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.