WASHINGTON (CN) – An American woman whose wife is from Italy brought a federal complaint Monday against the State Department, claiming it cited an internal agency policy to unfairly deny one of their sons birthright U.S. citizenship.
The couple got married in England and each bore one child within the marriage using their own eggs and sperm donors.
While the State Department granted U.S. citizenship to Massimiliano Axel Zaccari-Blixt, who was born to his American citizen mother Allison Dawn Blixt, it denied citizenship to Massimiliano’s brother Lucas.
Lucas was born to Allison’s Italian wife, Stefania Zaccari.
Elizabeth Cassady with New York-based Sullivan & Cromwell and Aaron Morris from advocacy group Immigration Equality filed a lawsuit in Washington, D.C., federal court on Monday on behalf of Allison and her 2-year-old son Lucas.
The mother and son claim that section 301 of the Immigration and Nationality Act should bestow U.S. citizenship upon both sons, not just Massimiliano, because the law requires only one married parent to be a U.S. citizen.
“The State Department has offered no rationale, in either its initial letter or in response to counsel’s September 5, 2017, inquiry, to explain why it bars same-sex parents from relying upon Section 301,” the 25-page complaint states.
Instead, according to the lawsuit, the agency applied section 309 of the law, which applies only to children born out of wedlock.
“Because the State Department therefore wrongly considered them to have been born ‘out of wedlock,’ it concluded that they could qualify for citizenship at birth only as the children of unwed parents, and therefore could acquire such citizenship only pursuant to Section 309 and only if Allison gave birth to them both,” the complaint says.
Morris, executive director of Immigration Equality, called the State Department policy illegal.
“Here are married, same-sex couples who have given birth to children for whom they are the only legal and actual parents the kids have ever had,” Morris said in a phone interview. “And for the U.S. government to treat their parents either as if they’re not married or as if they are not their parents, is unconstitutional and illegal.”
“Denying a child birthright citizenship is one of the largest and most heinous detriments I can imagine the government imposing upon a baby,” he added.
The lawsuit names the State Department and Secretary of State Rex Tillerson as defendants.
Citing agency policy, the State Department declined to comment on the pending litigation.
According to a State Department website, however, children born abroad must have a biological relationship to a U.S. citizen parent.
“A U.S. citizen mother must be the genetic and/or the gestational and legal mother of the child at the time and place of the child’s birth and must meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth,” the website says.
Morris reads the law differently.
“It just says that if you are an American citizen and you were born and raised in America, and you move abroad and fall in love and get married and you have babies, those babies are born American citizens,” he said. “And that’s all the law says.”
According to Morris, the State Department is applying the law discriminatorily to same-sex couples. Opposite-sex couples are never questioned about biology if they present birth certificates and marriage licenses with both of their names on them at consulate offices, Morris said, adding that they are presumed to be married, to be the parents, and to have custody.
“While it never happens to different-sex couples, it always happens to same sex couples, discriminating against and diminishing the marriage that they have by not offering them the same marriage presumption,” Morris said.
Morris, along with attorneys from Sullivan & Cromwell, filed a similar complaint in Los Angeles on Monday on behalf of a male same-sex couple and their twin sons.
The lawsuits allege due process and equal protection violations, along with violations of the Administrative Procedure Act, which bars arbitrary agency actions.
The complaints seek declaratory and injunctive relief.