink the bill, as has Marco Rubio—it is in the interest of the LGBT community to support the bill even without this provision.

To see why the hold-fast-and-then-yield strategy makes sense, it’s crucial to understand that the tools grassroots true-believers and legislators have at their disposal are very different. Unencumbered by the vagaries of lawmaking, activists are free to push for the ideal result now (who's ever seen a sign at a rally that says 'We want X after Congress passes that appropriations bill!'?). And the truth is that we need an activist community that's slow to compromise. Without the gay community jumping and screaming that the repeal of "don't ask, don't tell" wasn't happening fast enough, we'd probably still be waiting. Agitating from the base holds politicians' feet to the fire and propels legislative action.

But as Feingold discovered, as you move closer to the levers of power, unfiltered idealism starts to work against you. This is largely the story of the Tea Party, whose unyielding representatives in Congress have failed to pass a single piece of substantive policy (the House's 29 symbolic repeals of Obamacare don't count) that furthers the movement's goals in the last three years. Those of us who support gay rights must learn that you can’t keep allies in Congress without cutting them some slack every now and then. 

Holding out or selling out is "a gamble that you have to take given the competing considerations of passing immigration reform and making it as inclusive as possible," says Nolan McCarty, a political scientist at Princeton's Woodrow Wilson School of Public and International Affairs. As with Dodd-Frank, McCarty explained that if passage of immigration reform comes down to a handful of key votes and gay-rights allies in Congress balk at supporting a bill without all the provisions they want, you have to make up for the loss of support elsewhere. This could mean watering down other key pieces of the legislation, like making the path to citizenship for the undocumented more narrow. In two disaster scenarios, courting Republican legislators could doom the legalization program—the heart of the current proposal—or cause the whole effort to go up in flames. Even the most hardline gay-rights supporter will concede that this is worse than passing an imperfect immigration bill that includes a path to citizenship.

This is not to say that giving up on LGBT protections in comprehensive immigration reform is a no-brainer. It is a "calculated risk to delay" getting LGBT-family recognition passed, McCarty says, and the strategy one adopts depends on what one thinks the future holds. But with the Supreme Court poised to strike down the Defense of Marriage Act (DOMA), which bars the federal government from recognizing same-sex marriages in the states—including for immigration purposes—the future arc of gay rights bends toward justice. At least for couples in the nine states plus Washington, D.C. that recognize same-sex unions, a win on DOMA will mean a substantial number of LGBT couples will gain recognition for their families even without the provision in the bill.

This brings me to another point: Ultimately, recognition for LGBT couples in our immigration system is part of the marriage fight—not the immigration fight. While Senator Patrick Leahy of Vermont has suggested including language in the immigration-reform legislation that defines a same-sex spouse as a "permanent partner" and allows her to apply for a green card, what we are basically asking is for Congress to recognize same-sex marriages, at least in this narrow sense. 

The broader fight is well underway, and we're winning. By the end of next year, that list of marriage-equality states will likely include New Jersey, Illinois, Minnesota, and Oregon. This may be cold comfort to the thousands of LGBT families caught in red-state immigration limbo, but the hard reality is that winning full recognition for same-sex couples will take time. 

An immigration bill including a path to citizenship has been a progressive dream for more than a decade. The failure to pass reform during George W. Bush's presidency and Obama's first term were epic disappointments. The current political moment—fresh off the 2012 election, in which Latinos showed Republicans at the ballot box the cost of their opposition to comprehensive immigration reform—offers the perfect climate for passing a good immigration bill. It's an opportunity that won't come up again in the near future. If it comes down to it, the noble thing for gay-rights supporters to do is take a win for 267,000 LGBT-identified undocumented immigrants and recognize that you don't get everything you want all the time.

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