Maybe tomorrow, or maybe next week, but at any rate at some point very soon, the U.S. Supreme Court will issue their ruling on “the gay cases” (Hollingsworth vs. Perry and Windsor vs. US). Also within this time frame, Congress will continue dismembering the immigration bill until it becomes something watered down, less controversial, and more politically palatable than it was before, at which time they will either pass it or throw it away. I have a lot at stake in both of these fights (if you haven’t read my former pieces for this blog, you can start to catch up here). My future, either at home in the U.S. or abroad in Australia, hangs in the balance. And the outcomes could be decided in such a way that everything changes for people like me—or nothing does.
Call me a cynic, but unfortunately my inkling is that the outcome will be the latter. I would love to be wrong. I know I should “think positive” in case “the power of positive thinking” is actually a thing. But it’s hard to think positive after a decade of dead ends in my personal struggle to exist within a discriminatory system. It’s hard to have faith that suddenly light will bathe the rather medieval U.S. law books and the Renaissance will be upon us. And I have been in this fight for a relatively short time compared to some, like Edie Windsor, the 83-year-old plaintiff in the DOMA case. Windsor was with her wife for 42 years and has suffered both her wife’s death and over $363,000 in inheritance taxes that a heterosexual spouse would not have had to pay. Suffice it to say that my TurboTax woes are minuscule compared to hers.
But my immigration woes are great.
I was pretty excited that the Supreme Court was hearing cases on same-sex marriage. In general I have a lot of respect for the Court, and living in two states (California and North Carolina) during their referenda to ban same-sex marriage, I have been frustrated by the majority voting on the rights of a minority. This issue will not be decided or even advanced by referendum, it seems; the only choices are legislation, executive order or judicial ruling.
But I was disheartened back in March reading the coverage of the arguments. I feel like the most emotionally and/or morally compelling arguments in these cases are missing from the legal arguments. Rather than decide that Windsor having to pay nearly half a million dollars that a heterosexual surviving spouse would not have to pay is patently unfair, discriminatory and wrong, and declaring the law that made her have to do that unfair, discriminatory and wrong, SCOTUS seems unwilling to see this as question of equal protection. I have studied and studied the legal jargon surrounding this, but for the life of me I cannot figure out why the question of states’ rights seems more important than the question of human civil rights.
“The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” said Justice Kennedy during the Windsor arguments on March 27th. And I get this. I do. Reserved and delegated powers and all that, ninth grade Civics. But the federal government is regulating marriage all the time, whether or not DOMA exists. They are doing so by making federal benefits and protections tied to the relationship of marriage, thereby giving citizens a vested interest in deciding whether or not to marry based at least in part on those benefits. Why do you think Brad and Angelina finally got married? For the longest time they were going to wait until it was legal for everyone, and then all of a sudden they were tying the knot. While I appreciate their gesture, changing their minds is also not something I hold against them. Any American family, but especially one with children and money at stake, would be far better off to be married than not–not because children do better in married heterosexual families, but because of the benefits and protections involved. The examples are legion, and one good thing about this prolonged fight is that the public is becoming more familiar with them: taxes, Social Security, survivorship benefits, military benefits, healthcare and all of the above for federal employees, and, of course, the one dearest to my heart—immigration. So if the federal government is going to issue protections based on marriage, and then not regulate the doling-out of those protections so that all citizens are equal under the law, to me the question that SCOTUS should be discussing is that of equal protection. Deciding that this is a matter for the states is just passing the buck, even if it remains the most direct way to dispense with DOMA.
Then there is this strange notion of “political power” and the suggestion that gay Americans have it. This notion is central to whether gays and lesbians qualify for minority protections, and the gray area that people, including Chief Justice Roberts, seem to think exists here is a large part of the reason why the equal protection argument has felt dangerous and therefore been shoved in the backseat while the Federalism argument rides shotgun. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” the Chief Justice said to Roberta Kaplan, the attorney arguing for Ms. Windsor, because a few politicians, including Hillary Clinton, had recently “come out” in support of same-sex marriage. This, and the fact that a few states have legalized same-sex marriage recently seems to be justification for the Court not to do the right thing, because the right thing is going to happen anyway, they seem to think. It seems to me that politicians and justices should be elbowing each other out of the way for the chance to be the first one in the race to the right side of history, but instead most of them seem to be playing hot potato, hoping that someone else will be holding it when the music stops. Meanwhile, those of us with all this supposed “political power” of the “gay lobby” behind us are still paying millions of dollars of unfair taxes, forgoing millions of dollars of Social Security benefits from our legal or illegal spouses, and writing polemics from our exile abroad rather than from within the U.S. because we still cannot sponsor our foreign spouses for their green cards.
And that’s why it really gets my goat that the immigration reform arguments, happening on the same hill in Washington, keep treating immigration as a simple issue that exists in a vacuum and is unrelated to all other contemporary issues. I’ll quote again from The Baptist Press, which I referenced in my last post, in which the head of the Ethics & Religious Liberty Commission warns that they will not support any immigration bill that includes provisions for same-sex couples: “it would be terribly unwise of Congress to confuse the issue of immigration reform with the issue of so-called gay rights.” But since individuals and families of all kinds, heterosexuals and homosexuals alike, are affected by immigration, gay rights and immigration reform are intertwined. A verdict on one is a verdict on the other, whether any of us likes it or not, and whether it’s intended to be or not. It’s not “confusing the issue” to link the two; it’s demonstrating far greater confusion, and, indeed, ignorance, to pretend they are unrelated.
But even among those “on my side” of the marriage issue, some are calling for the gay community to sit this one out. In his article “On Immigration, Gay Community Should Take One for the Team,” Gabriel Arana calls for “compromise”—i.e. bowing out—in order to let the larger bill pass. And I know that it may come to this, and of course I know that gays are not the only immigrants with something at stake here, and that there are times where you have to make a sacrifice so that a greater good can come to pass. But in order to make this proclamation, Arana, like the SCOTUS justices who think that “it’s happening anyway” is a rationale to make millions of citizens wait even longer for justice, ignores the day-to-day of what he’s asking. By taking it for the team, somewhere a gay American is far from a dying family member when they should be home, somewhere a gay foreigner in love with an American and a gay parent of American children are undergoing deportation, and somewhere a gay couple is spending months or years apart as they look for a place they can call home together.
At the end of his article, Arana declares that “Ultimately, recognition for LGBT couples in our immigration system is part of the marriage fight—not the immigration fight,” in exactly the same reductive way that the Southern Baptists or Senator Marco Rubio want to not “confuse the issues.” But I challenge that assumption as well. Why must something—immigration, in this case—be relegated to the marriage fight when it is just as easily a fight in its own right? Plenty of countries—Australia, my adoptive country included—do not allow or recognize same-sex marriages, but still have provisions for same-sex couples to benefit from the same protections that heterosexual couples enjoy. Australia recognizes any “de facto” relationship of more than six months’ duration for the purposes of government benefits and obligations. Hence, Jodi is allowed to sponsor me for immigration (hurray!)—but also receives no unemployment or student aid when I earn above a certain salary (damn!). But most of us would rather have freedom and protection, even if it means accepting the obligations that come with that.
I think the Australian model is a good one, given that legal same-sex marriage is still most likely a long way off in this deceptively conservative country. Why America won’t consider it, and doesn’t want to talk about one civil rights issue through the lens of another is, to me, an example of small, boxed-in thinking. When even the people “on my side” want me to “take one for the team” and “not confuse the issues,” I have to wonder what hope there is for justice (and use far too many ironic quotation marks). Because justice is what I want, and I want it ten years ago. Forgive me if I’m tired of waiting.