Bloggings on Immigration Law

by Roger Algase

Bloggings: Marriage Equality and Immigration Reform: How Many Concessions to Bigotry Are Needed to Pass CIR? By Roger Algase


ID's May 1 editorial raises the question whether it is either morally or politically defensible to throw same-sex couples under the bus in order to pass comprehensive immigration reform.*This is, arguably, what the bipartisan Gang of Eight (GOE) Senators have done in their CIR bill, which leaves out any mention of green cards for same sex marriage partners of US citizens.*

ID's editorial points out that marriage equality supporters are not being thrown under the bus if compared to certain other groups with an interest in immigration, including F-4 family members, DV lottery applicants and certain Indian companies using the H-1B program.

This is true enough. It might be more accurate to say that marriage equality supporters are only being thrown under a motorcycle, or even a bicycle, by comparison with these other groups.

As some commentators have also pointed out, if the US Supreme Court strikes down DOMA, as may happen this June, then it will not be necessary to include marriage equality in a CIR bill at all. It would already be the law if the land.

For that reason, purely as a matter of strategy, it might make more sense for marriage equality supporters to wait until the Supreme Court decision on marriage equality comes down, rather than to risk killing CIR entirely over what might turn out to be an entirely moot issue.

But suppose homophobia (as, for example, openly expressed in Justice Scalia's dissenting opinion in Lawrence vs. Texas) prevails in the high court and DOMA is upheld. Assuming that CIR has not yet been enacted by June (a reasonable assumption), should marriage equality advocates remain silent?

First, as a matter of strategy, it is not at all certain that caving in on marriage equality would save CIR as presently drafted anyway.

According to the April 30 Politico article referred to in the ID editorial:*Gay rights push threatens immigration deal, Senator Marco Rubio (R-FL) is warning that if the right to same-sex marriage green cards becomes part of the bill, "the bill will fail and the coalition that helped put it together will fall apart".*

It may also be true that, as the Politico article also explains, if marriage equality goes into the CIR bill, conservative evangelicals and Catholic bishops will pull out of the coalition, along with most or all Congressional Republicans who now support CIR.*

But another Politico article of the same date has the title: Marco Rubio: Gang of Eight's immigration bill can't pass the House. According to this article, Rubio is on record as stating that even more concessions to right wing immigration opponents may be necessary to get CIR through the lower chamber. In other words, even without marriage equality, it may be difficult to pass CIR as it is in its present form.

Ovid begins his Metamorphoses as follows:*

"In nova fert animus mutatas dicere formas/corpora..." ("I intend to tell of changed forms in new bodies.")

Evidently, House Republicans may have similar intentions for any Senate passed CIR bill.

Moreover, as a matter of principle, isn't the current CIR bill already full of so many concessions to right wing immigration opponents, in terms of throwing away billions of dollars on "border security", draconian employer verification, waiting more than a decade for "provisionally" legalized immigrants to become permanent residents, turning H-1B into a virtual labor certification program (more about this in a future blogging), eliminating the diversity visa lottery in order to keep out African and Bangladeshi immigrants, reducing family immigration to keep out Latin American ones; and many other harsh restrictions, that it is already in danger of becoming a restrictionists' dream, rather than a genuine reform bill?*

Trying to mollify right wing bigotry against marriage equality has only led so far to producing a bill riddled with concessions to bigotry against minority immigrants. How much more accommodation to prejudice do we need in order to pass CIR? And what will the final bill look like if those who are opposed to both marriage equality and immigration keep getting their way on issue after issue?

The Republicans (those who have any sense, at least) desperately need immigration reform for the survival of their own party in diverse, 21st-Century America. Their stake in CIR may well be even bigger than that of the Democrats. Does it make any political, or moral, sense for immigration supporters to keep giving away the store?

Perhaps standing on principle, including marriage equality, may actually be the best strategy for passing genuine immigration reform.



About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.