During the coming week, we could see two historic events: announcement by the US Supreme Court on the constitutionality of the Defense of Marriage Act (DOMA), and a Senate floor vote on S. 744, the comprehensive immigration reform bill. Both are likely to occur while this Seattle immigration lawyer and thousands of my fellow immigration lawyers from around the country will be convening at the annual American Immigration Lawyers Association (AILA) conference in San Francisco. (Something big always happens during AILA conferences. Last year, President Obama announced “DACA”, Deferred Action for Childhood Arrivals for the DREAM Act youth [as in the DREAM Act that has never been passed by Congress to date, but features of which are included in S. 744.] The year before, it was the administration’s Prosecutorial Discretion initiative. And the year before that, President Obama gave his lackluster speech on his plans to tackle immigration reform). In any event, this week, it’s a race to see who will make history, if any: how will the Supreme Court rule on DOMA and whether the Senate will allow voting on Senator Patrick Leahy’s amendment to permit equal treatment of same-sex couples under immigration law, among many other features of the Senate bill.
On June 11, 2013, Senator Leahy (D-Vt) introduced Amendment 1182, also known as the Uniting American Families Act, during which time many other amendments were introduced. However, amendment 1182 was “ordered to lie on the table,” which means it is not debatable but could come up for a vote at a later time, no doubt, after the Supreme Court decision, if it rules that DOMA is unconstitutional. If the Supreme Court does not act in favor of LGBT families, in theory, the Congress could pass a bill or an amendment to this bill to create a specific right for same-sex couples to gain immigration benefits. However, this is very unlikely in the context of S. 744, given the make up of the House and and the other features of the bill that need to pass, and because the conservative wing of the GOP would be “vindicated” by the Court if it issues a negative reaffirming DOMA.
Meanwhile, on June 20, Senator Leahy introduced a Manager’s Amendment to get the most non-controversial amendments moving in the Senate in the next few days. Previously, when S. 744 was before the Senate Judiciary Committee, Senator Leahy withdrew his amendment in order to save the overall bill from what would have been certain demise by the GOP conservatives who felt LGBT equality would kill the bill. Taking much heat from that move, Senator Leahy re-introduced his amendment again on the Senate floor, no doubt to preserve his legacy on the issue and just in case the Supreme Court gives DOMA its demise. The full Senate is scheduled to vote on the S. 744 after debate on the amendments, supposedly by the end of this week. Then it will face a nasty battle in the House, if the House can even come up with its own comprehensive bill over the summer. Right now, the House is working on piece meal legislation instead, most of which deals with enforcement.
I mentioned the two cases before the Supreme Court in my prior post on the subject, Immigrants and LGBT Activists Working Together. The first case, Hollingsworth v. Perry, is the California Prop 8 case, which if decided in favor of LGBT families, could ultimately be limited by the Court to California couples. The other case involving an estate tax matter, Windsor v. US, could very well be the more decisive case on equal protection. For an easy to understand analysis of both cases, see the Scotus Blog analysis. And for all the combinations and permutations of what could happen between the Supreme Court and Congress, ABC News has an informative comparison.