Loyal readers know that this column has closely followed the numerous shocking immigration cases in which children of same-sex American couples were denied US citizenship. For at least four families who have filed lawsuits against the government – represented by the nonprofit legal group Immigration Equality as well as Lambda Legal and other pro bono lawyers – the government has insisted on applying the section of immigration law applicable to “unmarried” parents, though the parents are legally married. What was the difference between these couples and others who had no problems? Except that these couples were gay and used assisted reproductive technology.
In each case, the government argued that the “married” section of the Immigration Act only applies if both parents are genetically related to the child, which is difficult for same-sex parents with current technology. And of course, this underlying biological fact leads immigration officials to scrutinize gay couples more closely than heterosexual couples, which means that a heterosexual couple who uses assisted reproductive technology to grow their family often doesn’t face the same problems as a same-sex one Pair .
In good news, couples discriminated against based on government interpretation have won one victory after another in US courts. First was the Dvash-Banks case, in which two fathers won a victory for one of their twin sons, and then the verdict was recently upheld on appeal before the Ninth Circuit. Kivitis also won in Maryland, and the Gregg-Mize family won impressively in the Deep South, where a federal judge appointed by President Donald Trump in Georgia believed the government’s interpretation of immigration law raised serious constitutional concerns. Given that the government initially appealed against each of these losses, it looked like the fight would continue. But that changed last week.
In doubly good news, the government decided not to appeal Gregg-Mize’s decision and dropped Kiviti’s appeal. Double yay!
How good is the good news?
It is not clear how far the possible reversal of the government’s application of immigration law to same-sex couples will go. The government has yet to appeal to the US Supreme Court on the Nv circuit level loss in the Dvash banks. Meanwhile, a similar case with the Zaccari-Blixt family is still under trial and it appears the government is trying to bring the same issue there. However, let’s hope last week’s news signaled an impending full turnaround – no more appeals for Dvash banks or similar families, a way of appreciation for Zaccari-Blixt and future children of same-sex married couples with U.S. citizens who are fair and direct Section “Mi” of the Immigration Act are under the influence.
Despite the good news, there are at least three red flags for LGBTQ + families. First, just last month, Judges Clarence Thomas and Samuel Alito voted in favor of a case in which the US Supreme Court filed a motion to hear an appeal against the case of Kim Davis – the Kentucky clerk who refused to permit same-sex couples to marry – to the refusal of certiorari. At the same time, they used the opportunity to describe Obergefell’s decision in 2015, which granted same-sex couples the right to marry across the country, as “ruinous” for religious freedom. They claimed that the Obergefell decision “only created one problem [the Supreme Court] can fix. “Enter the ominous music.
The second flag is the newest Supreme Court Justice Amy Coney Barrett. While Justice Barrett has not yet had a chance to rule directly on these issues, there is evidence that her views – including her prior support for an anti-IVF organization before she was a judge – are unlikely to result in court rulings in favor of EU LGBTQ + Community.
Flag three is related to the second and contains the pending decision of the US Supreme Court in the Fulton v Philadelphia case. The case is to be heard orally on November 4th. In this case, Catholic Social Services claims it has a constitutional right not to be required to comply with state anti-discrimination laws regarding LGBGQ + couples. The City of Philadelphia, on the other hand, argues that it is perfectly constitutional to require its contractors to comply with non-discrimination laws, regardless of whether the contractors are religious organizations or not.
If the Court rules in favor of Catholic Social Services – and especially if they come to such a decision by reading the Constitution to seek sweeping exemptions from anti-discrimination laws – it could have dire ramifications for LGBTQ + people in other contexts, both within and within within outside the context of family education.
Where are LGBTQ + people now? Well, obviously with a series of historical victories justifying equal rights and benefits, but with an uncertain horizon ahead of us. And if there’s one lesson we’ve learned in the last generation, it is always to fight the next battle for equality.
Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].