02/10/2012 10:39 am ET Updated Apr 11, 2012

Prop 8 Case and the Message for Immigration Reform

The federal Ninth Circuit Court of Appeals' decision striking down California's Proposition 8 attempt to take away marital rights from same-sex couples sends a strong immigration-reform message to Congress: it's time to allow U.S. citizens lawfully married to same-sex partners the opportunity to apply for lawful immigrant status. Under current law, prospective immigrants who want to immigrate through marriage can only do so if they are parties to a heterosexual relationship.

The history of the treatment of gays and lesbians under U.S. immigration laws is sordid. Beginning in 1917 with language directed at persons who were of "psychopathic inferiority" or "afflicted with psychopathic personality," Congress targeted gays and lesbians for immigration exclusion. Legislators reaffirmed their malevolence in 1965 with language excluding those with "sexual deviation." The constitutionality of the exclusion of homosexuals was upheld in Boutilier v. INS (1967), a deportation case. Even though Clive Boutilier had become a lawful immigrant, the Supreme Court determined that the legislative history of the exclusion laws indicated "beyond a shadow of a doubt" that Congress intended to exclude immigrants who were homosexuals via the "psychopathic personality" provision. As a result, the Court order Mr. Boutilier deported, because prior to his entry in the United States when he was twenty-one years old, he had engaged in homosexual activity. Since he was excludable at the time of his immigration, he could now be deported. After lengthy administrative battles within the Immigration and Naturalization Service and the Public Health Service as well as judicial challenges, the exclusion ground finally was removed in 1990.

However, immigrant visas (green cards) for spouses U.S. citizens or lawful permanent residents continue to be limited to spouses of the opposite sex. Ironically, in another Ninth Circuit Court of Appeals decision back in 1981 (Adams v. Howerton), the court ruled that the term "spouse" as used in the Immigration and Nationality Act was limited to marriages involving heterosexual relations. The court found that Congress had a rational basis for that limitation because "homosexual marriages never produce offspring, because they are not recognized in most, if in any, states, or because they violate traditional and often prevailing social mores." Even though times have changed since 1981, the Adams v. Howerton interpretation of the immigration laws prevails. As a result, the threat to deport the foreign national partner in such marriages continue. For example, Anthony Makk, an Australian citizen married to U.S. citizen Bradford Wells, only recently received a deportation reprieve. Makk, who is the primary caregiver to his AIDS-afflicted spouse, was ordered deported last summer, but has been permitted to remain another two years. Wells previously told the San Francisco Chronicle:

I'm married just like any other married person in this country.... At this point, the government can come in and take my husband and deport him. It's infuriating. It's upsetting. I have no power, no right to keep my husband in this country. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married.

The Obama administration announced last summer that "prosecutorial discretion" could be exercised to halt the deportation of prospective immigrants in same-sex relations (along with DREAM Act students and others). However, the results have been inconsistent, and some ICE officers have been outspoken in their criticism of these internal orders. As a result, U.S. citizens and lawful residents with same-sex partners who have overstayed nonimmigrant visas or who are otherwise undocumented immigrants live in constant fear that their partner may be deported. True, the Obama folks have spoken out against the Defense of Marriage Act, which is a relevant statement. But we need specific legislation to resolve the issue once and for all.

The way out of this inequity is the Uniting American Families Act (UAFA). UAFA would allow U.S. citizens and lawful permanent residents to sponsor their same-sex partners for immigration to the United States. The bill (and its predecessor) has been introduced into every subsequent Congress since the year 2000. Every year support has increased, and in the last Congress, more co-sponsors than ever before were garnered. In the 111th Congress (2009-2010), there was a record-breaking 135 co-sponsors in the House. And today there are more than 20 co-sponsors in the Senate. UAFA would amend the immigration laws by simply adding the term "permanent partner" in sections where "spouse" appears, thus ensuring that a non-citizen permanent partner may receive the same immigration benefits that a non-citizen spouse now receives.

Can the Ninth Circuit Court of Appeals' decision lead the way to this much-need social justice reform? Certainly not alone. As much as anyone, I am skeptical that a single court decision or lawsuit can bring about lasting social change. But the decision is an important sign of the times that invites all of us as well as our Congressional leaders to push for reform sooner rather than later. There is no turning back on the eventuality that UAFA will be enacted.