by TARA BORELLI,
STAFF ATTORNEY

Prop. 8 reaches further than marriage equality

Q: My partner does not have legal residency status in the U.S. If we get married in California or Massachusetts can I petition for her legal residency as my spouse?

A: Unfortunately, the marriage victories we’re celebrating in California and Massachusetts do not affect the discrimination in our current immigration laws against gay and lesbian binational couples. Federal law alone governs immigration, and the federal government currently refuses to recognize same-sex couples’ relationships or marriages for immigration purposes. Sadly, we’ve concluded that litigation in the area probably is premature given Congress’s extraordinary power and the Supreme Court’s recent extremely conservative tilt, since courtroom losses can create bad precedent that sets us back years. There is an important congressional effort to fix this legislatively with a bill called the Uniting American Families Act. This solution will likely take time, but it holds hope for many LGBT families. If you’d like to see positive change on this front, contact your representatives in Washington, or visit immigrationequality.org.

Relationship recognition isn’t the only immigration issue we face, however, as LGBT people in many other countries continue to suffer persecution of horrifying proportions. Asylum remains one avenue for legal status for LGBT people who don’t have a family relationship with a U.S. national, and face extreme persecution in their country of origin. Seeking asylum is very challenging generally and LGBT people have faced unique and steep barriers, though we have won some important progress in the courts in recent years. In the 1990s, Lambda Legal represented a Russian woman named Alla Pitcherskaia who had been subjected to forcible psychiatric treatment to “change” her sexual orientation. This case helped establish that forced “conversion” therapy is persecution that can entitle gay people to asylum even if the foreign officials believe they are helping their victims. A few years later we persuaded the Ninth Circuit Court of Appeals that it’s wrong to assume that gay people can escape persecution by hiding their sexual orientation. After all, we don’t assume people should hide their religious or political beliefs to avoid persecution. Despite some success, these cases are very tough to win.

Much needs to be done to convince Congress to adopt fair immigration laws for our families, so that we can immigrate our loved ones the same way our straight neighbors can. Nothing could be more important to that battle than preserving the progress we’ve already made. Having marriage equality in California will keep the door open for progress on issues like immigration; we urgently need to defeat Prop. 8 or risk that progress. Get involved now to defeat Prop. 8 by visiting noonprop8.com. For more information visit Lambda Legal’s Web site at lambdalegal.org, or call our toll-free Legal Help Desk number at 866/542-8336.