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< Back to current issue of Immigration Daily

Bloggings on Immigration Law

by Roger Algase

Bloggings: Same sex marriage and immigration, continued. By Roger Algase

President Obama has been rightly criticised  by just about everyone, even Republicans (more than a little hypocrisy there) for promising the sun, the moon and the stars about immigration reform and then doing nothing about it. That is, unless deporting almost 400,000 people per year, compared with an average of 250,000 deportations per year under George W. Bush, can be called "reform". Therefore, there is reason to be more than a little sceptical of the president's sudden "evolution" on the issue of gay marriage, especially since, unlike most types of evolution, this one was helped along by a vigorous push from Vice-President Biden, something that would no doubt have baffled Charles Darwin.

(Of course, one could argue that "natural selection" was at work in this instance too, depending on which voting blocs President Obama naturally wanted to select.)

But, Krauthammer, a reactionary neocon whom I cannot recall ever having agreed with before, in this case raises an interesting issue by pointing out that there are a number of different possible justifications for recognizing same sex marriage, and that it can make a difference which of these one relies on. Certainly, it will make a difference when the question of recognizing same sex marriage goes up to the Supreme Court and oral argument takes place before Justice Scalia, who dissented from that Court's decision a few years ago decriminalizing same sex activity on the grounds that doing so would advance a "homosexual agenda". What great tolerance and open mindedness we can expect from this jurist, when the issue of gay rights comes up.

According to the most comprehensive and thoughtful discussion of this issue that I have seen, in a book by Evan Gerstmann called "Same-Sex Marriage and the Constitution" (2nd Edition, Cambridge University Press, 2008), it is a misnomer to talk about "gay rights" just as it is to talk about "women's rights". Same sex marriage involves fundamental human rights, including the right to marry and the right to be free from discrimination and persecution.

One could just as easily say the same thing about the term "immigrant's rights". They also involve the rights of all of us, including those who are so avidly trying to deport more people than at any time in our history. It is time for President Obama to start recognizing these basic human rights.

One way to do this would be by putting his administration's deportation mania into reverse, including, but not limited to, immediately ending deportation of legally married same-sex partners with US citizen or LPR spouses. Another would be to recognize same sex marriages for green card and other immigration purposes, as civilized countries such as Australia do. I will have more to say about this.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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