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Two Lawsuits Challenge State Department’s Refusal to Recognize Same-Sex Marriages

Posted on: January 25th, 2018 by Art Leonard No Comments

 

Immigration Equality and cooperating attorneys from Sullivan & Cromwell LLP have filed two lawsuits against the U.S. State Department, challenging the Department’s refusal to recognize the birthright citizenship of two youngsters who are children of dual-nation married same-sex couples. The complicated cases turn on interpretation of a federal statute, Section 301(g) of the Immigration and Nationality Act (referred to as the INA), which establishes the citizenship status of persons born abroad to married U.S. citizens.  Blixt v. U.S. Department of State, Case 1:18-cv-00124 (D.D.C., filed Jan. 22, 2018); Dvash-Banks v. U.S. Department of State, Case 2:18-cv-00523 (C.D. Cal., filed Jan. 22, 2018).

The Constitution provides in the 14th Amendment that every person born in the United States is a citizen of the U.S.A. and of the state in which they were born. In the INA, Congress addressed the question whether people born overseas would also be treated as citizens if their parents are U.S. citizens.  The statute provides that a person born abroad will be treated as a U.S. citizen at birth if at least one of the person’s married parents is a U.S. citizen, and  as long as the U.S. citizen parent had been “physically present” in the U.S. for at least 5 years after their 14th birthday.

One of the lawsuits, filed in a U.S. District Court in the Central District of California (whose main courthouse is in Los Angeles), concerns Andrew Mason Dvash-Banks and Elad Dvash-Banks, a married couple, and their twin children, Ethan and Aiden. Andrew is a U.S. citizen, born in California in 1981, who lived continuously in the U.S. until 2005, when he moved to Israel and subsequently enrolled in a graduate program at Tel Aviv University.  There he met Elad Dvash in 2008.  Elad was born in Israel in 1985 and had lived there his entire life before meeting Andrew.  The two men went to Toronto, Canada, and were married there in a civil ceremony on August 19, 2010.

An act of the Canadian parliament, responding to rulings by various Canadian courts, established same-sex marriage in that country several years earlier. After marrying, Andrew and Elad moved to California, where they decided to raise a family. Because the federal Defense of Marriage Act precluded any recognition of their marriage by the U.S. government, Elad could not obtain permanent residence in the U.S. as Andrew’s legally recognized spouse, so they decided to move back to Toronto, where they could live together as a legally recognized married couple and start their family.

They decided to have twins using one surrogate who carried two embryos through to delivery of their sons. Each of the men is the biological father of one of the twins, who were born in Ontario in September, 2016.  Their Canadian birth certificates list both men as the fathers of each of the children, Ethan and Aidan.  The U.S. Defense of Marriage Act was declared unconstitutional by the Supreme Court in 2013, so at the time the twins were born there was no legal impediment to their Canadian marriage being recognized by the U.S. government in the same way any other legally valid marriage between a U.S. citizen and a non-citizen conducted abroad would normally be recognized.

After the children were born, their parents took them to the U.S. Consulate in Toronto to apply for their “Consular Reports of Birth Abroad” and to obtain U.S. passports for them. Because Andrew is a U.S. citizen and the children were born in 2016 within his legal marriage to Elad, he contends, both boys are entitled under Section 301(g) to be treated as U.S. citizens at birth.  But the officials with whom they dealt in Toronto didn’t see things that way.  They insisted that only Aiden, who was conceived using Andrew’s sperm, would be considered a U.S. citizen.  Ethan, who was conceived using Elad’s sperm, would not, because as far as the State Department was concerned, he had no genetic tie to a U.S. citizen, which the State Department decided was necessary for him to be treated as a U.S. citizen, relying on a different section of the law dealing with children born outside the United States out of wedlock.

In effect, the State Department was treating the marriage of Andrew and Elad as having no legal significance in determining Ethan’s citizenship.

This appears, on its face, inconsistent with the Supreme Court’s decisions in Obergefell v. Hodges (2015) and Pavan v. Smith (2017), which make clear that same-sex marriages are to be treated the same as different-sex marriages for all purposes of U.S. law. It also seems inconsistent with U.S. v. Windsor, which ruled that the U.S. government is required to recognize lawfully contracted same-sex marriages.

The other lawsuit, filed in Washington, D.C., presents a variation on the same story, involving Allison Dawn Blixt, who was born and raised in the United States, and her Italian wife, Stefania Zaccari, and their two sons, Lucas and Massi.

Alison lived in the U.S. continuously from her birth until 2008. She is a lawyer who began practicing at a law firm in New York beginning in 2005.  Stefania, born in Italy, met Allison in 2006 when Stefania was visiting New York on vacation.  After Stefania returned home, the women’s relationship continued at a distance.  Wanting to live together as a married couple, they moved to London, where Allison worked in the London office of her law firm and Stefania could freely relocate from Italy because of the freedom of movement within the European Union.  The women entered a civil partnership in England in 2009.  After the U.K. legislated for marriage equality, they took the necessary steps to convert their civil partnership into a legal marriage in 2015, retroactive to 2009 as allowed under British law.

Meanwhile, they decided to have children. Stefania gave birth to their first son, Lucas, conceived with sperm from an anonymous donor, in January 2015, a few weeks after they had converted their civil partnership into a marriage, and both women were listed on the birth certificate as parents.  They had another child in 2017, Massi, with Allison as the birth mother using sperm from the same anonymous donor, so that the boys would be biological half-brothers.  Massi’s birth certificate lists both women as his parents.  Both sons were born when their mothers were legally married, and at a time when under U.S. law their British marriage would be entitled to recognition.

After each child was born, they went to the U.S. Embassy in London to apply for a Consular Report of Birth Abroad and a U.S. passport for their sons. In 2015 they were told they couldn’t apply for Lucas, the first-born, because he was not biologically related to Allison, the U.S. citizen of the couple.

They returned to the Embassy after Massi was born in 2017, seeking to apply on behalf of both boys. Massi’s application was granted based on Allison’s U.S. citizenship, but Lucas’s application was denied.  In a letter communicating the denial, the State Department said: “It has been determined that there is not a biological relationship between the U.S. citizen mother and child, through either a genetic parental relationship or a gestational relationship, as required under the provisions of Section 309(c) of the Immigration and Nationality Act.”  Section 309(c) is, however, irrelevant, because it deals with children born “out of wedlock,” that is, to unmarried parents.  But Allison and Stefania are married, and they have a constitutional right to recognition of their marriage by the U.S. government.

In essence, the State Department is flouting the Supreme Court’s decisions. Pavan v. Smith was a dispute about Arkansas’s refusal to issue birth certificates showing both mothers of children born to married lesbian couples who conceived their children using donated sperm.  The Court said that Arkansas had to apply the same rule it used when different-sex married couples had children through donor insemination.  Although the father in such a case is not biologically related to the child, nonetheless he is entitled to be listed on the birth certificate and treated as the child’s legal father.  The Supreme Court, quoting from its early decision in Obergefell, said that married same-sex couples are entitled to the same “constellation” of rights as married different-sex couples.  And, of course, in U.S. v. Windsor, the Court made clear that legally married same-sex couples are entitled to have their marriages recognized on the same basis as the marriages of different-sex couples by the U.S. government.

That includes, these two new lawsuits argue, having their marriages recognized under Section 301(g), and thus conferring on their children U.S. citizenship, regardless which of the parents is their biological father or mother.

This is not just a new Trump Administration move. The Dvash-Banks family encountered their problem with the State Department in 2016, during the last year of the Obama Administration, and the Blixt family’s attempt to get a passport for Lucas was rebuffed in 2015.  What these cases will require is for the courts to be faithful to the broad rulings in Obergefell, Pavan and Windsor, and to treat these boys as U.S. citizens since they were born to married couples, each of which included one spouse who is a U.S. citizen and who clearly fulfills the residency requirements established in Section 301(g).  Treating them as children born “out of wedlock” is a failure of their rights to equal protection and due process of law under the 5th Amendment, argues the complaint.

Both complaints seek a declaratory judgment stating that the State Department’s application of its policies in these cases is unconstitutional and that each of the boys in question is a U.S. citizen. The complaints seek injunctions ordering the State Department to cease discriminating against married same-sex couples by classifying their children as being “born out of wedlock.” Of course, if the courts grant the requested relief, the plaintiffs are also seeking an award of attorneys’ fees and reasonable litigation costs.

N.Y. Appellate Division Finds Wedding Venue Unlawfully Excluded Same-Sex Couple

Posted on: January 15th, 2016 by Art Leonard No Comments

A unanimous five-judge bench of the New York Appellate Division, 3rd Department, an intermediate appellate court that hears appeals from state agency rulings in Albany, upheld a decision by the State Division of Human Rights (SDHR) that Liberty Ridge Farm LLC, an upstate business corporation that rents facilities for wedding ceremonies and other life-cycle events, violated the state’s Human Rights Law (HLR) in 2012 when the business turned away a lesbian couple looking for a place to hold their wedding ceremony and reception.  The court’s January 14 opinion was written by Justice Karen K. Peters.  Gifford v. McCarthy, 2016 N.Y. App. Div. LEXIS 238, 2016 WL 155543.

In June 2011 New York enacted its Marriage Equality Law, which went into effect the next month, providing that same-sex couples could marry and that their marriages would be treated the same under all provisions of New York law as different-sex marriages.  In October of 2011, Melisa McCarthy and Jennifer McCarthy became engaged, intending to marry during 2012.  In the fall of 2012, Melisa phoned Cynthia Gifford, co-owner of Liberty Ridge Farm, to ask about holding the wedding there.

Ms. Gifford and her husband Robert co-own the farm in Rensselaer County.  It is a working farm, but parts of the premises are regularly rented to the public for use as a wedding venue.  According to Justice Peters’ opinion, “When providing a venue site, Liberty Ridge offers several wedding-related services, including transportation of guests within the premises, a light beverage station, decoration and set-up services, flower arrangements and event coordination,” and Ms. Gifford serves as the “event coordinator.”  Liberty Ridge also contracts with a caterer to provide food and beverages for wedding receptions and “employs catering, kitchen and wait staff for that purpose.”

When Gifford figured out from Melisa’s use of a female pronoun to refer to her fiancé that she was engaged to a woman, she immediately said that there was a “problem” because the farm did “not hold same-sex marriages.”  When Melisa asked why not, Gifford responded that “it’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.”  The McCarthys followed up by filing a discrimination complaint with the State Division of Human Rights against the Giffords and their corporation, and found a different venue for their wedding.

The HRL provides that places of public accommodation may not discriminate in their provision of services because of the sexual orientation of those seeking the services.   The Giffords responded to the charge of sexual orientation discrimination that they did not believe their operation was a “public accommodation” subject to the law and that they were not discriminating based on sexual orientation, but rather exercising their 1st Amendment rights of freedom of speech, association and religious exercise. They did not inquire into the sexual orientation of potential customers, they insisted.

A public hearing before an Administrative Law Judge (ALJ) led to a decision that Liberty Ridge Farm LLC was a place of public accommodation and that the denial of the facility to a same-sex couple for use as a wedding venue violated the statute.  Constitutional questions were necessarily reserved to the subsequent court proceeding.  The ALJ recommended that each of the McCarthys receive $1,500 to compensate for the emotional distress they suffered as a result of being discriminated against, and that the Giffords have to pay a fine to the agency of $10,000.  The ALJ also recommended that the petitioners be directed to “cease and desist” from violating the statute, and establish anti-discrimination training and procedures at their business. The Commissioner of Human Rights accepted the ALJ’s findings and recommendations with minor changes, and the Giffords filed their appeal to the Appellate Division, raising both statutory and constitutional challenges to the decision.

This case presented questions of first impression for New York, but the issues are not new for anyone who has been paying attention to similar cases that have arisen in other states.  To date, appellate rulings in New Mexico, Oregon, Colorado and Washington state have all rejected the idea that businesses can deny their services or goods to same-sex couples in connection with commitment or wedding ceremonies when state or local laws forbid sexual orientation discrimination by businesses.  Justice Peters cited those cases – most prominently the Elane Photography case from New Mexico, which was denied review by the U.S. Supreme Court on the constitutional questions – in reaching a ruling consistent with the decisions from other states.

Turning first to the statutory claims, the court easily dispensed with the Giffords’ argument that their farm is not a “public accommodation” under the statute.  They are incorporated as a for-profit business and they advertise the availability of their facilities to members of the public, so their argument that they are just a privately-owned farm that rents out its barn occasionally for a wedding ceremony was not going to cut it under the broad interpretation of the statute that the state courts have followed.  “The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law,” wrote Justice Peters; “the critical factor is that the facilities are made available to the public at large.”

As to the argument that they were not discriminating based on sexual orientation, the court was equally dismissive.  “As the record clearly reflects,” wrote Justice Peters, “Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancé as a ‘she.’  Despite Cynthia Gifford’s clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that ‘we do not hold same-sex marriages here at the farm,’ they did not deny services to the McCarthys ‘because of’ their sexual orientation.  Instead, petitioners claim that the decision to do so was based solely upon the Giffords’ religious beliefs regarding same-sex marriage.  Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected.”  Justice Peters cited the U.S. Supreme Court’s decision involving the refusal of University of California Hastings Law School to recognize a chapter of the Christian Legal Society, which excluded gay students from membership, in which Justice Ruth Bader Ginsburg expressly rejected this kind of status/conduct distinction, as well as the famous Bob Jones University case, which upheld a denial of tax exempt status to the school because of its policy forbidding interracial dating by students.

The court found that the “act of entering into a same-sex marriage is ‘conduct that is inextricably tied to sexual orientation,’” so there was no basis to distinguish this from on outright denial of services because of a potential customer’s sexual orientation.  The Giffords had tried to bolster this defense by claiming that they would have been happy to host a wedding reception for the McCarthys, so long as the actual wedding ceremony was not held on their premises, but the court rejected this defense, pointing out that the statute “does not permit businesses to offer a ‘limited menu’ of goods or services to customers on the basis of a status that fits within one of the protected categories.”

The court then turned to the Giffords’ constitutional claims, and here rested its analysis on the proposition that neither the federal First Amendment nor the analogous provision in New York State’s constitution allow people to violate general anti-discrimination laws based on their religious beliefs.  “While we recognize that the burden placed on the Giffords’ right to freely exercise their religion is not inconsequential,” wrote Peters, “it cannot be overlooked that SDHR’s determination does not require them to participate in the marriage of a same-sex couple.  Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so.  To be weighed against the Giffords’ interests in adhering to the tenets of their faith is New York’s long-recognized, substantial interest in eradicating discrimination.   Balancing these competing interests, we conclude that petitioners failed to show that SDHR’s determination constituted an unreasonable interference with the Giffords’ religious freedom.”

The court similarly rejected the Giffords’ other First Amendment claims.  “Here,” wrote Peters, “SDHR’s determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all.  The Giffords remain free to express whatever views they may have on the issue of same-sex marriage.  The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples.”  The court rejected the Giffords’ assertion that holding same-sex marriages in their barn would broadcast to passersby their “support for same-sex marriage.”  The court doubted that anyone would think that a business providing a service in compliance with a law that requires them not to discriminate was making any kind of statement of the owners’ personal beliefs by providing the service.

The court also rejected the “expressive association” claim, finding that “there is nothing in this record to indicate that petitioners’ wedding business was ‘organized for specific expressive purposes’ rather than for the purpose of making a profit through service contracts with customers.”

The court also concluded that the remedy imposed by SDHR was “reasonably related to the wrongdoing, supported by evidence and comparable to the relief awarded in similar cases,” so there was no reason to change it.  The standard for judicial review of the agency’s remedy is “abuse of discretion,” and the court found that SDHR did not abuse its discretion by imposing the $3,000 damage award and the $10,000 fine.

The Giffords and their business are represented by Alliance Defending Freedom, an anti-gay religiously oriented litigation group that actively seeks to vindicate the proposition that free exercise of religion, at least by Christians, should always trump other legal duties.  They will undoubtedly try to get the state’s highest court, the Court of Appeals, to review this ruling, but that court does not have to take the case and is not likely to do so, given the unanimity of the five-member Appellate Division bench and the consistency with appellate rulings from other states involving wedding photographers, florists and bakeries.  Review by the U.S. Supreme Court is also unlikely, since it turned down the wedding photographer case from New Mexico and there is no division among the lower courts that have been ruling on these types of cases.

The McCarthys are represented by Mariko Hirose of the NY Civil Liberties Union and Rose A. Saxe of the ACLU.  SDHR’s appellate attorney Michael Swirsky argued on behalf of the agency in defense of its ruling, and a variety of civil rights and gay rights organizations weighed in as friends of the court, including the NAACP Legal Defense Fund, Lambda Legal and the National Center for Lesbian Rights, as well as New York Attorney General Eric Schneiderman.