By Clement Lee, Detention Staff Attorney
A week ago, a federal judge struck down the Texas ban on same-sex marriage, only to delay enforcement of that decision until a federal appeals court makes a final ruling. Still unable to wed in their home state, binational same-sex couples in Texas continue to live with the unsettling anxiety that deportation could tear them apart.
Even after the Supreme Court’s Windsor decision struck down section 3 of the Defense of Marriage Act, 33 states maintain statutory prohibitions against same-sex marriage. To marry, same-sex couples living in these states have little choice but to travel to a marriage-equality state. For many Americans, this type of interstate travel is such an ordinary commute that they barely give it a second thought. However, for undocumented LGBT immigrants, travelling to another state is an endeavor not taken lightly, one that can carry with it fears of arrest, detention, or deportation.
This is particularly true in Texas.
Like other border states, Texas occupies a unique place in the national discussion of American immigration policy. As the United States reduces its presence abroad in Iraq and Afghanistan, it has only increased the militarization of the United States/Mexico border. A 700-mile fence, drones, night vision goggles, and infrared sensors punctuate the border region, transforming it into one of the most heavily surveilled regions in the world. A special exception to constitutional search and seizure protections applies to a vast, border-adjacent area in these states, allowing immigration authorities to set up random checkpoints, interrogate people, and search their belongings. If immigration authorities determine that someone lacks the legal right to remain in the United States, that person can be detained and deported.
Bleak choices face LGBT immigrants in Texas who wish to marry their partners in a marriage equality state. They might choose to brave the nerve-wracking trip to neighboring border state New Mexico, keeping fingers crossed that they can avoid stops at roving immigration checkpoints. Alternatively, they might choose the harrowing, thousand-mile drive though Oklahoma, Kansas, and Missouri to Iowa, the next-closest marriage equality state. Because border control officials are a frequent presence on airplanes, trains, or buses, these immigrants often have no choice but to brave the 14-hour drive, knowing that a simple traffic stop could result in deportation.
In striking down Texas’ same-sex marriage ban, the federal judge ruled that “[w]ithout a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution.” Yet precisely that state-imposed inequality continues to affect the lives of our clients in binational couples who live in states that prohibit same-sex marriage. Immigration Equality stands in solidarity with state marriage equality campaigns and other movements to end outmoded, discriminatory laws that systematically classify LGBT folks as an inferior class of people.