The Volokh Conspiracy
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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.