WASHINGTON — Senate Judiciary Committee Chairman Patrick Leahy has submitted two amendments to the "Gang of Eight" senators' immigration bill that would extend to same-sex couples to similar immigration rights as opposite-sex married couples.
"For immigration reform to be truly comprehensive, it must include protections for all families," Leahy said in a statement. "We must end the discrimination that gay and lesbian families face in our immigration law."
Amendments on the bill were due to be submitted by 5 p.m. Tuesday. The Judiciary Committee is scheduled to begin considering the bill and amendments on Thursday morning.
Leahy's moves Tuesday included an unexpected amendment that would provide recognition to same-sex couples who are legally married for immigrations purposes — an effort praised as "brilliant" by the Human Rights Campaign.
Because the Defense of Marriage Act bars the federal government from recognizing same-sex couples' marriages, binational gay and lesbian couples — those where one partner is not a U.S. citizen — have been denied the ability to seek a green card that straight couples have been eligible to obtain for their spouse in a similar situation.
Among Leahy's amendments is one that would include the Uniting American Families Act — a bill that would create a new category of "permanent partners" to enable a U.S. citizen in a same-sex couple to sponsor a foreign partner — in the larger immigration reform legislation. This amendment had been discussed and was expected to be filed.
A second amendment, according to a news release from Leahy's office, "provides equal protection to lawfully married bi-national same sex couples that other spouses receive under existing immigration law." The provision asserts that a person would be considered a married spouse under the Immigration and Nationality Act if the marriage "is valid in the state in which the marriage was entered into" or, if "entered into outside of any state," was valid where entered into and would be valid in a state.
Lavi Soloway, an immigration rights lawyer who represents same-sex couples and co-founded The DOMA Project, told BuzzFeed the second amendment was "nothing short of a strategic master stroke."
Explaining, he said, "It would amend the Immigration and Nationality Act so that all marriages of gay and lesbian binational couples would be recognized for immigration purposes only, thus creating the first ever 'carve out' or exception to DOMA under federal law."
Soloway added that UAFA "would become immediately inoperative if the second amendment was passed into law." This is so "because the key component of UAFA is the creation of the 'permanent partner' category, which only exists as long as same-sex marriages are not recognized under the Immigration and Nationality Act." Under the second amendment — or if DOMA's federal definition of marriage is struck down as unconstitutional — same-sex couples' marriages would be recognized under the act.
Sen. Marco Rubio, one of the Gang of Eight, reiterated earlier Tuesday his statement that inclusion of same-sex couples in the bill "will ensure that it fails."
It was not immediately clear if Rubio would have the same position regarding the second amendment, as he also said Tuesday, "I understand this is an issue that's moving across the country and different states are dealing with it differently. I understand all that, I do."
The language in the second amendment also could be seen as more palatable by Sen. Dianne Feinstein, who is on the Judiciary Committee and has expressed concern about the language in UAFA.
Although not on the Judiciary Committee or in the Gang of Eight, the language in the second provision also would appear to meet the standards enunciated Monday night by Sen. Rob Portman at BuzzFeed Brews.
Human Rights Campaign vice president Fred Sainz echoed Soloway, telling BuzzFeed Tuesday evening, "I think it's brilliant."
Explaining, he continued, "This is basically meant to ferret out the Republicans. If you believe in a federalism concept, then I love this because it really narrows, and makes more circumspect, the objections. It's hard to object to marriage, if they're already married. If you're not creating a whole other category of 'permanent partners,' then the objection, on their part, is much more difficult. I think it's a game-changer."
Leahy's UAFA Amendment:
Leahy's Marriage Amendment:
[UPDATE: This post was updated with the amendment text, analysis and comments, as available, with the final update at 7 p.m.]