The U.S. State Department seems to be having a contest with the Department of Health and Human Services over which can be more awful to the LGBTQ community. A February federal court decision had ruled that the two-year-old 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. The State Department now wants to overturn that ruling.
U.S. citizen Andrew Dvash-Banks and his husband, Israeli citizen Elad Dvash-Banks, had 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 (DOMA). Instead, they married and settled in Canada, where they had twin sons through surrogacy. After the U.S. Supreme Court in its Windsor decision repealed key parts of DOMA, they relocated to California in July 2017 in order to be near Andrew’s family.
When they sought recognition of the twins’ U.S. citizenship, however, 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. Aiden was conceived with the Andrew’s sperm and his twin brother Ethan with Elad’s sperm, however, so the State Department said Aiden is a U.S. citizen while Ethan is not. Ethan thus had to enter the U.S. on a tourist visa, which expired in December 2017, putting him at risk of deportation.
The family therefore filed a lawsuit against the State Department, and in February, Judge John F. Walter of the U.S. District Court for the Central District of California ruled in their favor, recognizing Ethan’s birthright citizenship.
Yesterday, the State Department appealed that decision to the Ninth Circuit Court of Appeals, refusing to recognize Ethan’s citizenship (and by extension, his parents’ marriage). Aaron C. Morris, executive director of Immigration Equality and co-counsel for the family, put it bluntly:
Once again, the State Department is refusing to recognize Andrew and Elad’s rights as a married couple. The government’s decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory, and morally reprehensible. This is settled law in the Ninth Circuit, which has already established that citizenship may pass from a married parent to a child regardless of whether or not they have a biological relationship.
The Dvash-Banks’ are not the only family suffering from the State Department’s position. Allison Blixt, a U.S. citizen, her spouse Stefania Zaccari, an Italian citizen, and their two sons, are also still fighting for their right to be legally recognized as a family. (See more about them in my February piece.)
The Dvash-Banks are not giving up, however. They said in a statement, “We’re outraged that the State Department is so intent on harming our family and the LGBTQ community. The fight is not over, and we will not rest until our family is treated fairly and equally. Nothing can tear us apart. The four of us are unbreakable.”