On June 26, 2015, the lesbian and gay community saw the making of history. On that summer day Justice Kennedy, the noted swing vote on the U.S. Supreme Court, who wrote the majority opinions in cases like Romer v. Evans (1998) and Lawrence v. Texas (2003), announced for a majority in Obergefell v. Hodges that the constitution could not deny a lesbian or gay couple the fundamental right to marry.
Lawyers and activists who had fought against mean spirited laws like Colorado’s Amendment 2, or Texas’ gay targeted sodomy law, could celebrate as Kennedy affirmed that the right to marry first pronounced as a fundamental right for interracial couples in Loving v. Virginia (1967) despite existing racist state law, extended as well to the same sexed couple applying for a marriage license.
But that day something else was happening further South from Washington D.C. and the celebrations outside the nation’s courthouse that affected my own celebratory mood over marriage equality.
As the Court was convened to read the Obergefell opinions, our President was delivering a eulogy in South Carolina for a minister who had been among the nine black people senselessly murdered by a white supremacist inside their church.
As someone whose legal career began with writing about and speaking against AIDS related discrimination, especially when race, culture and class issues intersected with fears about homosexuality and a disease without a cure, I was sensitive to this ironic pairing of national events. I so wanted Kennedy’s appeal of a right to human dignity to feel meaningful for all sex and gender minorities everywhere. But I was also sad that as we were celebrating sexual freedom, racism still prevailed, and the memorial service was a sober reminder that there is much work to do for social justice in this country.
One phrase in Kennedy’s opinion provided us with a breathtaking view of the trust we should place in our constitutional sense of freedom and equality. “The nature of injustice is that we may not see it in our time,” Kennedy wrote as he explained why it was so unfair to deny gay citizens the right to love, marry, and form families. They were words, however, that can be read to transcend the agenda of gay marriage equality and should affirm our sense of anyone’s right to human dignity here and in other parts of the world. A promise of justice and freedom that needs the full embrace by the members of this profession who have not only the privilege to practice the law but also to promote access to justice and reform where there is injustice.
Right now public policy is being shaped at the state and local level amidst a culture of fear over terrorism and the refugee crises connected to the bombings in Paris and the civil war in Syria. Fear mongering produces bad laws for civil and human rights and threatens the values of an open society. The culture of fear is especially threatening to social minorities who can be easily scapegoated.
Some forms of injustice are invisible because we do not know or because we don’t want to know. That should not be the case for lawyers whose professional responsibilities include assuring that there is access to the halls of justice for all, even those who cannot pay.
Among those whose situations need to be made visible are undocu- mented residents in this country who are gay, and detainees in immigration jails needing help from good lawyers who can represent them in immigration court.
We know that our nation survives on the labor of millions of who are undocumented residents. Some get caught without papers and end up in detention facilities. Some of them are gay. Some end up in a detention center because they got here alone and don’t have the money or connections to get legal services. What they do know is that they are afraid and they want to feel safe. They are detainees who are the minority among the minorities, because their plea for asylum and compassion involves a story about how they are running away from violence and persecution for simply being gay or transgendered.
The undocumented migrate to the U.S.A. for a number of reasons, including the desire to live one’s life as a gay person freely as promised by the majority in Obergefell, not a life filled with examples of public humiliation or acts of violence that go unpunished because where they live it is still a crime to enjoy gay sex. Ask anyone who grew up in the pre-Stonewall era to recall life before the decriminalization of homosexuality. Survival meant being in the closet, hiding one’s life partner, risking the loss of job, homes or family to being outed. A late night out near a gay bar could invite beatings and harassment. The typical stereotype of a gay or lesbian was pedophile and a pervert who threatened children and families. That kind of life is still the norm for LGBTs many parts of the world.
Seeking asylum in this country is not a crime. Yet today every asylum seeker who is detained is often treated as if they were a criminal since the majority of immigration facilities are operated by the CCA or GeoGroup2, two major contractors for the DHS immigration operations. In 2014, I saw first hand work at a huge Texas detention facility near San Antonio. Twelve of us came on a tour to learn more about the immigration system. Officials let us meet and talk to several dozen detainees. Among them were five openly gay men from Central America.
It must take a lot of courage for an openly gay migrant to make a journey in search of basic human dignity and safety. It must be a scary and treacherous journey filled with the hope of safety and yes, even the freedom to love and marry. Imagine being from a country that has been affected by civil wars, social and economic revolution connected to the introduction of free trade agreements, or from the power struggles between drug cartels and government. Imagine never knowing when a relative is going to be kidnapped for money, or blackmailed and threatened if they don’t participate in organized crime networks in their communities. Imagine living where there are no good jobs, where the police can be bribed easily not to see crimes and where being gay means being harassed regularly or being beat up in public by the military or being kidnapped and then gang raped. It isn’t so hard then to imagine that every wave of migrants to the U.S. includes an LGBT person who is scared and wants to live in a place where queer doesn’t automatically signify criminal. They too may appear like the typical migrant fleeing their country for lack of jobs or civil wars or corruption; but they might also have the same goals and desires for love and family as the plaintiffs in all of the U.S.’s major marriage equality cases.
Getting asylum in this country is not easy. An applicant has to prove “credible fear” that they are the victim of persecution in their own country based on a narrow set of categories (e.g., religion, ideology) or “membership in a particular social group.” The detainees we met described being financially exploited by human traffickers, being charged outrageous amounts for a journey that could easily end up in violence, death or capture by the border patrol. All of them spoke of police corruption, extreme poverty and threats to them or their relatives from cartels for not doing jobs for the gang. Being openly gay meant never feeling safe. Ariel, from El Salvador told us, “my own nephew hired someone to have me killed for being gay.” One time he was harassed, beat up and gang raped and the police refused to help. Arnaldo, from Honduras said that soldiers regularly beat up gay people and a very common fear among the gay migrants was that of being kidnapped and gang raped.
But the gay detainees had more problems once they were housed in a detention center. Many complained of shocking conditions and treatment by the border patrol and in the detention centers they were systematically marginalized, segregated or otherwise the subject of homophobic taunting by detention staff.
Lawyers in search of pro bono opportunities might consider volunteering for the hard work of representing detainees in immigration court or in the reform work around challenging the way in which the government is dealing with either refugee crises from abroad or here at home near our borders. There is something wrong when the feel of a civil detention center looks like a prison, and when for-profit companies can generate huge profits for their shareholders as they treat civil detainees like presumptive criminals and dole out attitudes based on the socially constructed view of a new criminal identity-the undocumented migrant.
This essay is based on a forthcoming article in the University of Missouri Kansas Law Review (2016) entitled “Queer, Undocumented and Sitting in an Immigration Detention Cen- ter: A Post-Obergefell v. Hodges Reflection.”
BY ELVIA R ARRIOLA
Esq., Austin, TX