A federal judge in Los Angeles ruled yesterday that the son of two married men, one a U.S. citizen and one an Israeli citizen, must be recognized as a U.S. citizen like his twin brother. But the ruling does not change a State Department policy that will allow continued discrimination against same-sex couples and their children.
The court recognized the birthright citizenship of Ethan Dvash-Banks, the son of U.S.-citizen Andrew Dvash-Banks and his Israeli husband Elad Dvash-Banks. Two-year-old Ethan was previously denied recognition of his citizenship—even though his twin brother was granted it.
Andrew and Elad met while Andrew was studying in Israel. They wanted to live together in the U.S. but were unable to do so because of the Defense of Marriage Act. Instead, they married and settled in Canada, where they had twin sons through surrogacy. When they sought recognition of the twins’ U.S. citizenship, the State Department demanded DNA tests and other documentation of their biological relationships to the boys, even though, said Immigration Equality, the law imposes no biological requirement. One son was conceived with the sperm of one father and the other son with the sperm of the other father, so the State Department said one is a U.S. citizen while the other is not. The latter, Ethan, had to enter the U.S. on a tourist visa.
Yesterday, Judge John F. Walter of the U.S. District Court for the Central District of California ruled that Ethan does indeed have birthright citizenship in the U.S. Because this was a clear statutory ruling, however, Judge Walter did not decide on the constitutional issue the plaintiffs had raised, namely, that the State Department’s policy “violates the due process guarantee of the Fifth Amendment by infringing on the fundamental right of same sex couples to marry.”
That means that at least one other family must continue to fight for its right to be a legal family. Allison Blixt, a U.S. citizen, is married to Stefania Zaccari, an Italian citizen. They met in New York when Stefania was there on vacation. When they decided they wanted to live together in the U.S., Allison could not sponsor Stefania for a visa because the Defense of Marriage Act (struck down in 2015) was still in place. The two women therefore moved to London, got married, and had two sons, Lucas and Massi. Allison was able to pass her citizenship to her children even though they were born abroad, but the U.S. State Department refused to recognize her marriage. It said Massi was Allison’s son because she had given birth to him, but denied that Lucas, who was carried by Stefania, was Allison’s son. It thus refused to recognize that Lucas was a citizen, and even told the couple that it was using a policy applicable solely to unwed mothers. Despite a letter from Immigration Equality and Sullivan & Cromwell detailing the family’s situation and the policies that apply, the State Department again refused to recognize Lucas’s citizenship, as I wrote last year.
Yesterday’s victory is thus a step forward, but not the end of the story. “This is a huge victory for Ethan Dvash-Banks and his family,” said Aaron C. Morris, Executive Director of Immigration Equality, co-counsel for the family. “Ethan will no longer be considered the undocumented twin of his brother Aiden. Yesterday’s ruling rightfully determined that Ethan has been a U.S. citizen since birth. While this ruling did not explicitly strike down the State Department’s policy, it is a strong indication that the Department should do so on its own. We will continue to fight until all same-sex couples have their relationships fully recognized.”
Watch a video about the Dvash-Banks family below.
