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, July, and August 2018 indicated that the parties were continuing to try to resolve the matter without resorting to litigation.

On September 3, 2018, the DOS filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. With respect to the constitutional claims, the DOS argued that the plaintiffs failed to state an Equal Protection claim because a legal and biological relationship was required for a child to acquire citizenship from a parent, regardless of sex or sexual orientation of the parent. The DOS argued that the substantive due process right must also fail because the plaintiffs failed to state a fundamental right upon which the government has infringed. The DOS further argued that the Declaratory Judgment Act does not provide a cause of action, and that the plaintiffs APA claim must fail because there is an adequate remedy at law and the Department’s interpretation of “parent” as requiring both a legal and biological relationship was reasonable.

On February 25, 2019, the Court ordered both parties to submit supplemental briefs concerning the DOS’s motion to dismiss, in light of the U.S. District Court for the Central District of California’s recent ruling in Dvash-Banks v. Pompeo, 2019 BL 63916 (C.D. Cal.), a summary of which can be found here.

On March 19, 2019, the parties filed their supplemental memorandum. While the DOS found aspects of that ruling to be flawed, it encouraged the court in the present case to strongly consider the court’s ruling insofar as it dismissed those plaintiffs’ APA and Declaratory Judgment Act claims. The plaintiffs, for their part, distinguished the dismissal of the APA claim in Dvash-Banks from the present case, and argued that the central holding from the Dvash-Banks court supports their argument that the child plaintiff acquired citizenship at birth.

This case is ongoing.

Ava Morgenstern - 04/08/2018
Virginia Weeks - 07/17/2018
Alexandra Gilewicz - 03/31/2019


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