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The State Department is wrong to consider children born "out of wedlock" if they're born abroad to married same-sex couples, a federal judge rules.
A federal court in Georgia ruled Thursday that the U.S. government must recognize the citizenship since birth of Simone Mize-Gregg, who was born two years ago to a married same-sex couple, and issue her a passport.
The State Department had refused to recognize Simone as a U.S. citizen, even though both of her parents, Derek Mize and Jonathan Gregg, are citizens, and children born abroad to heterosexual married U.S. citizens are automatically considered citizens themselves.
But the State Department considered children born abroad to married same-sex couples to be born out of wedlock and denied birthright citizenship to them, saying citizenship at birth requires a biological relationship with both parents -- even though it does not seek proof of this for opposite-sex couples. Simone was born via surrogacy in England; the family now lives in Decatur, Ga.
Her parents sued the State Department in U.S. District Court in Georgia last year, naming Secretary of State Mike Pompeo as defendant, after the U.S. Consulate in London refused to recognize her citizenship. They are represented by Lambda Legal, Immigration Equality, and lawyers from the law firm Morgan, Lewis & Bockius.
Judge Michael L. Brown found that the requirement for a biological relationship with both parents denies same-sex couples one of the benefits of marriage and therefore is constitutionally questionable, as the Supreme Court marriage equality ruling in Obergefell v. Hodges and a subsequent ruling involving birth certificates both said all these benefits must be available to same-sex couples.
And the U.S. Immigration and Nationality Act's language saying a child must be "born of" citizen parents to qualify for citizenship at birth could easily be interpreted as not requiring a biological relationship, he continued. He quoted a ruling from June that reached this conclusion: "[a] child could fairly be deemed to originate from parents other than through a genetic relationship, such as where two married parents both play a fundamental and instrumental role in the creation of the child, for example by, as here, together planning and supporting the use of surrogacy and [assisted reproductive technology] to bring about the birth of a child to whom they have both committed in advance to be a parent."
"Perhaps most tellingly, Defendants explicitly concede that, with respect to whether 'born of parents' requires a biological relationship, 'a reasonable person could read the language either way,'" Brown added.
The State Department also argued that Mize and Gregg's case was moot, as Simone is now considered a naturalized U.S. citizen since the family has established residency in the United States. But the men contended that their family had still suffered discrimination and stigmatization, and Brown agreed that the case was not moot.
"We are so relieved that the court has recognized our daughter, Simone, as the U.S. citizen she has been since the day she was born. When we brought Simone into this world, as married, same-sex parents, we never anticipated our own government would disrespect our family and refuse to recognize our daughter as a U.S. citizen," Derek Mize said in a Lambda Legal press release. "As a result of the State Department's discriminatory actions, we have undertaken a long journey to have our daughter recognized as a U.S. citizen. But today, that journey is complete, and we are overcome with gratitude, for our lawyers and for the court, for recognizing us as a family that is simply trying to give our daughter the best possible start, which all children deserve."
"This is the second federal court this summer to rule against the State Department's policy to treat children of married, same-sex parents as children 'born out of wedlock' and not entitled to birthright U.S. citizenship," Omar Gonzalez-Pagan, Lambda Legal senior counsel and health care strategist, said in the release. "It is time for the federal government to stop defending this unlawful and unconstitutional policy. No family should have to face the fear and uncertainty of having their child's citizenship status be held in limbo." Immigration Equality Executive Director Aaron C. Morris added, "The State Department should change its discriminatory and unconstitutional policy immediately before it hurts another family."
The first ruling of the summer, the one quoted by Brown, came in the case of Kessem Kiviti, daughter of same-sex married couple Roee and Adiel Kiviti. She had also been denied birthright citizenship by the State Department, and a Maryland federal judge ruled in June that the department was wrong to do so and must recognize her as a citizen since birth. Immigration Equality, Lambda Legal, and pro bono counsel represented the Kiviti family as well as the Mize-Gregg family. There was a similar ruling last year in a case involving a Los Angeles family, but the State Department is appealing.
