We all exhaled when the Prop 8 ruling at last placed marriage equality, for now, in the constellation of basic rights enshrined through centuries of political struggle.

Whatever your opinion of marriage as an institution, as my Colorlines colleagues point out, the ruling articulates why same-sex couples deserve full recognition under state and federal law. Judge Walker explained the durability of the right to marry even as society’s beliefs on race and gender relations evolved:

When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change…. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. … Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. … Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

But the right to marry could soon become very different in its impact on couples who struggle against other social barriers, including immigrants and people of color.

The New York-based Immigration Equality represents thousands of couples threatened with separation under immigration restrictions that don’t recognize their partnerships. The group has pinned its hopes on an earlier district court ruling in Massachusetts against the federal Defense of Marriage Act. With that decision still in limbo, the final Prop. 8 decision could be a long step forward for binational couples trying to make marriage work across borders.

Immigration Equality’s Legal Director Victoria Neilson blogged that the ruling was “another clear sign that history is on our side.” However, she wrote, “Because this is a first step in a longer legal battle, there will be no direct benefit to binational couples for now. We’re still reading and digesting the decision and will blog again shortly about its implications. For now, let’s take a moment to celebrate.”

…And hope the moment lasts. Given the complex entanglement of state and federal DOMA-type restrictions, the group advised transnational LGBT couples that access to federal benefits could expand, but state rules might still pose a hurdle:

If, eventually, the Supreme Court upholds the ruling that DOMA is unconstitutional, same sex couples that are validly married, would be able to receive federal benefits, including immigration, based on their marriage. Basically, this would mean that binational couples who live in the handful of states that allow same sex marriage could get immigration benefits, and couples who live in states with mini-DOMAs could not.

Judge Walker’s opinion cites both the federal DOMA and California’s similar bar on same-sex marriage in its interpretation of the 14th Amendment. The Globe and Mail’s Konrad Yakabuski notes:

This marks the first time an American court has established that gays and lesbians have a right to marry under the U.S. Constitution’s equal-protection clause. Previous legal victories - in Massachusetts, Connecticut and Iowa - applied only to state laws and constitutions. They did not extend gay rights beyond state borders. Judge Walker’s ruling, if upheld by the Supreme Court, would apply nationally.

Yet according to Immigration Equality’s earlier DOMA analysis:

Certainly a victory in the Supreme Court striking down the federal recognition section of DOMA would be a huge victory for binational couples (at least giving them the option to move to LGBT friendly states to pursue immigration benefits.) Meanwhile, we must continue to push for passage of an LGBT inclusive [Comprehensive Immigration Reform] and for passage of the [Uniting American Families Act].

Those last two legislative initiatives involve incorporating LGBT-conscious language in reforms to family unification and sponsorship policies—another often-overlooked facet of the immigration debate.

So celebrate today, but hold that sigh of relief. With the LGBT, immigration and racial justice movements bonded in the cause of civil rights in matrimony, all these communities can now get back to work together, to harmonize their agendas for inclusive change that leaves no one behind.

Read this online at http://colorlines.com/archives/2010/08/marriage_equality_without_borders_prop_8_and_immigration.html


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