Yesterday evening, Senator Pat Leahy filed an amendment to the comprehensive immigration reform package that would allow citizens to petition for green cards for their foreign same-sex partners—just as straight couples can under current law. And if this sounds familiar, it’s because Leahy filed a very similar set of provisions in May, when immigration reform was before the Senate Judiciary Committee. In that committee, although Democrats held it by two seats, member after Democratic member dolefully admitted that they would not be voting for Leahy’s amendments, and he withdrew them.
Leahy’s amendment stands no better chance of survival now that the bill is on the Senate floor. As I wrote late last month, gay rights groups probably missed their last real chance to ensure same-sex equality was a part of immigration reform when they failed to condition their support for the bill on the Judiciary Committee’s inclusion of Leahy's amendments—if they hadn’t already lost it during Gang of Eight preliminary negotiations. When Judiciary Committee Democrats failed them, umbrella organizations such as the Human Rights Campaign protested loudly, but also immediately reiterated their support of the bill. (Partially on the strange logic that because some affected immigrants happen to be gay, the bill is pro-LGBT.)
Today, Senators Harry Reid and Mitch McConnell have not even indicated whether Leahy’s reincarnated amendment will come to a vote. And with the Supreme Court decision on DOMA due out this month—a sweeping opinion that sides with the anti-DOMA crowd would remove the same barriers Leahy is trying to address—there is little political upside to considering an amendment Republicans have successfully branded a “poison pill.”
Yet as we prepare for Leahy’s amendment to die, it’s worth considering what its actual content has to tell us about the fight for gay-marriage equality. Leahy’s amendment, after all, not only differs from what gay rights groups have been agitating for throughout the comprehensive immigration reform process; it’s better. Groups like HRC had been fighting for a provision named the Uniting American Families Act (UAFA), which did not recognize same-sex couples as equal to heterosexual couples, but created for them a separate legal category that the U.S. government could recognize in spite of DOMA. Leahy’s amendment, on the other hand, is a straight up middle-finger to DOMA—a carve-out that rendered same-sex couples equal to heterosexual ones in spite of that law.
In short, gay rights groups had the muscle to pick a better fight than they were asking for, and even they didn't know it. “Maybe that’s a sign of our success,” says Lavi Soloway, an immigration attorney who has long fought for the rights of gay “binational” couples and co-founded the DOMA Project. “But also, in some ways, it may tell us something about how we [the gay rights lobby] used our resources, and the choices we made in our own advocacy. … We were quite measured in our approach. We addressed the law as if we were unequal.” Leahy, meanwhile, although he’s also introduced a version of UAFA to the Senate, outran the movement—and how often does a 73-year-old senator do that? Last month, I argued that gay rights groups needed to up the stakes behind their demands the next time they make a pass at such meaningful legislation. Even if it’s doomed to fail, the content of Leahy’s amendment is a sign that they should feel confident upping their demands, period.
Molly Redden is a staff writer at The New Republic. Follow her on Twitter at @mtredden.