The answer is DOMA and its infamous limitation of marriage
to unions between “one man and one woman” which puts family-based immigration
benefits-- such as green card sponsorship--beyond the reach of same-sex
couples.
To be sure, the Obama Administration has made clear its
support of same-sex marriage. This past May the President gave his
public endorsement, explaining that he “had hesitated on gay marriage in part
because [he] thought that civil unions would be sufficient.” His views
continued to evolve, so he explained, because marriage “invokes very powerful
traditions and religious beliefs.”
Yet, despite the Administration’s evolution toward support
for same-sex marriage, including Attorney General Eric Holder’s decision not to
defend DOMA in litigation, American families in same-sex marriages continue to
receive unequal treatment under our archaic immigration laws causing
needless suffering and fear of separation.
Last week Jane DeLeon, an immigrant from the Philippines
challenged the constitutionality of DOMA as applied to deny immigration family
benefits. In 2008 DeLeon married her long time US citizen partner. She is
eligible for an employment-based immigrant visa, but requires a waiver due to a
previous immigration violation. The waiver is available to immigrants
such as DeLeon where the denial of her lawful permanent residency would cause extreme
hardship to her US citizen spouse. In DeLeon’s case the waiver was denied
solely because she is married to a woman; even though, under state law, the
woman is her wife.
Under our broken immigration system a same-sex marriage celebrated
under state law means nothing. Same-sex couples remain at the mercy of an
antiquated and functionally mean spirited statute—and they will so remain at
least until the Supreme Court addresses the constitutionality of DOMA.
First Lady Michelle Obama said recently on the Spanish
program “Aqui y Ahora”, "There is nothing more critical than keeping
families together”. Yet how many more American families will be
torn apart before the sanctity of same-sex marriage is no longer sullied by
DOMA and its impact on our immigration law?