March 27, 2013 -- The issue of whether the federal government's definition of marriage should expand to include gay couples that's currently making its way through the U.S. Supreme Court is particularly poignant for immigrant couples like Santiago Ortiz and Pablo Garcia. The ruling could mean a lifetime together or the constant fear of separation.
Ortiz, a Puerto Rican-American who was born in New York, and Garcia, a Venezuelan native, fell in love a quarter century ago and married in Connecticut in May 2011. The couple wanted to live together, especially since Ortiz is HIV-positive and they were unsure how long he might have. So Garcia got a six-month tourist visa in the late 1980s and was able to renew it for one year.
But the federal government doesn't recognize the two men as relatives, meaning Garcia cannot get a green card as Ortiz's husband. Unable to renew the visa again and ineligible for a green card, the couple made the decision to have Garcia stay in the country without papers, and he has lived that way for more than 20 years.
Heterosexual couples who marry simply file a petition to allow their immigrant spouse to remain in the country. However, the Defense of Marriage Act, which currently defines marriage as between one man and one woman, complicates the issue. It denies federal benefits to same-sex couples, and as federal law, it trumps recognition of gay marriage by individual states like Connecticut.
That could all change, however.
The Supreme Court will hear arguments today that challenge the constitutionality of DOMA. The case, United States v. Windsor, questions whether Congress can pass laws that treat married same-sex couples differently than opposite-sex couples. While the case doesn't consider the constitutionality of gay marriage itself, a ruling in favor of DOMA's opponents could mean benefits for gay couples, including the right to remain in the country through a green card.
The U.S. government actually opposes DOMA on the grounds that it violates the equal protection clause of the Constitution. But since it is still the law, the administration is charged with enforcing it. There have been some victories, if not concrete protections, for same-sex couples, though.
Department of Homeland Security Secretary Janet Napolitano said last fall that the department will recognize gay spouses as being the same as heterosexual spouses when weighing whether to deport someone. But it's not the same as full equality. And it doesn't change the undocumented status of many same-sex couples.
Living an undocumented life has been particularly difficult for Garcia, because it means he cannot return to Venezuela to see family, including his ailing mother.
"I love New York City; it's my adopted city," Garcia said in Spanish. "But my life has been without travel, without work."
But last week, circumstances drastically improved for the couple. Garcia learned that he has been granted deferred action, which will give him temporary legal status and the ability to apply for work authorization. He was also recently added to the lease for the apartment the two share.
"Those small things make us happy," Ortiz said.
Immigration Equality, a marriage-equality advocacy group, has filed its own suit challenging DOMA. Ortiz and Garcia are two of the plaintiffs. That challenge is on hold, however, pending a ruling on the current DOMA case.
Steve Ralls, a spokesman for the organization, estimates that there are about 36,000 gay couples like Ortiz and Garcia, where one or both people in the relationship are not citizens or legal residents. There is no good estimate on how many people within that figure are undocumented.
"We believe that, if the High Court finds DOMA unconstitutional, that couples like Pablo and Santiago will be immediately eligible to petition for all federal benefits including immigration status," Ralls said, "and Immigration Equality is prepared on the day that ruling comes to begin asking for green cards on behalf of families."
"It has been a long, long struggle to survive like this as a couple," Garcia said. "I am very proud, very, very proud. Through my life and our lives, I've realized it's important to say what you are, like, 'This is me.'"