Biological Citizenship and the Children of Same-Sex Marriage

48 Pages Posted: 12 Mar 2018 Last revised: 29 Jan 2019

See all articles by Michael J. Higdon

Michael J. Higdon

University of Tennessee College of Law

Date Written: March 11, 2018

Abstract

In 2015, the Supreme Court ruled that states could not, consistent with the Due Process Clause, deny same-sex couples the right to marry. To allow otherwise, said the Court, would “harm and humiliate the children of same sex marriage.” Thus, it was hoped that marriage equality would provide greater security for the children of same-sex couples. And the need for such protections are increasingly important given that, with advances in assisted reproduction techniques, it is easier than ever for same-sex couples to become parents. Indeed, when it comes to procreation, same-sex marriages and opposite-sex marriages are becoming much more alike. But there remains an obvious difference between the two. Namely, same-sex couples are unable to procreate without the assistance of a third-party, meaning that although both parents in a same-sex marriage may qualify as legal parents, only one (at most) will qualify as a biological parent. But from a constitutional perspective, should that distinction matter?

The Supreme Court, in both Obergefell and its recent decision in Pavan v. Smith has indicated that, when it comes to the governmental benefits associated with marriage, the answer is “no.” Nonetheless, within the realm of immigration law, the State Department is using the absence of biological ties against the children of same-sex marriage, and on that basis, denying them United States citizenship. Although nothing in the Immigration and Naturalization Act requires that citizens, in order to transmit citizenship, possess a biological relationship with their children born abroad, the State Department has begun denying citizenship petitions on behalf of children from same-sex couples simply because the citizen parent, despite being the child’s legal parent, is not the biological parent. This Article argues that the State Department’s approach is not only unreasonable and, thus, not entitled to Chevron deference, but more importantly, is an unconstitutional infringement of both the right to marry and the right to parent, as those rights have developed by the Supreme Court. In sum, the State Department’s practice provides a poignant example of both the ongoing discrimination and the challenging questions that remain, post-Obergefell, in the quest for true marriage equality.

Keywords: Obergefell, Marriage Equality, Same-Sex Parent

Suggested Citation

Higdon, Michael J., Biological Citizenship and the Children of Same-Sex Marriage (March 11, 2018). 87 George Washington Law Review 124 (2019); University of Tennessee Legal Studies Research Paper No. 346. Available at SSRN: https://ssrn.com/abstract=3138270 or http://dx.doi.org/10.2139/ssrn.3138270

Michael J. Higdon (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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