On January 22, 2018, a mother and her minor son filed this lawsuit in the District Court for the District of Columbia. The plaintiffs sued the U.S. Department of State (DOS) for not granting U.S. citizenship to the child plaintiff, because he was born outside of the U.S. to a same-sex dual-nationality couple. Represented by the nonprofit organization Immigration Equality and the private law firm Sullivan & Cromwell (who also represented plaintiffs in a similar lawsuit filed the same day), the plaintiffs sought declaratory and injunctive relief granting birthright U.S. citizenship to the child.

The adult plaintiff, a natural-born U.S. citizen, entered into a civil partnership with her Italian partner in England in 2009. (The partnership was later converted into a marriage after the legalization of same-sex marriage in England in 2015.) While living in England, both women each gave birth to one son, with sperm from a donor. Both the children's birth certificates listed only the names of the two mothers as parents.

However, when the mothers applied for U.S. citizenship for the two sons, DOS only recognized the citizenship of the son born to the U.S. citizen, under the Immigration and Nationality Act (INA) § 301(g) (8 U.S.C. § 1401(g)) (governing derivation of U.S. citizenship for a child born abroad to a U.S. citizen). DOS did not recognize U.S. citizenship of the child plaintiff born to the Italian woman because he lacked a biological or adoptive relationship to the U.S. citizen adult plaintiff. According to the plaintiffs, DOS erroneously considered this child born "out of wedlock" and not entitled to U.S. citizenship at birth under INA § 309 (8 U.S.C. § 1409).

The plaintiffs asserted that DOS had a policy of discrimination against the children of same-sex couples. Any child born to a U.S. citizen woman married to a man was born "in wedlock." But a child of a U.S. citizen who was not the biological or adoptive parent, but instead whose spouse conceived through reproductive technology, could be considered born "out of wedlock." The plaintiffs argued that this policy, which largely burdened same-sex couples, was unsupported by the INA's text and intent to keep families together, as well as case law supporting the rights of same-sex married couples.

The plaintiffs alleged that DOS's policy and its application to plaintiffs violated the Due Process and Equal Protection Clauses of the Fifth Amendment to the U.S. Constitution, as well as the Administrative Procedures Act (APA) as arbitrary, capricious, and contrary to the INA.

The case was assigned to Chief Judge Beryl A. Howell, and then reassigned to Judge Emmet G. Sullivan.

Status reports filed in May and July 2018 indicated that the parties were continuing to try to resolve the matter without resorting to litigation.

This case is ongoing.

Ava Morgenstern - 04/08/2018
Virginia Weeks - 07/17/2018


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