RELEASE: Immigration Equality and Sullivan and Cromwell LLP File Two Lawsuits Against U.S. State Department for Discriminating Against Married Same-Sex Couples and Their Children

Washington, D.C. and Los Angeles, CA (January 22, 2018) – Today, Immigration Equality and Sullivan & Cromwell LLP filed two lawsuits against the U.S. State Department for refusing to recognize the valid marriages of same-sex bi-national couples and disenfranchising their children by denying their rightful citizenship at birth.

“The State Department is refusing to acknowledge the citizenship of children whose parents are same-sex married couples. This policy is not only illegal, it is unconstitutional,” said Aaron C. Morris, Executive Director of Immigration Equality and the couples’ attorney. “This action by the State Department disenfranchises children born to bi-national same-sex parents and places an undue burden on their families.”

If an American is born and raised in the United States, and then gets married to a foreign national abroad, the couple’s children are entitled to birthright U.S. citizenship whether they are born in the U.S or not. The law treats married couple’s children as their offspring from birth. Immigration Equality and Sullivan & Cromwell, acting pro bono, are representing two plaintiff families who are being wrongly denied that right.

Allison Blixt and Stefania Zaccari

Allison is a U.S. citizen who is married to Stefania, an Italian citizen. Allison and Stefania met in New York when Stefania was there on vacation. Though they wanted to live together in the U.S., Allison could not sponsor Stefania for a visa because of the Defense of Marriage Act (which was struck down in 2015 by the Supreme Court in Obergefell v. Hodges). So the two women moved to London and built a life there, including getting married and having two sons, Lucas and Massi. Because Allison was born and raised in the United States, she is able to pass her citizenship on to her children even though they were born abroad. However, the State Department refused to recognize the validity of Allison’s marriage. Thereafter, it construed Massi as being Allison’s son because she had given birth to him. However, it denied that Lucas, who was carried by Stefania, was her son. In fact, in refusing to recognize that Lucas was a citizen, the State Department explicitly informed the couple that it was using a policy applicable solely to unwed mothers. Immigration Equality and Sullivan & Cromwell sent a letter to the State Department advising them of their flawed reasoning, citing Allison and Stefania’s marriage at the time of Lucas’s birth and the policies that apply to their situation, and yet the State Department again refused to recognize Lucas’s citizenship.

Read the complaint filed on behalf of Allison and Lucas.

Andrew Dvash-Banks and Elad Dvash-Banks

Similarly, Immigration Equality plaintiffs Andrew (a U.S. citizen) and Elad (an Israeli citizen), met while Andrew was studying in Israel. The couple wanted to live together in the U.S. but were unable to because of the Defense of Marriage Act, so they married and created a home in Canada. There, they had twin sons through surrogacy. When they sought recognition of the twins’ U.S. citizenship, Andrew and Elad were forced to submit DNA tests and other documentation of their biological relationships to their boys, even though the law imposes no biological requirement. Because one son was conceived with the sperm of one father and the other son with the sperm of the other father, one of these twins is being treated by the U.S. government as a U.S. citizen while the other was forced to enter the U.S. on a tourist visa.

Read the complaint filed on behalf of Andrew and Ethan. 

More Background Information:

Currently, the Immigration and Nationality Act has several scenarios in which a baby born abroad derives U.S. citizenship from birth. One provision states that a baby born abroad “in wedlock” to a U.S. citizen and a foreign person acquires citizenship at birth.

For different-sex parents, when a mother and father walk into a U.S. consulate with a marriage license and a birth certificate, they ultimately walk out with a U.S. passport for their child. For same-sex parents, when two married fathers walk into a consulate with a marriage license and a birth certificate (listing both fathers as exclusive birth parents), they are asked invasive questions about how the baby was created, gestated, and birthed. This is the same for two mothers. If a baby has no biological relationship to the U.S. citizen, the child is wrongly refused citizenship.