New York Law School

Art Leonard Observations

Posts Tagged ‘Sullivan & Cromwell’

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.

Nebraska Supreme Court Ends State’s Anti-LGBT Adoption/Foster Policies

Posted on: April 12th, 2017 by Art Leonard No Comments

The seven-member Nebraska Supreme Court has unanimously affirmed a decision by Lancaster County District Judge John A. Colborn that a formal published policy adopted by the state in 1995 banning adoptions or foster placements into any household with a “homosexual” in residence was unconstitutional, as was an informal policy adopted more recently by chief executive officers of the state’s Department of Health and Human Services under which “exceptions” could be made in particular cases by personal order of the department’s director.

Ruling on a case brought by the ACLU on behalf of some same-sex couples who sought to foster or adopt children but were either discouraged by Department staff members or deterred by the formal policy posted on the Department’s website, Stewart v. Heineman, 296 Neb. 262, the Supreme Court focused mainly on technical issues, as the state apparently conceded that there was no good reason to single out gay and lesbian adults for discriminatory treatment and sought to persuade the court that the case was “moot” and should be dismissed, preferably without awarding costs and fees to the plaintiffs. The trial judge awarded costs and fees totaling more than $175,000, an amount that will increase if fees are later awarded to the plaintiffs for successfully defending their victory in the state supreme court.

The lengthy opinion by Justice John F. Wright is devoted almost entirely to refuting ridiculous arguments mounted by the state to try to convince the court that it lacked jurisdiction to decide the case, rather than to repeating in any detail the evidence presented to the district court about the parenting abilities of lesbians and gay men and the wholesome, well-adjusted children they have raised when given the opportunity to do so.

The complaint the ACLU filed centered on Memo 1-95, an administrative memorandum written by the director of the Department of Social Services (which later became the Department of Health and Human Services) in 1995. The memo stated: “It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals.  This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”  The memo adopted a similar policy regarding “unmarried heterosexual couples.”  The memo “directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study,” wrote Justice Wright.  “The stated reason for the policy was this State’s intent to place children in the most ‘family-like setting’ when out-of-home care is necessary,” Wright continued.  The memo contemplated that a formal regulation incorporating its policy decisions would be adopted, but this did not happen.

In fact, there is no formal statutory or regulatory ban on gay people being foster or adoptive parents in Nebraska, as such. Thus, the entire focus of the lawsuit and the court opinions was on the “policy” expressed in Memo 1-95 and subsequent “practices” adopted by the director of the department.

The Memo was posted on the Department’s website as a formal policy statement, and was not removed from the website until after this lawsuit began and motions for summary judgment had been filed with Judge Colborn. The Memo was used in training new staff members, and was referred to specifically by staff members when they discouraged one of the couples from formally applying to get a foster child, which is a prerequisite in Nebraska to legal adoption.

Part of the state’s defense in this case was that although Memo 1-95 continued to appear on the website, it was no longer the actual policy of the Department, as recent chief executive officers had determined that lesbian and gay applicants otherwise qualified to serve as foster or adoptive parents should be allowed to do so. However, this informal policy was not well publicized throughout the department, formal instructions were not issued at the line staff level, and no mechanism for appealing denials based on an applicant’s sexual orientation was created.

Under this “practice,” which was referred to throughout the opinion as the Pristow Procedure, after Thomas Pristow, director of the Division beginning in March 2012, if gay applicants were approved at the line staff level, the approval had to go through four layers of sign-offs, including by Pristow himself. No other potentially controversial placements, such as those with unmarried heterosexual parents or with former prison inmates, had to go through so many layers of approval, and only placements with “homosexuals” had to be personally approved by the director.

An earlier form of this policy “exception” was first adopted by Todd Reckling when he was director in June 2010, expressed in a letter to two gay men, Todd Vesely and Joel Busch, who had begun the process of qualifying to be foster and adoptive parents in 2008, completing the training program. Reckling wrote them that the division’s policy was to bar licensing unrelated adults living together, referring to Memo 1-95, but that the division’s policy “allows for an exception” under which one member of an unmarried couple might be licensed, but Reckling’s letter “gave no indication that such an exception would be made in their case” because, as Reckling explained, “second parent adoptions” were not permitted in Nebraska involving unmarried couples, and Todd and Joel could not marry because of Nebraska’s anti-gay marriage constitutional amendment.   Neither would their marriage be recognized if contracted out of state.

One of the state’s incredible arguments was that the plaintiffs did not have standing to bring the lawsuit because none of the couples had formally applied and been turned down. This was a nonsensical argument, since it was clear that any gay couple applying had to be rejected under the formal policy posted on the website and taught to staff members.  In reviewing the deposition testimony of the various directors of the division and other staff members, as well as their internal written communications, the court uncovered the entire history of developments within the department as this issue unfolded.  When pressed about why Memo 1-95 remained for so long on the website despite insistence by some of the witnesses that it was no longer the “practice” of the division, witnesses intimated that they wanted to prevent the possibility that a formal withdrawal of the memo would provoke the state legislature to pass an explicit ban on “homosexuals” serving as foster or adoptive parents, as had happened in some other states when the issue aroused public attention.

The defense witnesses struggled to define the difference between a “policy” and a “practice,” and to argue that because the complaint filed in this case only explicitly attacked 1-95 as a “policy,” the court should not consider whether the “practice” actually followed was constitutional. Of course, since the “practice” was never formally published, it turns out that the plaintiffs did not learn of it until after filing their complaint and conducting discovery.  The court turned aside formalistic objections to extending the lawsuit to consider the “practice,” and agreed with Judge Colborn that the “practice” as variously described in depositions and internal division communications was itself discriminatory.

The defense witnesses could advance no good reason why approval of gay people to be foster or adoptive parents should require five layers of approval culminating in personal approval by the CEO, a degree of internal scrutiny that was not demanded of any other class of applicants.

The court also rejected the defendants’ argument that the case was not “ripe” for decision because nobody had been turned down under the “practice”, now that the Memo has been removed from the website. Interestingly, however, the opinion does not mention any evidence that any gay foster or adoptive parents have actually been approved.  The defendants argued that none of the plaintiffs have yet incurred the injury of formally being denied, so it was premature for the court to rule on the merits.  But the court noted plentiful U.S. Supreme Court precedents adopting the view that a denial of equal treatment was itself an injury, even if it was in the form of an official policy that had deterred individuals from applying and thus had not resulted in any formal denials.

Approving the district court’s decision to issue an injunction against the “policy” and the “practice,” Justice Wright quoted from U.S. Supreme Court opinions, that the Court had “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”

As to the “ripeness” issue in the context of a “reverse-discrimination” attack on a governmental affirmative action contracting policy, the Supreme Court has said “that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will ‘sometime in the relatively near future’ bid on a contracted governed by such race-based financial incentives.”

The court also rejected the state’s contention that the case was “moot” because Memo 1-95 had been removed from the website. The court noted that the Memo had not been formally withdrawn, since it was not included on a website list of withdrawn memoranda, presumably so as not to call the legislature’s attention to its withdrawal.

“If a discriminatory policy is openly declared,” wrote Wright, “then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it ‘replaced’ Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and practice when this action was filed.  A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility.”

Furthermore, the court said that a party cannot “moot” a case “simply by ending its unlawful conduct once sued,” because if such “voluntary cessation” rendered the case “moot”, causing its dismissal, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

In the final section of his opinion, Justice Wright’s discussion intimated what this appeal is really all about. The state is not actually contesting Judge Colborn’s conclusion that the policy or practice is unconstitutional.  Rather, hoping to get the case dismissed as moot, the state wants to be in a position to argue that it should not have to pay court costs and attorney’s fees to the plaintiffs!  They argued that the trial court abused its discretion in awarding costs and fees, and should have declared the case moot and dismissed it when the state removed 1-95 from its website.  The court wasn’t falling for this sophistry, however.

The April 7 opinion is a total rejection of all the arguments the state raised on appeal, and a total endorsement of Judge Colborn’s summary judgment order of August 5, 2015, which ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applications under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The district court issued an order on December 15, 2015, awarding $28,849.25 in costs and $145,111.30 in attorney fees.

Lead attorneys for the plaintiffs are Amy Miller of the ACLU of Nebraska, Leslie Cooper of the national ACLU’s LGBT Rights Project, and cooperating attorneys Garrard R. Beeney and W. Rudolph Kleysteuber of Sullivan & Cromwell LLP. Amicus briefs in support of plaintiffs were filed by Nebraska Appleseed Center for Law in the Public Interest and the Child Welfare League of America.