Patrick Leahy

In front of an unusually combative U.S. Senate Judiciary Committee, former Republican U.S. Rep. Jim Kolbe urged members on Monday (April 22) to “fix” the current immigration reform bill by adding language to help LGBT citizens with foreign partners or spouses.

Kolbe, 70, who came out as gay in 1996 after voting for the Defense of Marriage Act (DOMA), said the immigration bill introduced this month as a political compromise between Democrats and Republicans, is “still incomplete” because of its “omission of lesbian, gay, bisexual, and transgender families.”

Kolbe spoke of his same-sex partner of eight years, Hector Alfonso of Panama, noting that the men plan to marry in Washington, D.C., this May. While Alfonso now has the legal authorization to stay in the United States, said Kolbe, “many other couples are not so fortunate.”

“This committee has an opportunity to fix that problem,” said Kolbe, urging the committee to add language from the Uniting American Families Act (UAFA). The UAFA, sponsored by Judiciary Committee Chairman Patrick Leahy (D-Vt.), is a stand-alone bill that seeks to allow a U.S. citizen to gain citizenship for his or her “permanent partner.”

Kolbe said the UAFA language would make a “profound difference in lives of many Americans” and ensure that LGBT people are “not torn apart from loved ones.”

Leahy is expected to introduce the language as an amendment to the current bill when the Judiciary Committee does mark up next week, but Republicans on the committee are expected to oppose it, and some Democrats on the committee have been relatively quiet on the issue in regards to the current bill. One of those Democrats, Charles Schumer of New York who was part of the “Gang of Eight” senators who drafted the overall compromise bill, appeared to be glowering at Kolbe during Kolbe’s testimony. In his own opening statement Monday, Schumer said only that the committee should consider “all amendments.”

Senator Dick Durbin (D-Illinois) is not a co-sponsor of the UAFA stand-alone bill but he is a strong supporter of equal rights for LGBT people. He made no comment regarding protections for LGBT people in the compromise immigration bill Monday and a press spokesperson did not respond to a request to explain why the bill does not include LGBT language.

Senator Dianne Feinstein (D-Calif.) said Monday she hopes the compromise bill will pass “unamended,” then quickly added, “perhaps there will be a few things.”

While Schumer is a co-sponsor of the UAFA stand-alone bill, Feinstein has not yet signed on, she made no mention of LGBT language during Monday’s hearing, and her office did not respond to a reporter’s call to explain why no LGBT provision was included in the compromise bill. While not a member of the Gang of Eight, Feinstein was heavily involved in drafting the bill’s agricultural provisions.

“I certainly hope, given her large LGBT constituency and her support of ending discrimination against the community, that the Uniting American Families Act will be one of the things she supports as the bill makes its way through the Committee,” said Steve Ralls, a spokesman for Immigration Equality. Immigration Equality is a group working to secure legal protections for the partners and spouses of LGBT people.

Ralls noted that Feinstein has been supportive of LGBT citizens with bi-national spouses. She has repeatedly introduced a private bill seeking permanent resident status for a lesbian, Shirley Tan, to enable her to stay with her same-sex spouse and two children in Pacifica, California. Feinstein most recently re-introduced the measure on March 18. The private bill enables Tan to stay in the U.S. as long as the private bill is pending or passed.

Some Democrats on the Committee did express concern about the lack of protection for LGBT couples in the immigration bill.

In his opening statement for the hearing, Leahy acknowledged, “I am disappointed that the legislation does not treat all American families equally.  We must end the discrimination that gay and lesbian families face in our immigration law.”

Senator Al Franken (D-Minn.) said he has heard from many of his LGBT constituents and that he would do “everything we can to try and see if we can amend this bill” to protect LGBT citizens.

Senator Amy Klobuchar (D-Minn.) asked Kolbe what effect there would be on immigration reform if the U.S. Supreme Court strikes down the Defense of Marriage Act (DOMA). The court is expected to issue an opinion on the constitutionality of the law, which bans recognition of same-sex marriages, by the end of June.

It’s a question on the mind of LGBT activists. Presumably, if the Supreme Court strikes down DOMA’s ban on federal recognition of same-sex marriages, then married same-sex couples will be eligible for the same protections as married heterosexual couples under whatever immigration reform passes. And Immigration Equality’s Ralls notes that the legal precedent in immigration law is to recognize marriages based on the state in which the marriage is licensed, not on the state in which the married couple resides. So, if the existing bill passes Congress and the U.S. Supreme Court strikes down Section 3 of DOMA, LGBT people legally married to same-sex foreign nationals will presumably be able to gain legal immigration for those same-sex spouses even without inclusion of the UAFA language.

“Couples in non-marriage states could travel to marriage equality states to get a marriage license, then return home and apply for a green card,” said Ralls. “A couple in Virginia could go to [Washington] D.C., marry, and then apply for a green card in Virginia.”

But Ralls and others say they don’t want to rely on the Supreme Court decision to secure equal rights for LGBT couples.

Winnie Stachelberg, executive vice president for the Center for American Progress and a veteran openly gay activist, said, “You can’t work on legislation in anticipation of a particular Supreme Court ruling.” And Stachelberg said it is hard to predict the process by which UAFA would come before the Senate.

“We assume every amendment will need 60 votes,” she said.

That’s because the Senate’s partisan bickering has evolved into an environment where a procedural vote is required in order to hold a vote on the merits of any action. The procedural motion (known as cloture) requires 60 votes. So, if the UAFA goes into the bill in Committee, where Democrats have a majority, any effort to strip out that language on the Senate floor would likely require 60 votes to gain cloture before proceeding to the vote to strip the language.

“Given the number of senators who have come out for marriage equality in recent weeks, are there 60 votes to strip out bi-national couples from the underlying bill?” asked Stachelberg.

But even if the UAFA language passes the Senate, the Republican-led House version of immigration reform will almost certainly not include it.

“It will not be the senate bill,” said Stachelberg.

Congress is expected to vote on the proposed immigration reform bill in June.

“Some of our opponents on [the Senate Judiciary] Committee are among our most vocal opponents in Senate as a whole,” said Ralls. “We expect considerable opposition” from such members as Lindsey Graham (R-SC) and Jeff Sessions (R-Ala.).

On the floor of the Senate, other Republicans likely to oppose inclusion of UAFA language include Senator John McCain (R-Ariz.). Appearing at a politico.com-sponsored forum on immigration in January, McCain indicated he would be opposed to efforts to “load this up with social issues and things that are controversial.”

“Which is more important, LGBT or border security?” asked McCain. “I’ll tell you what my priorities are. So, again, if you’re going to load it up with social issues, that is the best way to derail it in my view.”

The immigration bill before the Committee this week is the “Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). It is the compromise reached by four Democrats and four Republicans, dubbed “The Gang of Eight,” including such pro-LGBT senators as Schumer and Illinois’ Senator Dick Durbin. The other two Democrats are Bob Menendez of New Jersey and Michael Bennet of Colorado. The four Republicans in the Gang of Eight include McCain, Graham, Jeff Flake of Arizona, and Marco Rubio of Florida.

Generally, the bill has things to commend and condemn. It provides a means by which people in this country without authorization could earn a “green card” for permanent immigrant status. But the means for doing so is long and cumbersome. Most people would not be able to apply for a green card until they’ve been here for at least 10 years, and they would not be able to apply for citizenship until another three years after that.

Immigrants with green cards would be able to immediately petition to bring their opposite sex spouses and children to the U.S., but those without green cards would have to wait the 10 years until they get the green card to do so. And those who obtain citizenship would not be able to petition to bring their siblings to the U.S.

But despite the fact that the bill is a bi-partisan effort, tensions over immigration continue to erupt in the Senate. On Monday, during Schumer’s opening remarks –that some Republicans were trying to use the recent Boston marathon bombing as a reason to delay consideration of the bill—Committee ranking minority member Charles Grassley (R-Iowa) interrupted with a loud and angry outburst to declare “I never said that, I never said that,” pointing his finger at Schumer.

This month’s hearing is the fourth on immigration before the Judiciary Committee thus far this year, seeking to address issues related to an estimated 11 million immigrants in the U.S. currently who do not have government authorization or documentation to be here. The issues include such things as the separation of family members, the need for agricultural workers, a desire to help people brought to this country as children without documentation, among others.

The Williams Institute estimated in November 2011 that there are approximately 28,500 bi-national same-sex couples in the United States. About one in four of these couples include a partner from Mexico, eight percent from Canada, and six percent from the United Kingdom. About one-fourth of the couples reside in California, 13 percent in New York, nine percent in Florida, six percent each in Illinois and Texas, and four percent in Massachusetts.

Two other of the 20 witnesses also mentioned LGBT families at the April 22 hearing.

Janet Murguia, president of the National Council of La Raza, an Hispanic civil rights group, said the immigration bill is a “significant milestone” but she expressed some concerns, including its failure to “keep pace” with the country’s “changing society.” She said it sends “mixed messages on family immigration,” abandoning the country’s “historic commitment to family unity” by eliminating some families, including bi-national same-sex families.”

And Laura Lichter, president of the American Immigration Lawyers Association, said, “For LGBT couples, an individual married in the United States but who does not have another way to stay in this country, that individual is at a roadblock and cannot immigrate under current law or even under the current proposal.”

President Obama told a “web chat” in February that LGBT couples “should not be treated differently when it comes to any aspect of American life, and that includes our immigration laws.”

Monday’s hearing, said Immigration Equality’s Ralls, was “an important reminder to senators of both parties that this is a bipartisan problem, impacting both Democratic and Republican families, and fixing it deserves bipartisan support.”