Photo Credit: Jason Doiy / The Recorder

The State Department unconstitutionally classifies children of married same-sex couples as “born out of wedlock,” resulting in the denial of U.S. citizenship for some of those children, a bicoastal pair of lawsuits filed Monday claims.

The plaintiffs in the suits, one filed in the District of Columbia and the other in the Central District of California, are U.S. citizen parents in same-sex marriages with noncitizen spouses. They allege that because they are in same-sex marriages, the State Department treated their requests to confer citizenship to their children differently than it does heterosexual couples.

According to the lawsuits, though one provision of the Immigration and Nationality Act entitles those born abroad to citizenship at birth if one married parent is a U.S. citizen, the State Department instead evaluated the plaintiffs' children's rights to citizenship under another section that only applies to children born out of wedlock. Under that section, the children can only be citizens if they have a biological link to a citizen parent.

“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,” both lawsuits claim.

The plaintiffs on both coasts are represented by the immigrant rights organization Immigration Equality, as well as a team of lawyers from Sullivan & Cromwell that includes partner Theodore Edelman, special counsels Jessica Klein and Elizabeth Cassady, and associates Alexandra Moss, Scott Blair and Alexa Lawson-Remer.

The case in Washington, D.C., was brought by a London-based Slaughter and May lawyer on behalf of U.S. citizen Allison Blixt. Blixt's wife, Stefania Zaccari, is an Italian citizen. They have two sons: Lucas, who was conceived and carried by Zaccari, and Massi, conceived and carried by Blixt. While Massi was granted citizenship in 2017 because Blixt conceived and gave birth to him, Lucas was denied citizenship.

In California, Andrew Dvash-Banks brought the lawsuit. Dvash-Banks is a U.S. citizen, and he is married to an Israeli citizen, Elad Dvash-Banks. They have twins, Ethan and Aidan. Ethan was conceived using Elad's genetic material, while the Aidan was conceived using Andrew's. Aidan was granted citizenship last year, and Ethan was not.

In both situations, the lawsuits allege, the State Department denied citizenship to the children because they did not have a biological connection to the parent with U.S. citizenship, the lawsuits allege.

A request for comment from the State Department was not immediately returned, as the federal government is shut down as of writing.

Immigration Equality director Aaron Morris said that if the couples were heterosexual, they likely would not have even been questioned by department officials about the genetic makeup of their children.

“To use that requirement in these cases is both implicit and explicit evidence that the government is treating same-sex couples as if they are not married,” Morris said.

Morris said the State Department's policy directly contradicts decisions in recent Supreme Court cases like Obergefell v. Hodges and Pavan v. Smith, which mandate that same-sex couples have “the constellation of benefits that the states have linked to marriage.” That includes, Morris said, the right to confer citizenship to one's child.

Both lawsuits allege that the policy violates the Fifth Amendment's due process and equal protection clauses. They also brought a claim under the Administrative Procedure Act, on the grounds the policy conflicts with the clear purpose of the INA to keep families together, and is arbitrary and capricious.

The suits seek declarations that the alleged policy is unconstitutional, as well as a permanent injunction barring the department from continuing to discriminate against married same-sex couples.