- Free Minds and Free Markets

Late last week, a federal district court ruled against a Trump Administration State Department policy of denying citizenship to some children of same-sex couples with U.S. citizens born abroad. The decision was drafted by a Trump agent, Judge Michael L. Brown, of the U.S. District Court for the Northern District of Georgia. I wrote about the case here before. Here is an excerpt from Judge Brown's decision describing the facts:

Plaintiffs James Derek Mize and Jonathan Daniel Gregg are US citizens who are married to each other. In 2018 they had a child who used Gregg's sperm, an anonymously donated egg, and a pregnancy substitute. The child, plaintiff S.M.-G., was born in England, and that country issued a birth certificate in which Mize and Gregg were the parents of S.M.-G. are listed. The couple later applied for a U.S. passport and other proof of citizenship for their daughter. The US State Department denied SM-G's applications and concluded that she was not a US citizen at birth because she has a biological relationship with only one of her national parents (Gregg), who had not been physically present in the United States long enough. The Ministry of Foreign Affairs S.M.-G. as if she was born out of wedlock.

Plaintiffs filed a lawsuit against this finding, arguing that the State Department's actions violated the Immigration and Citizenship Act ("INA"), the United States Constitution's procedural clause, and the Administrative Procedure Act ("APA").

As I noted in my earlier post on this case, State Department policies generally do not treat children of foreign-born couples of different sexes as being "illegitimate" even if one of the parents has a "biological" relationship with the child (for example because the parents had to use assisted reproductive technology or a replacement). This issue is further discussed in a June ruling denying the same policies of Judge Theodore Chuang of the US District Court for Maryland (a Liberal Obama appointee). As Judge Chuang and I pointed out, this discriminatory treatment of same-sex and same-sex couples goes against the decision of the Obergefell v. Supreme Court. Hodges (2015) and Pavan v. Smith (2017), same-sex married couples entitled to the same "rights, benefits and duties" of marriage as those of the opposite sex. This certainly includes the right to transfer citizenship to their foreign-born children.

For this reason, among other things, Judge Chuang interpreted the relevant provision of the INA to mean that children of same-sex couples who were born abroad must receive US citizenship even if one of the parents lacks a "biological" relationship with the child. This is mandated by the "Constitutional Circumvention" canon, which requires the courts to interpret federal law to avoid constitutional problems wherever reasonably possible.

Judge Brown comes to the same conclusion in a similar but slightly different way. As he notes, Section 301 (c) of the INA grants US citizenship to "a person born outside of the United States, and outside possession of parents who are both citizens of the United States, one of whom is a resident of the United States States had United States or one of its remote possessions prior to that person's birth. "The State Department interprets the phrase" born … of parents "to require a" biological "connection with both parents. This categorically excludes children born to a same-sex male couple, as two men can never be the birth parents of the same child. It also appeared to exclude female and same-sex couples using assisted reproductive technology (ART).

Over time, however, the State Department changed the policy to include "biological" marriage situations in which a US parent either donated an egg implanted in a surrogate mother or was themselves the "pregnancy" parent to an egg that was was donated by someone outside of marriage. This opened the door for citizenship to be granted to many foreign-born children of same-sex female couples and same-sex married couples who use ART. In addition, as noted above, in practice the Ministry of Foreign Affairs assumed that there was a sufficient "biological" connection in cases where the parents were married couples of different sexes. But male same-sex couples were categorically excluded. As Judge Brown puts it, "The State Department says that two married men can never have a child abroad who they believe is legitimate."

Judge Brown ruled that this matter violated the canon of constitutional evasion:

"(D) The constitution entitles same-sex couples to civil marriage under the same conditions as same-sex couples." Pavan v. Smith, 137 S. Ct. 2075, 2076 (2017). This includes equal access not only to the "symbolic recognition" of marriage, but also to the "material benefits" associated with it. Obergefell v. Hodges, 576, US 644, 669 (2015)….

These cases raise serious doubts about the constitutionality of a parent-child biological requirement in section 301 (c). This provision allows married US citizens to grant their foreign-born children first-born rights if either spouse has previously lived in the US. The ability to confer citizenship
These circumstances could reasonably be considered an "advantage" without the additional burdens of other provisions. This benefit is "related to marriage" as it is not available to unmarried couples. And according to the biological reading, Section 301 (c) would deny access to this benefit to married same-sex male couples because it is "impossible" for two men to be biologically related to the same child.

The Court notes that although section 301 (c) is reasonably consistent with the non-biological reading, it is also consistent with the biological reading. Since non-biological reading is "quite possible" and biological reading would raise serious constitutional questions, the Court must adopt the former under the doctrine of constitutional avoidance.

To begin the position, Judge Brown provides a good explanation of why the "non-biological" interpretation of Section 301 (c) is at least as plausible as the "biological", if not more.

Judge Brown's analysis could have been even stronger if, like Judge Chuang, he had recognized that the State Department makes little practical effort to enforce "biological" restrictions on citizenship for children of different sexes. This further undermines the claim that politics only discriminates on the basis of "biological" ties, as opposed to parents' sex.

In my earlier post, I also explain additional reasons why this policy is classified as unconstitutional discrimination based on sex, apart from the related, but partly clear, question of whether Obergefell can come into conflict.

Judge Brown's ruling also addresses a number of procedural issues, notably why the baby and his or her parents are still eligible to pursue this lawsuit even though she was ultimately granted citizenship as a "naturalized" citizen. I would add that another reason this reputation continues is because there is at least one relevant distinction between naturalized citizens and those who receive citizenship at birth. Only the latter are allowed to become President of the United States under the Natural Born Citizen clause of the Constitution.

Litigation over this issue is likely to continue in federal appeals courts, at least as long as the Trump administration remains in office. Should Joe Biden win the election, the new administration could simply admit these cases and change State Department policies. In both cases it is remarkable that two judges as ideologically different as Judge Brown and Judge Chuang (a Liberal Obama appointee) reached the same conclusion on this issue.

UPDATE: I edited the title of this post to make it clearer.

By getthru

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