Gay Marriage

Lawsuit Challenges State Department Policy Discriminating Against Foreign-Born Children of Same-Sex Married Couples

The policy denies citizenship to some children of married US-citizen same-sex couples if the child is born abroad, in situations where the child of opposite-sex couples are automatically considered citizens. It is a clear case of unconstitutional sex discrimination.

|The Volokh Conspiracy |

A  gay couple recently filed a lawsuit challenging the legality of a State Department policy that denies automatic citizenship to children of married US-citizen same-sex parents born abroad (in this case through a surrogacy arrangement):

Derek Mize and Jonathan Gregg, who married in New York in 2015, had their daughter Simone Mize-Gregg via surrogacy in England in 2018, their lawyer said in a statement. Both fathers are listed on the birth certificate.

When they applied for Simone's US citizenship, the US consulate in London rejected their application… "The Immigration and Nationality Act (INA) states that children of married U.S. citizens born abroad are U.S. citizens from birth so long as one of their parents has lived in the U.S. at some point, but the State Department routinely denies that right to same-sex couples and their children," the statement says.

"The State Department's policy is not only cruel, it is unconstitutional. The government refuses to recognize Jonathan and Derek's marriage and all of Simone's rights as a U.S. citizen," Aaron C. Morris, one of the couple's attorneys and executive director of Immigration Equality, said…..

The lawsuit says that, "Because she is the child of two men, the U.S. Department of State evaluated Simone's citizenship under the standards only applicable to children 'born out of wedlock' and refused to recognize Simone's U.S. citizenship."

The full text of the complaint filed by Mize and Gregg's counsel is available here. It argues that the State Department policy violates both the Immigration and Nationality Act (which does not, in its text, distinguish between same-sex and opposite-sex marriages), and the Constitution.

Meanwhile, the State Department has adopted the absurd position that the baby is only eligible for a tourist visa, and therefore can only stay in the US for 90 days at a time. If the child is forced to leave the country, she will be separated from at least one of her parents, as he cannot leave the US due to the need for ongoing treatment for a brain tumor.

Simone might have qualified for US citizenship even under the rules for children "born out of wedlock." But in such cases, the law mandates that the biological US-citizen parent must have lived in the US for five consecutive years, and Jonathan Gregg was one year short.

The plaintiffs here are absolutely right that the State Department's policy is both cruel and unconstitutional. In  Sessions v. Morales-Santana (2017), the Supreme Court struck down a law that made it easier for foreign-born children of unwed US-citizen mothers to acquire citizenship than foreign-born children of unwed citizen fathers. The Court  emphasized that "Laws granting or denying benefits 'on the basis of the sex of the qualifying parent…'  differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee." It also concluded that the law in question could not possibly pass heightened scrutiny, because the sex discrimination it imposes does not substantially advance any important government interest.

The same reasoning applies to the State Department policy on children of same-sex parents. Here too, the government discriminates based on the sex of the parents in question. If both are the same sex, they are treated differently than if they are not. And, here too, there is no defensible government interest that is advanced by the sex discrimination in quest.

The State Department automatically recognizes the citizenship status of foreign-born children of US opposite-sex married couples who use a surrogate or a sperm donor. It does not require both parents to have a biological connection to the child, and treat it as "born out of wedlock" if one parent does not. There is no reason, other than rank bigotry, to deny the same treatment to children of same-sex married couples. The government cannot even claim that the policy is justified by a supposed need to to privilege biological parents over non-biological ones, since the rule does not similarly disfavor non-biological parents in opposite-sex marriages.

Admittedly, the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down laws banning same-sex marriage, was not completely clear about several aspects of the scope of its holding, including whether it meant that all legal rights associated with marriage must be available to same-sex couples on the same basis as opposite-sex ones. I criticized the mushy nature of Justice Anthony Kennedy's reasoning at the time the ruling came down.

I continue to believe that the Court would have done better to simply rule that laws banning same-sex marriage are unconstitutional because they discriminate on the basis of sex, as Northwestern law Professor Andrew Koppelman and I urged in an amicus brief we filed in Obergefell. Among other things, that approach would have made clear that all government discrimination against same-sex couples is presumptively unconstitutional.

But the Supreme Court has since clarified—in a 6-3 ruling in Pavan v. Smith (2017)—that the Obergefell entitles same-sex married couples to the same "rights, benefits, and responsibilities" of marriage as opposite-sex ones. That surely includes the right to transmit citizenship to their foreign-born children. Even Obergefell itself indicates that one of the main reasons for striking down laws banning same-sex marriage is to ensure that children of same-sex parents have access to "the recognition, stability, and predictability marriage offers." There are few more denials of "recognition, stability, and predictability" than a rule that essentially prevents some children from living in the same country as their parents (or, in this case, from doing so for more than 90 days at a time).

In a similar case decided in February, a federal district court ruled that the State Department policy violates the Immigration and Nationality Act, and therefore chose not to rule on the constitutional issues. That ruling is now under appeal. If the courts ultimately conclude that the State Department policy is permissible under immigration laws enacted by Congress, the combination of Pavan, Obergefell, and Morales-Santana should doom it on constitutional grounds.

If judges conclude that the relevant parts of the INA are ambiguous, lower courts must interpret the statute to treat same-sex and opposite-sex couples equally, in order to avoid constitutional problems. In NFIB v. Sebelius (2012) and other cases, the Supreme Court made clear that it will adopt almost any reasonably plausible interpretation of a federal statute that avoids the risk of making it unconstitutional. I am no great fan of this  "constitutional avoidance" canon. But it is binding Supreme Court precedent, and lower courts have to follow it.

Elsewhere, I have argued that the right to live and work in the US (and other countries) should not be so heavily dependent on a "hereditary aristocracy" of citizenship determined largely by circumstances of birth. But the right way to address this injustice is to increase freedom of movement for non-citizens, not to make the current system of hereditary rights even more restrictive by adding a dose of sex discrimination into the mix. In any event, this broader moral issue does not change the legal analysis that applies to cases like this one.

 

 

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  1. How does the law treat the citizenship of a child of an opposite sex married couple where the citizen father’s sperm fertilizes a noncitizen egg that’s implanted in a different noncitizen woman to carry to term (I’m guessing that the egg and the surrogate were noncitizens because it seems like everything happens in England)? It might well be enough to confer automatic citizenship, but that seems like the relevant comparison, not pretending that there’s no difference between the facts of this birth and the facts of a typical birth to an opposite sex married couple.

    1. More simply put, how does the law handle the adopted children of US citizen parents?

      Because that is what is happening here.

      1. Depends on the exact details of the adoption.

        1. Being married to the mother usually confers parental status to the husband (regardless of whose sperm actually fertilized the egg). In that instance, the husband does not need an adoption proceeding to become legal father to the child. The assumption is that a married couple intends to raise any children they have as parents. Sometimes it does come up that wife is pregnant at the time of marriage (or afterwards) but not by husband; husband does not have to do anything other than be married to wife to grant legal parenthood to the offspring. (because, of course, we didn’t used to have a way to tell otherwise.)

          There’s a whole bunch of complicated fact possibilities to unravel. I think it’s fair to say that if citizen parent (in whichever relationship) intends to raise child, then child should automatically be a U.S. citizen, even if born overseas, and even if borne by a surrogate. Doesn’t matter if the parents are gay, straight, or single.

          1. Again, depends on the exact details.

            For example, take a British mother with 2 children. She marries american citizen father. The children are not automatically US citizens.

            1. “take a British mother with 2 children. She marries american citizen father. The children are not automatically US citizens.

              Unless some of those CIA goat-staring experiments were more successful than we’ve been led to believe, you aren’t adding anything here. If a British woman has three children, their automatic (or not) citizenship is determined at birth. You don’t get automatic citizenship because, at some unspecified future date, your momma’s gonna marry an American. But if your momma marries an American BEFORE you’re born, AND the American intends to raise you as his child, guess what? You’re an American. If your momma was carrying you as a surrogate for, say, two Canadians, you’re a Canadian. If your momma gives you up for adoption in UK, you’re British.

              1. That’s not actually true (and part of the problem in the above case).

                If the American Citizen in question didn’t meet the residency requirements (5 years in the US, 2 after age 14), then the children wouldn’t automatically get US citizenship.

                1. So you’ve discovered that the law falls should of what I think it should be? Gosh, I never noticed that before…

                  1. Another example of you presenting your opinion as fact, then suddenly when proved incorrect, you change the topic to something else.

                    1. “Another example of you presenting your opinion as fact”

                      To people who don’t read well, I guess that might be true. Keep working at it, so that you learn the difference between a statement of what things SHOULD be like, and a statement of how things are.

                      ” I think it’s fair to say that if citizen parent (in whichever relationship) intends to raise child, then child should automatically be a U.S. citizen, even if born overseas, and even if borne by a surrogate. Doesn’t matter if the parents are gay, straight, or single.”

                    2. If you’re going to accuse me of not “reading” well, you should check your writing.

                      For example..

                      “So you’ve discovered that the law falls should of what I think it should be?”

                      Which…is nonsensical.

                    3. “If you’re going to accuse me of not ‘reading’ well, you should check your writing.For example..
                      ‘So you’ve discovered that the law falls should of what I think it should be?’
                      Which…is nonsensical.”

                      Thank you for citing yet another case where your reading skills need development. That should be sufficient. We get the point that you don’t read well.

                    4. You think that sentence makes sense?

                      Read it again.

                    5. We’ve established that you struggle to differentiate “should” and “is”. No need to delve further into your inadequacies.

      2. Exactly. One cannot just take a newborn baby and enter the USA. Just like other residency visas, it usually takes some time to process and requires a ton of paperwork of which the adoption papers would be the key piece ensuring it was legal.

    2. Somin answered this one, already:

      The State Department automatically grants citizenship to foreign-born children of US opposite-sex married couples who use a surrogate or a sperm donor. It does not require both parents to have a biological connection to the child, and treat it as “born out of wedlock” if one parent does not.

      1. Indeed he did. Just not my day today.

      2. Unfortunately that is not totally true. There are specific requirements just like this case.

  2. Well, pretending is what the law now requires of us isn’t it? Now wax my balls and call me Ms, you homophobisexist.

    1. “child of two men”

      Yes, pretend.

    2. “Now wax my balls and call me Ms, you homophobisexist.”

      Always fascinating to observe that which complies with the Volokh Conspiracy’s asserted civility standards.

      “Slack-jxx” is out of bounds, according to the proprietor. “Wax my balls” is, however, fine. This is curious, unless one is open to the prospect that this blog’s Board of Censorship is guided not by the issue of civility but instead by something less high-minded . . . and, conveniently, unstated.

      Carry on, the “libertarianish.”

  3. From a practical perspective, you can relax, Prof. Somin. I expect the bigoted hands to be removed from the levers of government power in the United States soon enough.

    1. Your “practical perspective” is anything but. From a “practical perspective”, the longer this is drawn out the more harm is done, and waiting for some politician somewhere to fix your problem is never practical.

      And that’s before we even begin with your claims of prophecy.

    2. IIRC you made similar type comments four years ago and that didn’t work out to well for ya!

      1. You recall incorrectly. To which bigots’ hands being separated from the levers of power do you recall me referring to four years ago?

  4. Call it what you want, but a marriage it ain’t.

    1. Your command and assertion are in conflict.

  5. This is actually someone trickier than presented.

    So, there are two people who are married (A & B). One of them (B) has children with a 3rd party. (IE, out of wedlock). Child comes into the family.

    Technically, the government looks at this as a stepchild arrangement for A. The step parent can formally adopt the children (according to state department rules), then the child can be given citizenship.

    Additionally, in this situation, B has another issue, because while B has US citizenship, he hasn’t really resided in the US that much. Which makes it more difficult to pass on hereditary citizenship. (For various reasons, the US considers it undesirable to have a large group of ex-pat citizens who have never resided in the US, nor their parents…)

    Now, Ilya’s open borders arguments have been extensively discussed. The most notable problem is the lack of the capability of the US to fully support the hundreds of millions of new immigrants that would take advantage of such a policy.

    1. It really isn’t.

      Two families show up to get a passport for their kid, born abroad. Both families present a birth certificate showing the two American parents. In both families, only one parent actually has a biological connection to the kid. Neither family denies this. Neither family is required or expected, by US law, to file for a second-parent adoption.

      If the parents are straight, the kid gets their passport.
      If the parents are gay, the kid doesn’t get their passport.

      And to be clear, this particular couple that are suing aren’t the first that have been hit by the State Department’s new policy. They’re not even the first ones that have sued the State Department over it. They’re just the ones that sued this week.

      1. It’s actually more complicated than that. And the IVF other in vitro techniques are part of the issue.

        For example, there are cases where American citizens have had in vitro fertilization abroad, but then the US government is demanding that they show the biological material of one of the parents was actually used. The US government was demanding a BIOLOGICAL link to the parents.

        So, let’s a given situation with a donor egg and donor sperm being used, but the American citizen woman is married to an American citizen man, and the American woman brings the child to term. As recently as 2011, the US would reject the “automatic citizenship” for this child.

        Now, let’s use the same situation, but instead of the American citizen bringing the child to term, a surrigate is used. The government will reject automatic citizenship.

        1. I’ll add on here. This is all for a reason.

          You could imagine a situation where a surrogate is used, with donor sperm and a donor egg, all abroad, but the US citizen puts themselves down as the parent on the birth certificate. This essentially should be an adoption, and should go through adoption proceedings, rather than a fiction where the American citizen is the “birth” parent. Such a fiction lends itself to all types of potential abuse.

          1. Out-there hypotheticals are not going to save this policy’s clear intent.
            Plus, this policy is way overinclusive of the scenario you put forth. There are lots of ways to solve that problem that don’t screw same-sex couples.

            1. This isn’t “screwing same sax couples” any more than it screws opposite sex couples and the first case isn’t a hypothetical.

              In the above case, there would be no problem if the other partner’s sperm was used. Or if the first partner had actually been a US resident slightly longer. Or if they arrange the surrogacy in the US. Or if they adopt the child. An opposite sex couple in the exact same situation (IE, US mother, US father who didn’t meet the US residency requirements, in vitro fertilization, surrogate, donor egg) would have the same issue.

              1. “In the above case, there would be no problem if the other partner’s sperm was used.”

                So now you’re discriminating against people who produce non-viable sperm, for no reason.. This is not an improvement.

    2. Whats tricky is that libs claim theres no such thing as a man or woman and its all just a social construct. So how can you discriminate against something that by your own logic doesn’t exist?

  6. Ilya,
    You should clarify the biological relationship of one or both parents to the child further up in the article as well as the policy in regard to surrogacies for opposite-sex couples. It’s still not 100% clear to me from your post whether there is a biological relationship between one of the parents and the child. State could have a reasonable basis for believing that a non-biological surrogacy is distinction without a difference from adoption. I don’t think that’s what is going on here (surrogacy is being treated differently for same sex and opposite sex couples) but your article could be more clear.

    1. Ilya,
      Now having read the complaint, I see that Mr. Griggs is the biological father of their child. What I do not see is support for your statement “[t]he State Department automatically recognizes the citizenship status of foreign-born children of US opposite-sex married couples who use a surrogate or a sperm donor.” While I might have missed something, my understanding from the complaint is that the State Department is unlikely to catch such surrogacies because they are less likely to ask in the case of an opposite-sex couple (which biologically, makes sense). Based on this, my understanding of the claims is a statutory claim (the INA’s language doesn’t require blood-relationship) and a quasi-disparate impact equal protection/SDP claim.

      1. This.

        Elsewhere Somin also reminds us of the residency rule – the biological parent had to have lived in the US long enough, which this parent hadn’t.

        So the right comparison would be: if a person with insufficient time in the US had a child through surrogacy, do they gain automatic citizenship?

        Funnily enough, I know the answer, it’s been covered by Bill Handel, a lawyer who both runs a surrogacy clinic and has a radio show in LA. And that answer is No. As others have mentioned though, M-F couples are likely to get away with it because there’s no reason to ask.

        1. Bingo. Although there are other reasons that might come up, and have a reason to ask.

          For example, if two white Americans come through with a new baby from abroad, but the baby is black, then immigration may ask.

        2. If opposite-sex couples aren’t routinely asked, it would then follow that this is a case of disparate treatment between same-sex and opposite-sex couples inconsistent with Pavan.

          1. If parents are only routinely asked if there is evidence that the child could not be the child of the two listed parents, such as racial differences, then is that discrimination?

            Notice that several cases have been pointed out where M-F couples are questioned and denied, because the officials were suspicious of the circumstances.

            1. @toranth
              Exactly. Assuming I am reading the complaint correctly, absent evidence that this procedure was intended to subject same-sex to different scrutiny, it is probably not a disparate treatment issue. It wouldn’t be “discrimination” in the sense that the term requires intentional discrimination as opposed to disparate impact.

              1. If all parents were asked, under penalty of perjury, whether they are both biological parents, then 100% of same-sex parents and very few opposite-sex parents would be impacted. That would be a disparate impact because most opposite-sex parents would be biological parents. However, the policy would treat all non-biological parents – same-sex and opposite-sex – alike.

                Without the question, 100% of same-sex parents and a much smaller percentage of opposite-sex parents who were not both biological parents would be impacted. Unless the state can justify why they aren’t asking the question, that strikes me as a disparate treatment of same-sex couples compared to similarly situated opposite-sex couples.

                1. “If all parents were asked, under penalty of perjury, whether they are both biological parents, then 100% of same-sex parents and very few opposite-sex parents would be impacted.”

                  According to independent research by Maury Povich, more people would be affected than would expect to be.

                  “Josh, your are NOT the father.”

          2. The plaintiffs could and obviously should make this argument, especially if they are able to uncover intentional disparate treatment. But the counter argument is that’s State’s procedure of inquiring about when to inquire about biological parentage is overly reliant on whether the parents listed on the foreign. Birth certificate is biologically impossible (as opposed to legally impossible). This largely gets us back to a disparate treatment argument in that the inquiry procedure disproportionately catches same-sex parents using a surrogate.

        3. Assuming I’m a reading the complaint correctly, the complaint alleges that both parents as citizens complied with the residency rule.

  7. “I continue to believe that the Court would have done better to simply rule that laws banning same-sex marriage are unconstitutional because they discriminate on the basis of sex, ”

    So, your position here is, what? That if a constitutional amendment was a good idea, then if the states refuse to ratify it, the courts should take up the slack, and just “interpret” some other part of the Constitution to have the same effect?

    So much for Article V, I guess.

    1. Living Constitutionalism: Using freedom of speech over decades to get enough people not to change the law by vote, but to change the law by judicial decree.

      1. Sounds like Hell(er).

    2. So I’m clear are you suggesting that the EPC shouldn’t cover sex discrimination because the ERA wasn’t ratified? Because Reed v Reed was decided before the Senate even approved the ERA to send to the states.

      1. No, I don’t think sex discrimination is a violation of the EPC. I’m an originalist, and there’s no question at all that the 14th amendment wasn’t written and ratified in order to prohibit sex discrimination.

        In fact, if you look at Section 2 of the amendment, it explicitly embodies sex discrimination.

        I think what happened here is that there was a general societal movement in favor of equality of the sexes, which was fine, and the courts, which were decidedly NOT originalist at that point, decided that it would be good to just start reading a prohibition against sex discrimination into a Constitution that didn’t have any such thing in it.

        At the same time that societal movement was responsible for the ERA being sent to the states.

        But, the courts got ahead of that movement, started people thinking about the actual implications of sex discrimination actually being prohibited by the Constitution. And the implications were frightening enough to kill the ERA.

        But the courts didn’t care, and continued their program of reading the failed ERA into the Constitution, including those implications that had caused the ERA to be rejected by the states.

        And so, here we are, no ERA, and the courts enforcing the very interpretation of the amendment that its proponents vehemently rejected. In the end, refusing to ratify the ERA was futile, because the courts view themselves as a perpetual constitutional convention without the check of ratification, rather than simply a judiciary enforcing what other people chose to make law.

        And I’m very disappointed in Ilya embracing that vice. Though, sadly, not much surprised…

        1. I don’t think saying your an originalist is enough. I am too but think it covers sex discrimination. You seem to be using original intent, not original meaning. Because the clause has no language indicating it only applies to race (or color or national origin since I don’t know what you think it embodies). In fact it simply says “any person”. The text could not be understood to mean (in the sense that word is used in original meaning) that it is limited. That is purely the vestiges of original intent. If you are an original intent originalist that is fine but that has been widely discarded even by the originalist movement, I think properly.

          Carving out a specific instance where there is sex discrimination (voting) was embodied also isn’t sufficient given that we also have the 15th about voting for race. That just means the 14th amendment didn’t apply to voting. The 15th also shows that they were more than capable of putting in the limiting language regarding classifications it applies to. But they did not do that in the EPC.

          1. Yes, original intent, but also textualism: “Equal protection” referred to people not being made “outlaw”, deprived of the protection of the law. No way would treating people differently on the basis of sex have been regarded as a violation of equal protection, unless the unequal treatment consisted of something like allowing women to be robbed without legal consequence. Only opposite sexes being able to marry wasn’t seen as a form of discrimination, it was just what the word “marry” meant, we tend to forget that SSM wasn’t legal ANYWHERE until 2009. Not anywhere in the entire world. When the ERA was proposed, legalizing SSM was regarded as a reductio ad absurdum, not a speculative application.

            This isn’t like the application of the 14th amendment to overturning laws banning interracial marriage, where it was already legal in a lot of states, and the courts immediately interpreted it to mean that.

            Rather, we’re talking about the courts waiting over a century to “realize” that a long standing amendment “means” something that wasn’t even on the radar a few years earlier.

            I would further say that a serious effort to amend the Constitution to mean something it wasn’t already understood to mean, which gets rejected by the states, forecloses that understanding. We’re not talking about a change to the Constitution which merely wasn’t considered earlier. It was considered and formally rejected.

            If Article V is to have any meaning at all, that should settle things, not license the judiciary to get inventive.

            1. Your point about “outlaw” may be accurate but the regards the reach of the EPC not the classifications it protects. As you said if a law makes a woman outside the law it would apply. Similarly I’d assume you feel that only laws that put race outside the law, rather than just treated differently would similarly be ok. That is completely different argument.

              And I’m glad you recognized that what you are doing is original intent. But also realize that that is a minority view even among originalists.

              As a note, however, I don’t think sexual orientation discrimination falls under sex discrimination.

              As for a serious attempt to amend, recall that the amendment was meant to make sex a “suspect” class and subject to strict scrutiny. Reed v Reed was already decided, using rational basis, so there was no need for an amendment on that font. There is a difference between an amendment attempting to increase the scrutiny required rather than invent it in general. Even now The Court has never explicitly said it gets strict scrutiny (I would agree though at times it seems like they have verged on it in practical terms). So to the extent that ERA forecloses an understanding it is level of scrutiny which it gets, not its existence.

          2. Anyway, at some point original intent and textualism meet. When you’re talking about an interpretation of the text that NOBODY thought it meant, you should probably give up and admit that you’re getting the meaning of the words wrong.

            1. What part of “any person” can be understood to mean race only?

              1. Again, it doesn’t mean race only. EVERY person in the US is entitled to equal protection under the law. ALL citizens are entitled to the privileges and immunities of citizenship.

                This is not a question of who it is applicable to, but of what is applicable to them.

                All men are legally entitled to marry women, all women legally entitled to marry men. It’s true that this leaves homosexuals rather frustrated. It also frustrates pedophiles, necrophiliacs, and incestuals, as well as people sexually attracted to animals and toaster ovens.

                You have an equal right to do what’s legal for anybody else to do, this is not the same as having a right to what you WANT to do being legal.

                Do you think this is bad as a matter of policy, and the 14th amendment should have been more expansive and nuanced? Fine, but it wasn’t.

                1. This whole discussion started by you saying “No, I don’t think sex discrimination is a violation of the EPC”

                  That is a “who” answer not a “what” answer that you are now going back on. I understand the argument you are making now. I don’t agree, but I know it is has support in originalist evidence. But do realize you changed what our discussion was about.

                  1. OK, to clarify, I don’t think sex discrimination (in matters other than protecting people from crimes) is a violation of the EPC.

                2. “You have an equal right to do what’s legal for anybody else to do, this is not the same as having a right to what you WANT to do being legal.”

                  How about when the right you want is stripped away from you, but left intact for others? Is that being treated equal? Sure, they stripped the right to marry someone of the same sex away from people who didn’t want that right just like they stripped it away from people who were legally married at the time…

                  1. What are you raving about? The homosexuals didn’t have the right to get “married” to someone of the same sex stripped from them, they never had it in the first place, because “different sexes” was part of the definition of “marriage”.

                    It simply wasn’t necessary to state that explicitly until some judge decided he was entitled to change the definition.

            2. ” When you’re talking about an interpretation of the text that NOBODY thought it meant, you should probably give up and admit that you’re getting the meaning of the words wrong.”

              If you assume that the creation of law, unlike everything else, is immune from unanticipated results.

              Or you can assume that the words mean what they mean, and the guys who wrote it just didn’t accurately foresee all the results of their word choice(s). Not giving effect to printing mistakes is one thing, but deciding “hey, these guys didn’t predict this, so we have to alter what the words mean and rule accordingly” is, (surprise!) likely to produce some unanticipated results that you didn’t think of.

        2. ” start reading a prohibition against sex discrimination into a Constitution that didn’t have any such thing in it.”

          People who are treated differently because of (X) are not treated equally, for all values of X.

          Judges (and justices, and cops, and politicians, and etc) invent exceptions for why this or that reason for treating people differently aren’t covered by the requirement that everybody be treated equally under the law. Just like judges found all those exceptions to when a cop needs a warrant to search, all those exceptions to an amendment that says flatly “Congress shall make no law…”, and as many other Constitutional sections as you’d care to examine, except for quartering soldiers, AFAICT.

  8. “…There are few more denials of “recognition, stability, and predictability” than a rule that essentially prevents some children from living in the same country as their parents (or, in this case, from doing so for more than 90 days at a time)….”

    I do not understand this sentence, as written. (I believe, however, that I do understand what its intended meaning is.)

    1. I think he meant “few more obvious denials.”

      1. that’s my assumption

        (As I’ve noted previously; at older VC sites, there was an easy way to contact an OP, which means typos could be corrected privately, with a quick note to the author. I hate this sort of thread-jacking….but I guess I’m even more bothered by easily-fixed typos, etc.)

        One of the many many ways that this move to Reason is a big step backwards for the VC, sadly.

  9. Ilya misses the point of the policy entirely. It has two objectives:

    1. Cruelty.

    2. Pandering to the evangelicals.

    1. This policy by State started under Obama. Why would he have wanted to pander to evangelicals?

      (Moreover, how would evangelicals have even known about it?)

      1. “(Moreover, how would evangelicals have even known about it?)”

        Are you suggesting that they DON’T have a direct line of communication with God?

        1. I don’t get the point of posts like these. He completely slapped down someone on your team and you respond with a ‘joke’ that does nothing to refute him or advance your side of the argument and isn’t really funny. Its basically wasted space and effort. The equivalent of farting in protest except that might be amusing.

          1. The fact that you’re so into the team bit says a lot.

            Under Obama if a migrant is being brought up on criminal charges and put in jail, then their kids will be separated from them. But while the migration was illegal, it was a civil offense so everyone just got a court date and were sent on their way. What Trump did was switch migration to a criminal offense so every adult is locked up and their children taken from them.

            The second thing is that the baby concentration camps were built under Obama. We had a surge in children migrating alone at one point, and there was no system in place for immediately getting them into the foster system. The tent city facility was an inadequate, slap-dash solution that has grown into a complete human-rights atrocity under Trump. Obama failed to do right by migrant child, but Trump actively seeks to harm them.

            1. Can you point me to the law that Trump signed where he “switched migration to a criminal offense?”

              Grateful to learn otherwise, but as I understand the law it’s been a criminal act for many years (decades?) to cross the border between ports of entry (maybe there’s also an intent to evade detection clause?), while mere presence in the US is the civil infraction. So if you’re caught sneaking across the border, into the clinker you go. If you’re caught in the US with no record of entry, into the clinker. But if you’re caught in the US with an entry record, but you e overstayed your visa (or visaless period), you don’t go to jail, you just get deported.

              Or did you really mean to say that Trump is actually enforcing a law the President Obama chose to ignore, but you prefer that the law weren’t what it is and so mischaracterize actions based on what you wish the law were?

              1. “switched migration to a criminal offense”

                Trump did no such thing. He just started holding them until the asylum hearings instead of a quick parole pending hearing.

                1. The law permits both criminal and civil penalties for illegal entry. Obama chose to pursue only the latter. In his zero tolerance policy, Trump chose the former in the hope that family separation would deter asylum seekers.

                2. ” He just started holding them until the asylum hearings instead of a quick parole pending hearing.”

                  In other words, he started feeding, clothing, and housing them entirely at public expense, rather than, say, letting them provide for themselves (or allowing people to take on these expenses voluntarily.)

                  He’s nothing but a crazed socialist, looking to pour out the public purse on these people as soon as they show up on American soil.

            2. “baby concentration camps ”

              Idiotic statement.

            3. “Trump actively seeks to harm them”

              The Trump base demands this. Other conservatives, Republicans, and “often libertarian” or “libertarianish” right-wingers appease it.

          2. “I don’t get the point of posts like these”

            It’s called a “joke”. You either find it funny or you continue to be a humorless twit, your choice.

            ” He completely slapped down someone on your team”

            I, um, don’t have a “team”.

            ” that does nothing to refute him or advance your side of the argument”

            I also don’t have a “side of the argument”.

            “The equivalent of farting in protest except that might be amusing.”

            Your preferred choice of humor is noted, but not respected.

    2. No, what’s cruel is bringing a child into the world without a mother, and teaching that child that it’s normal for your “fathers” to be putting their schlongs into each other’s tuchises after a nice “family” dinner.

      1. How is it that you’re so certain that’s their method of pseudo-copulation, rather than just oral? Experience?

        1. He has obviously given this a lot of thought. It might be one point on which one might defer to his judgment and/or experience.

          1. Tellingly, mental health professionals no longer believe that homosexuality is a mental illness, but they do still think that an unusual interest in the sex other people are having (AKA voeyeurism) is.

  10. I as never a fan the argument that discrimination on the basis of sexual orientation is discrimination on the basis of sex. Perhaps of note is that the complaint doesn’t make that argument. On the other hand, the Court will be taking up that question in Altitude Express in the context of Title VII of the Civil Rights Act.

    1. If you have three couples who are married, but you treat the one that consists of one male person and one female person differently from the ones that are two male persons or two female persons, what is different about the people you are discriminating against?

      (Recall that people who are gay can and do enter MF marriages, and people who are straight can enter same-sex marriages, as well Discriminating against people in same-sex marriages is not necessarily discrimination against people based on their sexual orientation.)

      1. In Christian Legal Society, the Court said, “Our decisions have declined to distinguish between status and conduct in this context [homosexual conduct].” For example, the law at issue in Lawrence which proscribed only homosexual sex discriminated on the basis of sexual orientation, not sex. And this was the case even though there are examples of straights engaging in gay sex.

        1. Can you point me to where in either the law or the rules that’s clear?

          As I read it sexual orientation was irrelevant, it was the act itself that was prohibited. Example: Alice and Bob agree to anal sex, but Alice insist that they do so in the dark, and that she will be ready for immediate penetration. Unbeknownst to Bob, Alice switches place with Alex, who Bob then penetrates. Both have broken the law, because while Alex (presumably) has a gay orientation, Bob also engaged in anal intercourse with another man.

          1. Quoting from Christian Legal Society, which in turn quoted from Justice O’Connor’s concurrence in Lawrence:

            While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.

            1. You still haven’t gotten around to answering my original question.

              1. Applying Christian Legal Society, the difference between an M-F married couple and either an M-M or F-F married couple is the same as the difference between M-F sex and either M-M or F-F sex. And, the Court said treating M-F sex differently than either M-M or F-F sex is on account of sexual orientation, not sex.

                1. Except my hypo didn’t include any information about sexual orientation of anyone involved, so they CAN’T be discriminating based on sexual orientation.

                  1. The law at issue in Lawrence didn’t mention anything about sexual orientation and yet in Christian Legal Society, the Court said the law discriminated on the basis of sexual orientation.

                    1. That’s not just moving goalposts, that’s changing the entire playing field.

                      You’re taking a hypothetical that involves not knowing the sexual orientation of people with whether or not a statute refers to sexual orientation, and suggesting they’re interchangeable concepts.

                      Flag on the play..

                    2. Your hypothetical and the statute similarly involve M-F versus M-M/F-F couples.

                    3. Golf and football both similarly involve a ball.

  11. Has anybody bothered to mention the State Department’s side of things? Pretty sure it wasn’t just a case of ‘lol gay so you can’t come over’ that eveybody is implying.

    1. ‘lol gay??????

    2. I believe the State Department argues the policy applies to similarly situated opposite-sex couples, where “similarly situated” means one person is a biological parent and the other isn’t. The problem with this argument is every same-sex couple is automatically subject to the policy while the overwhelming majority of opposite-sex couples aren’t.

      1. Yeah, well that’s what happens when you’re a mentally ill deviant who feels the need to pretend you’re normal.

        1. You have rights too, deviance or not.

          1. They don’t have the right to abuse children.

            1. Your confusion of “they” and “we” is noted, but ignored.

      2. That’s biology… for now. Perhaps with further technological advances, a child can be born with the DNA from both partners of a same sex relationship.

        The larger issue comes in “replacing” a person on the birth certificate with one that isn’t actually genetically related to the child. There are quite profound consequences here.

        1. I’d say it’s actually feasible now, you’d just have difficulty finding a researcher willing to do it until it’s been proven out in other species.

        2. Suggested reading: “Jerry Was a Man”, Robert A Heinlein.

  12. So, a few questions for the forum here to consider

    1. Should a birth certificate list the biological parents, or is it acceptable for the birth certificate to list non-biological (and/or non-gestational) parents?

    2.If a birth certificate lists a non-biological parent, can only one non-biological parent be listed, or can two be used.

    3. In such cases, should the birth certificate with non-biological parents be used as proof of citizenship?

    4. Are there any potential implications or consequences of item 3 being widely adopted?

    1. Excellent summation of the issue.

      My stepsons were allowed entry into the USA because I was marrying their biological mother. However they had to wait 5 years before being eligible for US citizenship.

      IOW this couple could easily have requested a permanent residency visa for their child while working on the US citizenship issue. Their BS about only getting a 90 day tourist visa is a load of crap as well as their excuse about needing to get citizenship immediately so the child could be with the hospitalized parent.

      1. IOW this couple could easily have requested a permanent residency visa for their child while working on the US citizenship issue. Their BS about only getting a 90 day tourist visa is a load of crap as well as their excuse about needing to get citizenship immediately so the child could be with the hospitalized parent.

        Exactly. This suit is merely the LGBTQUERTYASDFWTFLOLBBQ demanding special rights, again.

    2. You have summarized the statutory interpretation issues. Unfortunately, Congress wasn’t clear on these questions. As Somin points out, in such cases it is often correct to interpret the statute to avoid constitutional concerns. Under this principle of statutory interpretation, the married parents should be listed on the birth certificate and used as proof of citizenship because that avoids the constitutional concern of treating same-sex married couples differently than opposite-sex married couples.

      1. Was Congress unclear, or does the statute predate the technological and social changes (IVF, surrogacy, gay marriage, etc.) that made these questions relevant?

        1. The former, which makes the statute unclear.

      2. It was “unclear” only so far as “parents, born of” is unclear.

        But your recommendation (use the married couple, as opposed to the genetic parents) has profound consequences. Especially in countries that don’t recognize same sex marriage. Where you’ve basically just destroyed parental rights for gay and lesbian couples, and their ability to pass American citizenship onto their children.

        Under your ruling, if an American lesbian couple citizen visits India, and has a child there via donor sperm (presume Indian), and the donor is married… The child isn’t American, and the genetic mother has no rights at all to the child, she’s not even on the birth certificate. The child is dictated on the birth certificate as going to the married sperm donor and his wife. Is this what you intended?

        1. Under my interpretation, if the American lesbian couple is married in the eyes of American law, then the couple are the parents and the child would be an American citizen.

          1. American law doesn’t write birth certificates in other countries. Under your interpretation, you would have United States law be applied to other countries and the writing of their birth certificates. Then there’s the other issue, with decentralized birth certificates in the US…

            1. I would have American law apply in determining whether the couple was married, and would have “parents” be construed int he statute to be the married couple when at least one of them is the biological parent.

              1. I need add to my formulation that the other biological parent donated genetic material and has agreed the have no claim to being the parent of the child.

                In the case of England, they will issue a birth certificate identifying the parents as the married couple in all such cases, and that suffices to meet my formulation. For a country such as India, further proof would be required that the criteria have been met.

                1. In the states, husband is legally the father of any kids that come out of wife, regardless of biological pedigree, absent proceedings. Means he’s on the hook for child support even if someone else provided genetic material, whether or not husband is/was aware of the other contribution.

    3. “Should a birth certificate list the biological parents . . . ”

      Unless you propose mandatory DNA testing, how do you expect to identify the biological parent?

      (“Take it on faith” may be considered a legitimate point in conservative circles, but competent adults neither advance nor accept faith-based assertions in reasoned debate.)

      1. When there is a question as to the parentage of the child, indeed, the US State department does recommend DNA testing to prove the parentage.

        1. DNA testing is useless unless you have something to compare to.

          As anyone who’s ever seen daytime television knows, you can prove if a specific person is a parent, or not a parent, but if the first guess is wrong, the DNA test doesn’t do anything to actually identify the missing parent.

          1. In this particular context, if you’d follow the conversation, you have the child in hand, as well as the two parents or supposed parents, which makes the comparison crystal clear.

            1. “In this particular context, if you’d follow the conversation, you have the child in hand”

              Seems like you’re the one having difficulty following the conversation, seeing as how Art said.

              “Unless you propose mandatory DNA testing, how do you expect to identify the biological parent?”

  13. Two generations of imbeciles is never enough

      1. Happy … er I mean … so sorry to hear about your impending suicide. Pack for warm weather.

  14. It seems to me that most of the article is a red herring, or at least discusses something not yet proven to be a factor. The subject under evaluation for citizenship is the CHILD. Therefore, it is NOT sex discrimination unless they are saying that the child would be granted citizenship if it was a different sex. The gov’t. isn’t making a ruling for or against the parents (although it seems like it, but lawyers should recognize the difference). It is evaluating the circumstances of the child, and whether the child qualifies under the rules in place. There is no evidence presented that the sex of the parents has been considered or at issue (other than making it obvious that at least one of them probably has no bio connection, thus triggering scrutiny). The fact that a child of an opposite sex couple may slip through the cracks with a similar set of facts would simply prove that people are less rigorous in following protocol when presented with generic situations. Duh…bureaucrats.

  15. “The same reasoning applies to the State Department policy on children of same-sex parents. Here too, the government discriminates based on the sex of the parents in question. If both are the same sex, they are treated differently than if they are not.”

    That’s not the same reasoning at all. If a law discriminates based on sex, you should be able to figure out which sex it discriminates against. Treating unwed US-citizen fathers worse than unwed US-citizen mothers does discriminate based on sex. It treats women better than men. Discriminating against same-sex couples does not. It doesn’t discriminate against either sex. It treats women involved in same-sex relationships just as poorly as it does men involved in same-sex relationships, while it treats women in opposite-sex relationships better than women in same-sex relationships. Instead, it discriminates against a subcategory of both sexes that happen to share a particular characteristic based on that characteristic.

    And spare me the talk about straight people in same-sex relationships. Not all who wear kippahs are Jews.

    1. Somin argues that men need not be favored over women, or vice-versa, for their to be sex discrimination. He argues that a “but-for” standard should apply. For example, but for being a man, Pete is able to marry Steve.

      I as never persuaded by this argument, but the Court will hear it in Altidutde Express in the context of Title VII of the Civil Rights Act.

      1. I get that’s his argument. I’m just with you in not thinking it’s a particularly persuasive one. It’s too clever by half. It tortures the way ordinary people talk about these issues for little apparent benefit. In all the coverage that Jack Phillips has received, I can’t remember anyone accusing him of engaging in sex discrimination for refusing to bake the cakes. If I told someone that a different baker discriminated against women, I’m pretty confident that 99.44% (or higher) would think that the baker treats women worse than men, not that he refuses to bake cakes for lesbian weddings.

        1. There is one delicious ironic twist which favors Somin’s argument. Some people argued that DOMAs didn’t discriminate against gays because straights and gays equally could not marry a person of the same sex. Of course, that denies the reality of what it means to be gay, and I too believe Somin’s argument is too clever by half by ignoring that reality.

          However, perhaps gay couples should accept stipulate to this formulation. Then, the sex discrimination argument holds water.

          1. ” Of course, that denies the reality of what it means to be gay”

            Lost you at “of course”. WTF are you talking about?

            1. A gay person’s lover is a person of the same sex, so it makes no sense for them to marry a person of the opposite sex.

              1. “A gay person’s lover is a person of the same sex”

                Except when they’re not, sure. Lots of gay persons are married to persons of the opposite sex.

                “it makes no sense for them to marry a person of the opposite sex.”
                Unless you count all the benefits of marriage that have nothing to do with sex, I guess. Before viagra, there were a lot of people in marriages that no longer involved sex at all.

                1. Marriages of convenience don’t change the fact that DOMAs discriminated against gays because they couldn’t marry their lover while straights could.

                  1. It wasn’t unconstitutional discrimination, however, until a state granted them the right to marry someone of the same sex, and then tried to revoke the right.

  16. I appreciate the photo. The last time any of the VC’ers was actually in contact with a black person.

    1. Most of the remarks and Somin’s article support your comment, thanks!

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