The landmark U.S. Supreme Court ruling in Obergefell v. Hodges granted marriage equality to all couples, regardless of gender, stating that same-sex couples “… ask for equal dignity in the eyes of the law. The Constitution grants them that right. … It is so ordered.”

But for some same-sex couples, the rights granted to them under the Constitution are under attack from all angles, and particularly in regards to the citizenship status of their children. The U.S. State Department is withholding citizenship from a handful of children born abroad to same-sex parents.

For James Derek James, a U.S.-born American, and his husband, Jonathan, a British-born man whose U.S. citizenship was granted through his American mother, they face uncertainty for their daughter. The couple's path to parenthood came about through surrogacy, wherein the woman who carried their daughter, Simone, donated the egg, which was fertilized by Jonathan, the British-born father. Jonathan, who was raised in Britain, moved to America to be with James, and the couple was married in 2015, after same-sex marriage became the law of the land.

The letter they received denies Simone's U.S. citizenship stating Jonathan has not lived in the United States long enough for his biological daughter to qualify for automatic citizenship. The requirement, according to the State Department, is five years. This completely ignores the fact that U.S.-born James is also her father and is on Simone's birth certificate. Because James is not biologically related, Simone's certification as a U.S. citizen has been denied.

The State Department's policy hinges on the 1952 Immigration and Nationality Act, an outdated piece of legislation that does not address scientific breakthroughs for medically assisted birth or the legality of same-sex relationships. The State Department's policy concerning assisted reproductive technology wasn't written until the 1990s, and includes language for “blood relationships” in certain cases. The rule is intended to ensure children born abroad have sufficient connection to the United States to qualify for citizenship.

If James and Jonathan's marriage were being properly recognized, that connection is clear, regardless of how long Jonathan has resided in the United States.

The State Department's interpretation of that rule also classifies children conceived with medically assistive reproduction technology as born “out of wedlock.” Aside from the insulting nature of such a designation, the practicality of it raises the bar on documentation and additional steps required to secure citizenship.

“Out of wedlock” is not how opposite-sex couples are considered if they, like James and Jonathan, require donor material to complete fertilization of an embryo. Say, for example, a heterosexual couple with U.S. citizenship status lives abroad, and they learn the unfortunate news that the husband does not have viable sperm. They choose to have a child with donor sperm, and their baby is born in England. All other things being equal to the James-Jonathan family, including the length of time the wife has lived the United States at the time of citizenship application, the resulting baby would not be considered conceived “out of wedlock.” Their baby would be granted U.S. citizenship because that couple's marriage is never in question as valid. There is no “out of wedlock” designation, and therefore, no elevated criteria to meet with the State Department.

Therein lies the discrimination.

James and Jonathan are not the only couple facing this discrimination. Andrew and Elad Dvash-Banks married in Canada in 2010, and their twin sons, Aiden and Ethan, were born in Canada via a surrogate in 2016, with their fathers contributing biologically to one child each. Andrew is a U.S. citizen, while Elad has Israeli citizenship. The couple decided in 2017 to move to the Los Angeles area to be closer to Andrew's family, and applied for their children's U.S. citizenship. Only one twin, the one biologically related to Andrew, was granted a U.S. certification, while the other, biologically related to Elad, was denied.

The couple knew something wasn't quite right when, after the twins were born, they went to the U.S. Embassy in Toronto to certify the children's citizenship and were told they had to provide DNA for testing.

The Dvash-Bankses sued the State Department, and the U.S. Court of Appeals for the Ninth Circuit held that the twin initially denied citizenship should be recognized as a citizen since birth. Judge John F. Walter ruled that federal law does not require a child born to married parents to have a biological connection to both parents.

Ethan was only allowed to enter the United States on a tourist visa, which expired in December of 2018. When the family sued, he was living undocumented in California, a status that caused his parents a significant amount of stress. Beyond the fear of their child being deported, they dealt with the inconsistencies every day. Daycare enrollment was difficult, as was filing taxes without Ethan possessing a Social Security number. Walter lifted that burden in his ruling, requiring the State Department to issue Ethan a U.S. passport.

Despite issuing the child's passport, the State Department has appealed the ruling. The couple's attorney and executive director of Immigration Equality, Aaron Morris, says the appeal is a direct denial of their rights as a married couple. “The government's decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory and morally reprehensible.” He also says this is a matter of settled law, that the Ninth Circuit Court has already established that citizenship may pass from married parent to child regardless of biological relation.

The next step is oral arguments in front of the full panel of the Ninth Circuit Court, further putting the family through the wringer. In the meantime, Ethan's passport remains valid, and he is a U.S. citizen.

Legal experts have called the State Department's interpretation of the law a mismatch of immigration and family law, saying it runs counter not only to the societal understanding of marriage, but also the legal understanding of parenthood. During arguments, the State Department defends the policy by saying officials are required to investigate all assisted reproductive citizenship cases, regardless of the sex of the parents, and that biological proof of relationships are often required of opposite-sex couples, as well.

Advocates disagree, stating the State Department puts undue burden on same-sex couples. For James and Jonathan, that burden is clear. Both men are U.S. citizens, and yet, in the eyes of the State Department, that isn't good enough. So Simone travels back and forth to Britain with her fathers to keep her tourist visa valid. Because without it, her legal status is in limbo, as is the case with an untold number of other families whose children do not meet the exacting criteria the “out of wedlock” designation requires.

In Obergefell, birth certificates were specifically listed among the “government rights, benefits and responsibilities” that accompany marriage in all its symbolic and material recognition of the institution, and in the 2017 case of Pavan v Smith, the Supreme Court ruled that states may not treat same-sex couples differently from opposite-sex couples in the issuance of birth certificates.

It stands to reason, by extension, that marriage equality also grants citizenship status for same-sex couples and their children as it would opposite-sex couples and their children. The State Department's rules do not follow this logic, and as such, violate the Fourteenth Amendment and the Equal Protection Clause of the Constitution, the foundation on which Obergefell rests. For these families in limbo, the fight is excruciating.

As we celebrate Pride Month, please remember this kind of discrimination is why we marched in the wake of Stonewall and why we cannot become complacent and continue to march, not just throughout the month of June but every day, for the rights of all LGBTQ individuals, couples and families.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at [email protected].