(updated below - Update II)
The Washington Post Editorial Page today urges support for a pending bill that would grant gay American citizens the right to have a permanent visa issued to their foreign national spouses (a right which, thanks to the Defense of Marriage Act, only heterosexual Americans currently enjoy):
The Uniting American Families Act would allow gay and lesbian Americans and permanent residents to sponsor their foreign-born partners for legal residency in the United States. The bill, introduced last month in the Senate by Patrick Leahy (D-Vt.) and in the House by Jerrold Nadler (D-N.Y.), would add "permanent partner" and "permanent partnership" after the words "spouse" and "marriage" in relevant sections of the Immigration and Nationality Act. If passed, it would right a gross unfairness. . . .
The strain of the status quo on gay and lesbian binational couples should not be discounted. Because their relationships are not legally recognized by the United States, some couples have resorted to illegal marriages where the foreign nationals marry Americans to get green cards that allow them to stay in the country permanently. In other cases, Americans have exiled themselves to be with their partners. Sixteen countries, including Australia, Brazil, Canada, Israel, South Africa and the United Kingdom, allow residents to sponsor same-sex permanent partners for legal immigration. American gays and lesbians should not have to choose between their country and their partners.
This is an issue that directly and personally affects me: my partner is Brazilian and unable to get a visa to live in the U.S., which means our only option for living together is to live in Brazil, as that country (like many civilized Western countries, but unlike the U.S.) issues permanent visas to the same-sex partners of their citizens. For that reason, I tend not write about this issue, because that sort of direct investment can preclude dispassionate analysis. But just consider how grave is the injustice imposed by the current state of American law in this regard.
American citizens who marry a foreign national of the opposite sex are entitled to receive, more or less automatically, a Green Card for their spouse so they can live together in the United States. By rather stark contrast, gay American citizens who enter into a spousal relationship with a foreign national have (at most) two legal choices, both horrible:
(1) Live in the U.S., but remain permanently separated -- by oceans and continents -- from the person with whom they want to share their life; or
(2) Live together with one’s spouse in the spouse’s country, but be prevented from living in one’s own country.
As horrible as those two choices are, those who at least have that choice are, relatively speaking, quite lucky. Many gay Americans in a relationship with a foreign national don’t even have option (2) available, either because their spouse’s country also doesn’t extend immigration rights to same-sex couples and/or because they’re unable to earn a living while residing outside of the U.S.
As a result, there are countless Americans (Human Rights Watch puts the number in the "thousands") who, by virtue of this punitive law, are literally prevented from living on the same continent as their partner. The inequality embedded in the law (and codified by DOMA) shatters families and puts people into truly horrendous predicaments. Independent of one’s views of gay marriage, who could possibly justify that? Here's just one account of many, from The Boston Globe, describing how this legal injustice wrecks people's lives for no reason.
Consider the list of countries which do grant permanent visas to the same-sex partners of their citizens (it's actually 19 nations that do so). Most of those countries do not recognize gay marriage. Many are actually quite socially conservative. Notwithstanding their social conservativism, those countries do not want to put their gay citizens in the horrific position of having to choose between their country or their partners, or worse still, be barred from living with their partner at all.
The example of Brazil is quite instructive. Until 1985, that country lived under a military dictatorship. It has the largest Catholic population of any country on the planet. It is more socially conservative even than the U.S., as evidenced by its virtually absolute, nationwide ban on abortion. The Catholic Church plays a far more influential role in Brazil's political life than in America's. As demonstrated by the recent controversy arising from a Brazilian Archbishop's vocal condemnation of the abortion of a 9-year-old girl who was raped by her stepfather and faced a high risk of death if the pregnancy developed to full term (the Archbishop even excommunicated the girl, her mother, and the doctors who performed the abortion), the Catholic Church in Brazil is much more assertive and stringent in its involvement in social affairs than is true for the U.S. And there is also a rapidly growing evangelical movement in Brazil, challenging Catholicism for religious supremacy.
Despite all of that, in 2003, first a Brazilian immigration court and then the Brazilian Government itself -- with very little fanfare or controversy -- formally extended immigration rights (.pdf) to the same-sex partners of its citizens. That was done not on ideological but on purely humanitarian grounds. The most basic human decency should preclude support for a legal framework which forces one's fellow citizens to either leave the country or break apart their most central and intimate relationship.
In the U.S., with the Democrats in control of Congress and the White House, there is no viable political excuse for failing to pass this corrective legislation. The bill has 90 co-sponsors in the House and 15 in the Senate. Obama made the repeal of the entire Defense of Marriage Act a part of his winning presidential campaign, and extending full civil union rights to same-sex couples has been a position he has long explicitly advocated. And a majority of Americans -- that's a majority, for those of you eager to claim that doing this is too politically risky for Obama -- support full-scale civil union rights for same-sex couples, let alone the limited right this bill would extend. Among the litany of legal inequalities to which gay Americans are subjected, the denial of immigration rights for their foreign partners is among the most blatantly unjust, destructive, and outright punitive.
UPDATE: Just to clarify in response to emails and comments: my own personal situation is perfectly fine. I mentioned it only as a matter of disclosure and to explain why I don't write about this topic more frequently, not to hold it up as a particularly compelling example. It isn't. As I indicated, some people who are put into this predicament end up being quite lucky because their spouse's country offers immigration rights to same-sex couples and they are able to earn a living while living largely outside of the U.S., and thus end up being able to create a perfectly fulfilling life with their spouse. Living in another country is not an inherent punishment. To the contrary, there can be substantial value in it (even if one does it due to compulsion rather than choice), and as anyone who has ever visited Brazil will be quick to explain, residence in Rio de Janeiro is anything but a tragic plight.
But no matter how lucky one ends up being, being forced to choose between one's country and one's most central relationship -- being, in essence, barred from living in one's own country -- is a grave injustice. Even under the best of circumstances, there are burdens and limitations imposed. But the point is that huge numbers of Americans in that situation -- probably most -- are not lucky. Quite the contrary: they are unable to live in their spouse's country for any number of reasons, and are thus forced to live apart from the person who is most important to them, while others are forced into very risky or otherwise untenable predicaments (living in the U.S. illegally, entering sham marriages, making huge sacrifices of career, livelihood and family to live abroad) in order to be with the person they love. It's an inhumane and discriminatory legal framework that is purely punitive, has no conceivable value or justification, and imposes profound hardship on people who have done absolutely nothing to deserve it.
UPDATE II: An email from reader TF:
I just wanted to drop you a line and express my deepest, most profound gratitude that you decided to highlight this issue. As is evident by many of the commenters, this is something that almost no one thinks about or even knows about and when you're someone who is affected by it, that can make for some lonely moments as you try to get a handle on your problems.
My husband of 13 years is also Brazilian and since his work visa expired 6 years ago, we've been living both in fear and in debt. Whatever savings we had were wiped out in our futile attempts to find some way - any way - for him to stay in this country legally. Well, it didn't work out (no surprise) and since he is adamant about never wanting to live in Brazil again (for a variety of reasons), here we are. I never thought I'd use this word to describe myself but with the loss of his earnings and the frantic attempts to fix the situation, we are pretty much destitute.
Poverty, I can live with. It's ultimately, for someone like myself (white, educated, middle class background) a solvable situation even if most days that road seems unbearably long. It's the fear and the sadness that is so devastating. Fear that he will somehow be found out and taken away from me and sadness because his family back home is poor and has little opportunity to travel, so he hasn't seen his father or brother in 14 years and has only seen his mother twice in that time. His parents are getting older and always in the back of my mind, I have a cold dread of the day when one of them gets sick or ultimately passes away because psychologically, I have no idea how he's going to be able to handle that or how I'm going to be able to help him through that. In addition, because he can't legally work here, his earnings are practically nil and like many people, that is devastating to his pride and self worth.
I don't know why I'm telling you all this. It's certainly not something you're naive about or need to be told about. I guess I just wanted to tell you how gratifying it was to see someone highlight this issue, especially someone who is so good at explaining complex legal and political issues to his readers. Even better, you're someone who is personally affected by it. You do great work and I wouldn't expect you to become a spokesperson for this sort of thing, but I would urge you to consider writing about it again when circumstances warrant. People just don't know about this and in my experience, even people who are adamantly opposed to gay marriage find this to be cruel and untenable.
So, thank you. For a moment yesterday I didn't feel quite so lonely just knowing that people were gaining an understanding of the issue.
There are thousands of stories like that as a result of this law. It's hard to imagine anyone other than the most malicious extremists defending it.