Obama administration should suspend deportations while high court considers Defense of Marriage Act

In the fight over same-sex marriage, there is a small population for whom the upcoming hearings at the U.S. Supreme Court could mean the difference between living together and being physically separated.

The Supreme Court decided late last week that it would take up two cases related to same-sex marriage: a New York case related to the federal Defense of Marriage Act and a California case about Proposition 8, the state’s voter-approved ban on same-sex nuptials.

Both of the cases are significant for the entire nation, depending on how the justices rule. In the fight over Prop. 8, certain outcomes could mean that same-sex marriages are approved or banned nationwide.

And, of course, a ruling on the Defense of Marriage Act, which President Bill Clinton signed into law, will have nationwide significance. Under the act, same-sex spouses are not eligible for federal benefits.

If the court strikes down DOMA, an act the Justice Department announced in January 2011 that it would not defend, same-sex couples across the nation would have the same rights to federal benefits now conferred upon marriages between a man and a woman.

While there are many important benefits that same-sex couples are now unfairly deprived of, visas may be one of the most heart-rending ones.

When an American citizen marries an immigrant of the opposite sex, the path to obtaining a visa, commonly called a green card, is considered relatively secure for the spouse. But no such right exists for same-sex couples.

One local example is the case of Bradford Wells and Anthony John Makk, a gay couple who married in Massachusetts in 2004 and who lived together in the Castro district. Makk is an Australian citizen who lived in the country without a visa since the federal government does not recognize his marriage.

Makk faced deportation in 2011, and the couple was spared forced separation when U.S. Rep. Nancy Pelosi personally intervened. Eventually, Homeland Security chief Janet Napolitano added same-sex couples to the list of low priorities of immigration enforcement.

Now, as the Supreme Court prepares to hear the appeal involving the clearly unconstitutional DOMA, dozens of gay-rights and immigrant advocacy groups sent a letter Monday to President Barack Obama asking the administration to put a hold on immigration cases involving spouses in same-sex marriages. In fact, it is not sufficient for the government to put such deportations on the back burner; it should shelve them entirely.

In the worst-case scenario, between now and when the Supreme Court rules on the act, immigration officials could deport the same-sex spouse of an American citizen. If the court overturns the act later, that person might be able to return to the U.S. and apply for citizenship, but it would be after months of heartache and would create a major disruption to the lives and finances of the affected couple.

Knowing that a ruling from the Supreme Court could change the entire landscape for visas for same-sex couples, the only right thing for the Obama administration to do would be to put all such cases on hold.

Nothing will be lost in waiting a few months to make decisions on these cases, but much could be lost by allowing any to move forward.

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