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State Dept. Sued Over Citizenship For Same-Sex Couples’ Kids

State Dept. Sued Over Citizenship For Same-Sex Couples’ Kids

Two same-sex married couples accused the Department of State of unconstitutionally denying their children U.S. citizenship on the basis that they were “born out of wedlock” abroad, filing separate suits in California and Washington, D.C., federal courts.

The couples alleged that the children should be entitled to U.S. citizenship under the Immigration and Nationality Act because one of their legal parents is a U.S. citizen married to a foreigner. The State Department’s decision to deny them citizenship therefore represents a failure to recognize their parents’ marriages as legitimate, the couples argued, asking the court to declare that the policy is unconstitutional.

“The agency’s policy unconstitutionally disregards the dignity and sanctity of same-sex marriages by refusing to recognize the birthright citizenship of the children of married same-sex couples,” the complaint in the California case states. “The fact that the State Department’s policy has led children identified by their birth certificates as twins with the same parents to have different nationalities listed on their passports crystallizes both the indignity and absurdity of the policy’s effect.”

At issue in the suit are two separate parts of the INA: one that automatically grants U.S. citizenship to a baby born to married parents, one of whom is a U.S. citizen, and another that requires an unwed U.S. citizen parent to prove that they are biologically related to their child in order for the child to be granted citizenship.

The State Department wrongfully required the married couples in the suits to prove their biological relationship to their children when the children should automatically be granted U.S. citizenship due to the INA’s martial presumption, they argue. In doing so, the department has violated the Constitution’s due process and equal protection provisions, according to the suits.

Andrew Mason Dvash-Banks, a U.S. citizen, and his husband Elad Dvash-Banks, an Israeli citizen, brought the California case on behalf of their twin boys, Ethan and Aiden. They claimed that the department wrongfully focused on the biological relationship between each child and the parent who conceived him.

The twins were conceived and born while the couple was married. One man’s sperm was used to conceive Ethan and the other’s sperm was used to conceive Aiden, fertilizing eggs from the same anonymous donor and carried simultaneously by a surrogate. Only one twin, however, was granted U.S. citizenship, while the other’s citizenship application was rejected on the basis that he was not biologically related to a U.S. citizen.

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