Dan Brotman is a gay man from Massachusetts. So, legally, he can marry his fiancé, Keith. The only catch is that Keith is South African – so unlike heterosexual couples, Keith is not allowed to enter the U.S. as Dan’s legal spouse.
As a same-sex bi-national couple, Dan and Keith are not entitled to the same rights and protections as heterosexual couples. In order to live together, they have to live in South Africa.
Unfortunately, an amendment to the immigration reform legislation Congress is currently debating, which would have protected bi-national same-sex couples like Dan and Keith, was recently withdrawn. Now, the issue is left to the Supreme Court, which is scheduled to rule on the legality of the Defense of Marriage Act (DOMA) this month. If DOMA is ruled unconstitutional, it will no longer be legal to deny Dan and Keith the rights that heterosexual couples enjoy.
36,000 same-sex bi-national couples living in the United States and thousands of gay Americans forced into exile abroad were failed by both the Senate and the Democratic Party; the latter we expected to support us during our greatest moment in immigration reform history. Thousands of gay Americans living abroad would love nothing more than to be able to live back in our country, where we would be creating jobs and contributing to the economy and society.
When Senator Leahy proposed an amendment to the proposed immigration bill that would have protected us, he highlighted the heart wrenching dilemma in which same-sex bi-national couples are placed: “I do not believe we should ask Americans to choose between the love of their life and love of their country.” Yet, this is exactly what the Obama administration and Senate Democrats asked us to do when they caved into bigotry and asked Senator Leahy to not call for a vote on the amendment.
As an American Jew, the experience of legislated second-class citizenship is a painful recurrence in my people’s history. Spain’s Edict of Expulsion, Russia’s May Laws, and Germany’s Nuremberg Laws disenfranchised my ancestors and forced many of them to go into exile. Such legislation against Jews in the Russian Empire even forced Senators Chuck Schumer and Dianne Feinstein’s grandparents to immigrate to the United States, where they knew their children and grandchildren would truly experience what it means to be equal under the law.
Like tens of thousands of gay Americans, I met and fell in love with a foreigner, who in my case is my South African fiancé, Keith. Although both opposite and same-sex couples can get married in 12 states (including my own, Massachusetts) and the District of Columbia, only opposite-sex marriages are recognized under current immigration law. This discrepancy diminishes same-sex relationships to “skim-milk marriage,” whereas our heterosexual brothers and sisters are afforded “full marriage,” in the words of Justice Ruth Bader Ginsberg. Due to the Defense of Marriage Act and our discriminatory immigration system, I was forced to uproot my life in Boston and expatriate 7,692 miles away in order to live with my partner.
For the past three years, I have been living in South Africa, where 90% of the population was relegated to second-class citizenship for most of the country’s history. Keith was born during the height of apartheid and was classified by the government as “Colored,” which meant that he did not have the right to live in the same neighborhoods, attend the same universities, or be eligible for the same employment opportunities as his privileged white compatriots. Non-white South Africans’ experience of legalized discrimination is not dissimilar from that of our Jewish ancestors in Tsar Alexander III’s Russia, where Jews were barred from living in most of the country, obtaining higher education, and entering many professions.
During apartheid, gays and lesbians were not afforded any legal protection. When the country transitioned to democracy in 1994, its Constitution became the first in the world to outlaw discrimination based on sexual orientation, as well as race, gender, disability, religion, conscience, belief, culture, language, and birth. South Africa began to recognize same-sex relationships for immigration purposes in 1999, and became the first and only African country to legalize same-sex marriage in 2006.
Many of the US’ closest allies, including Australia, Colombia, Israel, and the UK, do not have same-sex marriage, but recognize same-sex relationships for immigration purposes.
Thousands of gay Americans living in exile desperately needed to be included in the immigration reform bill so we can move home. If South Africa could enact immigration equality only five years into its democracy, I am confident that the time has come for us to do the same in the United States. It now looks like the only way this is going to happen is through a Supreme Court ruling next month.