Gay Marriage

Federal Court Strikes Down State Department Rule Denying Citizenship to Foreign-Born Children of Same-Sex Couples

The ruling was issued by a conservative Trump appointee.

|The Volokh Conspiracy |

Late last week, a federal district court issued a decision striking down a Trump Administration State Department policy denying citizenship to some children of US-citizen same-sex couples born abroad. The decision was written by a Trump appointee, Judge Michael L. Brown, of the US District Court for the Northern District of Georgia. I previously wrote about the case here. Here is an excerpt from Judge Brown's decision, describing the facts of the case:

Plaintiffs James Derek Mize and Jonathan Daniel Gregg are U.S. citizens married to one another. In 2018, they had a child using Gregg's sperm, an anonymously donated egg, and a gestational surrogate. The child, Plaintiff S.M.-G., was born in England, and that country issued a birth certificate listing Mize and Gregg as S.M.-G.'s parents. The couple later applied for a U.S. passport and other proof of citizenship for their daughter. The U.S. Department of State ("State Department") denied S.M.-G.'s applications, concluding she was not a U.S. citizen at birth because she shares a biological relationship with only one of her citizen parents (Gregg) who had not been physically present in the United States for long enough. In doing so, the State Department treated S.M.-G. as if she had been born out of wedlock.

Plaintiffs filed suit challenging that determination and arguing the State Department's actions violate the Immigration and Nationality Act ("INA"), the Due Process Clause of the United States Constitution, and the Administrative Procedures Act ("APA").

As I noted in my earlier post on the case, State Department policy generally does not treat children of opposite-sex married couples born abroad as being born "out of wedlock," even if one of the parents lacks a "biological" relationship to the child (for example, because they parents had to use assisted reproduction technology or a surrogate). This issue is further discussed in a June decision striking down the same policy issued by Judge Theodore Chuang of the US District Court for the District of Maryland (a liberal Obama appointee). As Judge Chuang and I pointed out, this discriminatory treatment of opposite-sex and same-sex couples violates the Supreme Court's ruling in Obergefell v. Hodges (2015), and Pavan v. Smith (2017), which  entitle 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.

For that reason, among others, Judge Chuang interpreted the relevant provision of the INA as requiring a grant of US citizenship to children of same-sex couples born abroad, even if one of the parents lacks a "biological" relationship to the child. Doing so is mandated by the canon of "constitutional avoidance," which requires courts to interpret federal statutes in ways that avoid constitutional problems, wherever it is reasonably feasible to do so.

Judge Brown reaches the same conclusion by a  similar, but slightly different route. As he notes, Section 301(c) of the INA grants US citizenship to "a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person." The State Department interprets the phrase "born….of parents" as requiring a "biological" connection to both parents. That  categorically excludes children born to a same-sex male couple, since two men can never be biological parents of the same child. It also appeared to exclude female and opposite-sex couples that use assisted reproduction technology (ART).

Over time, however, the State Department modified the policy to count as "biological" connection situations where a US female parent either donated an egg implanted in a surrogate or was herself the "gestational" parent for an egg donated by someone outside the marriage. That opened the door to granting citizenship to many children born abroad to same-sex female couples, and opposite-sex married couples using ART. In addition, as already noted, the State Department in practice presumed that there was a sufficient "biological" connection in cases where the parents are an opposite-sex married couple. But male same-sex couples were categorically excluded. As Judge Brown puts it, "The State Department says two married men can never have a child abroad that it considers having been born in wedlock."

Judge Brown ruled that this state of affairs violates the canon of constitutional avoidance:

"[T]he Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples." Pavan v. Smith, 137 S. Ct. 2075, 2076 (2017). This includes equal access not just to the "symbolic recognition" of marriage but also to the "material benefits" that come with it. Obergefell v. Hodges, 576 U.S. 644, 669 (2015)….

These cases raise serious doubts about the constitutionality of a biological parent-child requirement in Section 301(c). That provision allows married U.S. citizens to confer birthright citizenship on their foreign-born children if either spouse resided previously in the United States for any length of time. The ability to confer citizenship under
these circumstances, without the additional burdens imposed by other provisions, could reasonably be viewed as a "benefit." That benefit is "linked to marriage" because it is unavailable to unmarried couples. And, under the Biological Reading, Section 301(c) would preclude married same-sex male couples from accessing this benefit because it is "impossible" for two men to be related biologically to the same child….

The Court finds that Section 301(c) is reasonably consistent with the Non-Biological Reading, even if it is also consistent with the Biological Reading. Because the Non-Biological Reading is "fairly possible," and because the Biological Reading would raise serious constitutional questions, the Court must adopt the former under the doctrine of constitutional avoidance.

Earlier in the opinion, Judge Brown offers a good explanation of why the "non-biological" interpretation of Section 301(c) is at least as plausible as the "biological" one, if not more so.

Judge Brown's analysis could have been even stronger had he recognized, as did Judge Chuang, that the State Department, in practice, makes little effort to enforce any "biological" constraints on citizenship grants to children born to opposite-sex married couples. That further undermines the claim that the policy discriminates purely based on "biological" ties, as opposed to the sex of the parents.

In my earlier post, I also explain additional reasons why this policy qualifies as unconstitutional sex discrimination, even aside from the related, but partly distinct issue of running afoul of Obergefell.

Judge Brown's ruling also addresses a number of procedural issues, most notably the question of why the baby and her parents continue to have standing to pursue this lawsuit, despite the fact that she was ultimately granted citizenship as a "naturalized" citizen. I would add that one additional reason why such standing continues, is that there is at least one relevant difference between naturalized citizens and those who gain citizenship at birth. Only the latter are allowed to become president of the United States under the Natural Born Citizen Clause of the Constitution.

The litigation over this question is likely to continue in federal appellate courts, at least so long as the Trump administration remains in office. Should Joe Biden win the election, the new administration may well just concede these cases and change the State Department policy. Either way, it is notable that two such ideologically divergent judges as Judge Brown and Judge Chuang (a liberal Obama appointee) have reached the same conclusion on this issue.

UPDATE: I have edited the title of this post to make it clearer.

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  1. “The ruling was issued by a conservative Trump appointee.”

    So what? The Supreme Court’s precedents seem fairly clear and unavoidable.

    1. Also, Trump openly supported gay rights during his campaign.

  2. “she shares a biological relationship with only one of her citizen parents (Gregg) who had not been physically present in the United States for long enough. “

    If Gregg had cheated on his husband and gotten some girl pregnant the old way, what would happen then? Gregg’s marriage would be irrelevant — it would be his citizenship and that of the girl. Likewise if Gregg had a wife.

    So here it comes down to Gregg and the gestational surrogate. and if neither of them has been an American long enough to sponsor the child, it sucks to be them.

    The mistake was not using Mixe’s sperm, and they should have known that.

    1. This is indisputable. Time for Kooky Kosmopolitan Klan to throw feces and stomp their feet.

    2. IF the State Department had had a prior pattern of treating opposite sex parents who use a surrogate that same way, you’d have a stronger case.

      Since the State Department has previously said that a wife who met the residency requirement can establish the legal connection even when she has no biological connection to the child (either because she uses a surrogate or is the surrogate), so could Mixe. The court simply held them to their prior standard.

      1. I’m a bit puzzled by this business of holding the State Department to its prior standard.

        The court seems to be analysing the language of the statute – what’s State department policy got to do with anything ?

        1. See the paragraph beginning “Over time, however, …” The court seemed to me to be analyzing more than the raw, uninterpreted language of the statute.

      2. If the baby had come out of Mixe’s belly, it would be a very different story.

    3. Hmm, if only this point were addressed in the post or the decision.

  3. “Either way, it is notable that two such ideologically divergent judges as Judge Brown and Judge Chuang (a liberal Obama appointee) have reached the same conclusion on this issue.”

    It would be great if Professor Somin could expand and clarify on this last point.

    1. Professor Somin appears to believe that the whole rest of the world has the right to invade our country and steal our stuff.

      1. It’s been the policy if both parties to bring in immigrants as fast as possible to shore up social security, since the 1990s.

        They are a net benefit. It’s hard to say they are a problem with employment in the greatest economy in 50 years, skipping recent inevitabilities.

        1. Of course that presumes they won’t elect politicians that hate business, which is a separate issue. That’s a Republican error there.

          1. …in that they should have friendlier policies.

    2. I believe the implications is that the ruling was clearcut, and the State Department’s policy had more to do with rabble-rousing than with the law.

  4. So Ted Cruz isn’t a natural born citizen because his mother didn’t have a residence in America??

    1. ?? This post has nothing to do with Ted Cruz. This post is about the rules that apply to children with two U.S. Citizen parents. Ted Cruz only had one parent who was a citizen at the time of his birth.

      1. And his mother didn’t have a residence in America.

        1. I think you will find that Gregg wasn’t born here.

          My guess is he got his citizenship via marriage.

        2. “And his mother didn’t have a residence in America.”

          So what?

          1. So Cruz isn’t eligible…so sadz. 🙁

  5. Foreigners have no more constitutional rights than fetuses. The whole basis of abortion is that personal autonomy is analogous to national sovereignty. Freedom of choice includes the right to make choices that others think wrong. If laws that prohibit discrimination on the basis of sex in abortion decisions unconstitutionally impede personal freedom of choice, a foriorti judicial norms that impede sovereign freedom of choice must necessarily be uncomstotutional.

    The concept if discrimination necessarily implies personhood. One can only discriminate against persons. There is no concept of discrimination where no persons are involved. One can’t discriminate against Gloria Steinem’s appendix.

  6. It looks to me like the State Department deliberately threw the case by conceding that there might be an ambiguity in the statute, ie that the “Non-Biological” interpretation was a thing.

  7. the key explanation, I think:
    Of course, that interpretation leaves out many children born to U.S.
    citizens through assisted reproductive technology (“ART”). In 2014, the
    State Department modified its handbook to address that situation by
    providing that “a woman may establish a biological relationship with her
    child either by virtue of being the genetic mother (the woman whose egg
    was used in conception) or the gestational mother (the woman who
    carried and delivered the baby).” 8 FAM § 301.4-1(D)(1)(c). No
    amendment to the INA triggered this change; the State Department
    simply altered its implementation of the statute. As a result, when a U.S.
    citizen wife acts as a gestational mother for a donor egg fertilized by her
    citizen husband’s sperm, the State Department now considers that child
    to have been born in wedlock of two citizens. 8 FAM §304.3-1(a) And,
    when two married women who are citizens decide one of them will carry
    an egg donated from the other and fertilized by an anonymous sperm
    donor, the State Department reaches the same conclusion — that child is
    considered to have been born in wedlock of two U.S. citizens. 8 FAM
    §304.3-1(b). In this latter instance, the State Department determines the
    child has a biological relationship with two women and totally ignores
    the citizenship of the sperm donor. But, not two dads. The State
    Case 1:19-cv-03331-MLB Document 76 Filed 08/27/20 Page 8 of 56
    9
    Department says two married men can never have a child abroad that it
    considers having been born in wedlock.

  8. I have a hard time understanding why this is an issue. The child has two parents that will look after the child. The parents are US citizens paying taxes to cover and government services the child will get. This seem like another attempt by the Trump Administration to be a bully and score cheap point by treating gays badly. Another reason to show Trump the door out in November.

    1. I think it’s two issues that it benefits from – first, it’s anti-gay as you said. Second, it’s anti-immigrant. There’s a policy to be restrictive on all aspects of immigration. This person was able to naturalize, but others might not be able to or could become removable prior to naturalization (plus, there’s always the debate over the ability of the government to de-naturalize someone).

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