One of the reasons we're supposed to care less about gay marriage than about black civil rights is that the stakes are so much lower today. Then it was about what might be called basic freedoms to live and work. Now it's about secondary rights such as inheritance and health care, things that can be addressed by contract law. As Sen. John Kerry (D-Mass.) said in a February presidential debate, at the center of the gay marriage debate is "terminology."
Tell that to David Kloss. In the summer of 2001, the 54-year-old oil exploration manager made a terrible mistake: He fell in love with a Canadian. Soon, he faced a choice shared by thousands of American citizens: Leave the man he loved, or leave the country.
The source of the dilemma is federal immigration law, which is based on the seemingly innocuous principle of "family reunification." Kloss' partner, Remi Collette, 35, moved to San Francisco to join him. But Collette was officially a tourist. He couldn't work legally, and he couldn't stay indefinitely. If Kloss and Collette had been a straight couple, they would have counted as a "family." Getting papers and eventually citizenship would have been a routine, bureaucratic process. As gays, they faced a stark choice: break the law with illegal work or a sham heterosexual marriage, or join the diaspora of self-described "love exiles."
"You go through life, you think you're American, you think you're in the land of the free," Kloss says. "Then suddenly I come to a situation where Remi couldn't stay, and my country says you either have to give up the man you love or get out."
A group that represents cross-border gay and lesbian couples, Immigration Equality, estimates that there are more than 25,000 such couples in the United States. Many break the law. They place advertisements like this one in The Washington Blade, a gay paper: "Marriage-Minded GWM/GAM couple (1 American, 1 foreign), seeks lesbian couple (1 American, 1 foreign) for marriages of mutual interests."
That's a risky move, however, one that carries penalties of imprisonment and deportation. So in 2002 Kloss sold his beloved house in the center of San Francisco, with its view of the Marin headlands, and moved with Collette to Toronto. Last year they were married under Canadian law, which allows gays to bring in partners.
Kloss was lucky to have even that choice. If the partner doesn't hail from one of the countries with such a policy (which also include the United Kingdom, Israel, and several European states), gay couples find themselves perpetual tourists, insecure and unemployable.
John Sutton, for example, fell in love with a Mexican interior decorator who was working illegally in San Francisco. Sutton, 38, left a job as an office manager for a coffee company, put his possessions in storage with friends in Fremont, and moved to Mexico—where he can't work—to be with his partner, Max. Sutton returns every six months to renew his tourist visa and take temporary employment.
"Our option was leave the U.S. or not be a couple, so it wasn't really a choice," he says. If Max were a woman, they could have married and set her on the fast track for a green card. Instead, Sutton was left watching the esoteric debate over gay marriage with something like envy. "Inheritance and hospital visitation rights and all of those things are great—but we would be thrilled just to live together here [in the U.S.]," he says.
So far, stories like Sutton's have not been heard much in the fight over gay marriage. That's partly because advocates of gay immigration rights try to keep the issue distinct from the charged marriage debate. But the argument for gay marriage loses force when it focuses only on the other rights—important, but not crucial—in question. By contrast, bi-national couples face a clear, terrible choice, and their stories should add urgency to a national debate that has focused on symbolism.
But don't expect the law to change any time soon, even if some states make gay marriage legal. Rep. Jerrold Nadler (D-N.Y.) has introduced a Permanent Partners Immigration Act that would put gays and straights on equal footing. The bill has 120 sponsors in the House and 11 in the Senate, but it hasn't moved since being introduced in 2000.
"I'm not terribly optimistic in the immediate future," says Nadler, who calls the status quo "gratuitously cruel." "We've been begging the chairman [of the immigration subcommittee of the House Judiciary Committee] for three years, and so far he hasn't scheduled a hearing or a markup or a vote."
The subcommittee chairman is Lamar Smith (R-Texas), who didn't respond to a request for comment on the bill. But Smith's views on homosexuality aren't a secret. He recently wrote in an online column (archived at lamarsmith.house.gov) that "same-sex marriage, and the lifestyle that accompanies it, should not be endorsed because it is unhealthy and unnatural."
The backlash in Washington is in stark contrast to expanding rights for gays in Europe, Canada, and elsewhere. For gays and lesbians with foreign partners, America is becoming a less and less attractive place to live. There's no reliable estimate of how many Americans leave each year for "exile," says Adam Francouer of Immigration Equality, but "we expect that number to increase as the gap widens."