NEGOTIATION MAY 30, 2013
On the evening of May 22, Lavi Soloway, an immigration attorney and longtime advocate for same-sex couples navigating U.S. immigration law, fired off an email to a few friends: “Uniting American Families Act. February 14, 2000 – May 21, 2013. RIP.”
Senator Pat Leahy had just withdrawn two amendments to the Senate immigration-reform bill—one that would have allowed gay U.S. citizens to sponsor their "permanent partners" for green cards, and one that would have allowed only couples who are legally married in the U.S. to apply for green cards—after Democratic colleagues like Diane Feinstein and Chuck Schumer promised to vote against his proposals. Measures like Leahy’s, to protect the nearly 40,000 binational gay couples living in the United States, has been a cherished goal of gay rights groups for decades. With its failure to gain traction even in a committee Democrats hold by two votes, the proposal appears, to Soloway, dead for now.
That's not how LGBT advocates see it. Groups like the Human Rights Campaign, Immigration Equality, and the National Gay and Lesbian Task Force are confident that the amendments have a chance if Leahy introduces them on the Senate floor. “We have another bite at the apple,” said Fred Sainz, HRC's vice president for communications. But that assumes HRC and like-minded groups have any political leverage left on the issue; in the past few days, they may well have ceded whatever sway they once had. Which is why the quietude over their decision to back the bill anyway is so puzzling. There was some backlash against Democratic senators, many of whom recently pledged their support for marriage equality, for not insisting on Leahy's amendment. But the accepted wisdom was that doing so would have sunk the bill. “If you just say no to everything that’s not perfect, you’re Ted Cruz,” said Garance Franke-Ruta, The Atlantic’s politics editor, on “Up With Steve Kornacki”—and not wrongly. But after a rash of press releases and furious phone calls, major gay rights groups—interest groups with no requisite loyalties to the immigration bill—pledged their support of the bill, too.
That, of course, is likely to sap any urgency out of a second attempt to pass Leahy’s amendments. Why, if they already have the gay establishment's support, would Democrats bother taking a risky stand on a measure universally opposed by the GOP? They almost certainly won't, and yet, few leading gay-rights advocates seem too perturbed by that.
Soloway is nearly alone in wondering if LGBT groups lobbied too softly for their priorities and caved too quickly. In the early ‘90s, he helped found Immigration Equality to work on this very issue, and he was one of the original proponents of equality for immigrants in same-sex couples. (He no longer works with Immigration Equality but has since co-founded the DOMA Project to fight for binational couples.) “We didn’t set up a situation where we signaled that a failure to stand up for us, even in rhetoric, would be a betrayal,” Soloway said Wednesday. “That’s devastating. Going to the floor now, we’re battered and bruised, with everyone, Democrats and Republicans alike, knowing that our closest allies didn’t stick by us.” In fact, major gay-rights organizations have stuck by Democrats despite the fact that members of the Gang of Eight privately lied to them about their commitment to same-sex protections and immigration. In late April, for example, after both the outline of the bill and the original language failed to protect gay couples, Rachel B. Tiven, who is now the executive director of Immigration Equality, told Politico, “I’ve gotten two ‘I’m sorry’ phone calls from Senator Schumer. I don’t want another one. … He has said it will happen in committee.” It didn’t happen in committee—as we saw last week, when Leahy gloomily declared, “I don't want to be the senator who asks Americans to choose between the love of their life and the love of their country,” and withdrew his amendments.
Tiven insists real damage has been done. “Very, very, very large donors to the Democratic Party have told me how angry they are, how much they feel politicians lied to them,” she said. But Tiven said she and her team are making an effort to emphasize the bill’s positives to their angry members, rather than weaponize their fury. Asked if her group ever had a conversation about withholding their support of the bill absent same-sex protections, she was unequivocal. “There is absolutely no suggestion of any kind that we don’t support this bill.”
Rea Carey, executive director of the National Gay and Lesbian Task Force, also supports the immigration reform bill. She said she expects the amendment to be reintroduced and that her group plans to redouble its efforts to “win senators’ hearts and minds” in the coming weeks. Sainz said HRC has no intentions of raining down political consequences before the bill goes to the floor, saying, “There is still an opportunity to get this right.” That is a generous reading of the situation, though. Even if Leahy's amendments were brought to the floor—and that's a big "if"—they would need 60 votes to overcome a Republican filibuster. I asked Sainz how HRC, not having enforced political consequences for the first failure, can still build the impetus to support it a second time. He spoke about communicating with senators again through HRC’s grassroots network. “Look, I think these are good questions, and we will cross that bridge when we come to it,” he concluded—as if the bridge were actually still before them.
What's more, it is not even clear how hard Democrats ever fought for same-sex equality in the bill. Republicans may have been serious when they said the Leahy amendments were a deal-breaker, or they may have been bluffing; the GOP, after all, needs immigration reform more than Democrats do. But Democrats besides Leahy don’t appear to have tested them. “We’ve been talking to Democrats and the Gang of Eight, quite a few of them, since the beginning of this process and way before that,” said Tiven. “All along the way, Schumer and the other Democrats had said, ‘Well, we haven’t talked about it, but don’t worry, we’re going to bring it up later. It’s better to wait and see.’” She said her group and others warned Democrats that this strategy would give Republicans time to “dig in” to the notion that same-sex equality would be an untenable addition to the immigration bill. And indeed, the more time that passed, Soloway noticed, the more frequently Gang of Eight members like Lindsay Graham could be heard saying a measure to “redefine marriage” would “kill the bill”, without public rebuke from Democrats in the Gang of Eight. (“No comment, no comment, no comment,” was Schumer’s reply when reporters tried to ask him about equality protections.) “Democrats let the Republicans insist that discrimination be baked into the bill,” Tiven said. And still, Democrats were rewarded with broad-based support from gay-rights groups.
As The New York Times detailed on Monday, these groups are defending their support of the bill by pointing to what it does contain. The legislation, as released by the Judiciary Committee, bans the common practice at immigration detention facilities of placing gay or transgendered immigrants in solitary confinement for “protection” from other inmates and repeals the one-year application deadline for asylum claims. Both are items gay rights organizations have long pushed for—the latter, because gays and lesbians who have fled state-sanctioned persecution may be reluctant to volunteer their orientation to the U.S. government. But, of course,the asylum deadline is not a gay-specific issue. Likewise, more than one advocate I spoke to cited the figure 267,000—the number of undocumented immigrants, as calculated by the Center for American Progress, who identify as gay, lesbian, bisexual, or transgender—essentially arguing that the bill is in line with gay-rights groups’ priorities because many undocumented immigrants happen to be gay.
Perhaps these groups are already looking ahead to the Supreme Court decision on the challenge to the Defense of Marriage Act, which could make all of this a moot point. A decision striking DOMA down would allow same-sex binational couples to petition the government for a green card, regardless of what happens with the immigration-reform bill. “If the Supreme Court strikes down DOMA … what went down in the Judiciary Committee will be forgotten,” said Sainz. “There will be no political consequences. It was all just a small little bump in the road on the way to equality.” Sainz meant this in a positive way. But the possibility that five justices will solve a problem the Senate wouldn’t tackle is worrisome. There are, after all, other gay-rights issues that cry out for federal attention—like the Employment Non-Discrimination Act, a bill to prohibit hiring discrimination based on sexual orientation. Last week, on the Leahy amendments, Democrats failed gay-rights groups—in the house of Congress the party controls, on a committee where it holds the majority by two seats. By rolling over so quickly, these organizations have weakened their position on equally contentious issues in the future. After all, Democrats now know they have nothing to fear from the gay-rights lobby.
Molly Redden is a staff writer for The New Republic. She tweets at @mtredden.