On Deportations, LGB 't' Advocates Walk a Fine Line

Latina/os, like myself, who identify as LGB ‘t’ find it difficult to prioritize their politics–as in–it is difficult enough to work through the politics of something like obtaining legal status as an undocumented person, to then add the fact of being LGB ‘t’, simply because one has to deal with two undervalued social categories instead of one. A perfect example of this are the negotiations about immigration reform as they relate to same-sex married couples.

Currently, congressional advocates for LGB ‘t’ immigration reform are reintroducing the Uniting American Families Act (UAFA) and will release a letter from forty-eight House members urging the Obama administration to suspend deportations faced by married same-sex couples. The UAFA prevents the deportation and separation of families due to legal status that may either vary or be in negotiation. The letter aims to make UAFA inclusive of same-sex couples by the recognition of the Obama administration, including the Department of Homeland Security. The problem however, are bureaucracies like the Board of Immigration Appeals that have Section III of DOMA on their side, which prohibits immigration relief to married same-sex couples.

So they think.

The Obama administration is already showing leadership by defending the rights of same-sex couples facing deportation, even without UAFA. Attorney General Holder took a bold step, by vacating (makes a previous legal judgment legally void) a decision where the Board of Immigration Appeals applied DOMA. Adding to the good news, King & Spalding, the law firm that GOP leadership hired to defend DOMA in court, dropped the case.

Lavi Soloway, attorney and co-founder of Immigration Equality comments on Holder’s decision: “This is precisely why we must continue to advocate for the executive branch to implement administrative remedies to keep couples from being torn apart, remedies which include instituting a moratorium on deportations.” I could not agree more. Historically, the rights of the few have been protected by the few — executive branch and the Court. The Obama administration, and similarity the Court, need to bring DOMA to an end. I can not stress the danger of negotiating LGB politics in legislatures. We need aggressive executive leadership that will transform into solidified constitutional precedent once the Court repeals DOMA. Legislatures are not the answer, and neither are “the people”, as referendums are notoriously reactionary. Think of history: Brown v/s Board of Education? Or a public vote on integrating public schools? Trust the Court. Trust the administration, despite their faults, and there are many, they are allies to the LGB community. Next, they need to advocate for federally recognized protection of gender and gender expression.

With that said, I strongly advise gay rights advocates for same-sex marriage to pick their battles very carefully. Stepping into the debate with the equality flag will only give anti-immigration advocates tools to twist the debates in their favor. Similarly, I think the same-sex marriage issue will fix itself with the repeal of DOMA, which I strongly believe will happen. We have the entire administration on our side, including the legal leadership of Holder, public opinion on our side, and most importantly, a somewhat progressive Court, that I am sure, is insightful enough to know how catastrophic a constitutional ban on same-sex marriage would be. We have nearly 60 years of precedent supporting “privacy”.

GOP Hired Law Firm Drops DOMA Case

Published in DailyGrito

This week, the Atlanta-based law firm, King & Spalding decided to not defend DOMA. The firm was hired by House Republicans to defend the constitutionality of DOMA, (Defense of Marriage Act) which prohibits Federal recognition of same-sex marriage partners. Shortly after the firm announced that they would no longer defend DOMA, Paul Clement, a partner at King & Spalding, former solicitor general under George Bush Jr., and the leader of the case, resigned. He nobly stated, “I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” Of course, Mr Clement also added that his personal position on same-sex marriage was irrelevant, as he quickly partnered with Veit D. Dinh’s notoriously conservative firm, Bancroft PLLC and will proceed in his heroic defense of DOMA. I am sure Mr. Clement is just being a responsible lawyer and does not have any ideological bias in defending the blatantly bigoted DOMA policy.

Well, Mr. Clement, you are going to loose.

King & Spalding’s decision to not defend DOMA is part of a growing pattern. Although bias and bigotry against LGB ‘t’ people is alive and well, greater consciousness about justice is moving past the personal and into systemic. Powerful systems like the Obama administration, and especially the US Department of Justice, are taking historic positions in not supporting discrimination, deeming DOMA as unconstitutional, and furthermore bring into question a large question of fairness--refusing to side with bigotry.

This systemic change also reflects public sentiment. It is becoming increasingly unpopular for law firms to defend anti-gay laws, because their image suffers and people will not support them financially or politically. Outside of the Ken Starrs of the world, not many people want to do business with bigots. People overwhelming support the rights of LGB people, especially marriage. I say, “LGB”, because Trans people are still completely off the radar in terms of Federal and even State discussion about their rights. They are still worried about basic survival, so debates of something as mainstream as marriage is one of their least relevant considerations.

The most important contribution about this moment, to me, is that it gives us a positive starting point to begin the legal negotiations of DOMA, which I believe will lead to a successful repeal.

My position on same-sex marriage is a complicated one, but above all, the repeal of DOMA will do a historic thing. It will return a huge sense of self to LGB ‘t’ people. Preventing the potential for something as catastrophic as a constitutional amendment that would ban same-sex marriage is an important step for the entire United States. We need to finally put an end to DOMA and the ludicrous notion that sexuality should be negotiated in courts.