Federal Judge Hears Second Round of Oral Arguments in Case of Two-Year-Old Daughter of Married Same-Sex Couple Treated as “Born Out of Wedlock”

A federal judge in Atlanta heard oral arguments today in a case brought by Immigration Equality, Lambda Legal, and pro bono counsel Morgan Lewis against the U.S. State Department for refusing to recognize the citizenship from birth of Simone Mize-Gregg, the two-year-old daughter of U.S. citizens, Derek Mize and Jonathan Gregg. The State Department’s policy treats the children of same-sex married couples as “born out of wedlock,” and then denies that they are citizens.

“It’s difficult to hear the government arguments about our daughter as though the concrete injuries we have endured as a family and continue to endure do not matter,” said Derek Mize and Jonathan Gregg. “The government wants to dismiss our case and set up our daughter for a lifetime of unfair treatment. Of course, we will do everything we can to prevent that, and keep fighting on our daughter’s behalf. We pray every day the court will do the right thing for Simone.”

Today’s oral arguments focused on a motion to dismiss by the federal government given the grant of legal permanent residency to Simone Mize-Gregg. The Court previously heard oral arguments in this case in May 2020, focusing on plaintiffs’ motion for partial summary judgment in the case arguing that the Department of State’s actions violated the text and structure of the Immigration and Nationality Act.

“As the court recognized in today’s arguments, the Department of State’s treatment of married same-sex couples, more generally, and of Derek, Jonny, and their daughter Simone, more specifically, is vexing,” said Omar Gonzalez-Pagan, Senior Attorney at Lambda Legal. “No family should have to face the fear and uncertainty of having their child’s citizenship status be in limbo. Supreme Court case law has made clear that the State Department cannot treat married same-sex couples and their children as second-class citizens. The Department of State’s actions in this case are unmoored from the law and the constitution.”

Today’s oral arguments also come after a federal judge in Maryland ruled on June 17th that Kessem Kiviti, daughter of same-sex married couple Roee and Adiel Kiviti, has been a U.S. citizen from birth. Kessem’s fathers are also both U.S. citizens, who were told by the State Department that their daughter was not a citizen because she was not biologically related to both of her parents. Immigration Equality, Lambda Legal, and pro bono counsel also represented the Kiviti family in their case against the U.S. State Department, which was filed in September 2019.

“The State Department’s position that children born during the course of a marriage are actually born ‘out of wedlock’ is absurd, in stark contrast to statutory law, and unconstitutional,” said Aaron C. Morris, Executive Director of Immigration Equality. "The State Department should change its discriminatory policy immediately. And, until it does, we will continue to fight for the dignity and protection of children like Simone.”

Derek Mize and Jonathan Gregg are a same-sex couple who married in New York in 2015. They had their daughter Simone via surrogacy in England in 2018, and both fathers are listed on her birth certificate. When they applied for recognition of her U.S. citizenship, the U.S. consulate in London rejected their application. Because only one of Simone’s fathers has a biological connection to her, the State Department is disregarding Jonathan and Derek’s marriage and is treating Simone as though she was born out of wedlock, a classification which requires more stringent requirements for recognition of her citizenship.

The Immigration and Nationality Act states that children of married U.S. citizens born abroad are U.S. citizens from birth so long as one of their parents has lived in the U.S. at some point, but the State Department routinely denies that right to same-sex couples and their marital children. While different-sex couples are automatically presumed to both be parents of their children, same-sex couples are subjected to invasive questioning about how they brought their child into their family, and because one parent is not a biological parent, they are treated as if they are not married, and their children are not recognized as citizens unless the biological parent can meet additional criteria.

The lawsuit Mize-Gregg v. Pompeo was filed July 29, 2019 in the U.S. District Court for the Northern District of Georgia.

Handling the case are Omar Gonzalez-Pagan, Karen Loewy, and Tara Borelli for Lambda Legal; Aaron C. Morris for Immigration Equality, and lawyers from the law firm Morgan, Lewis & Bockius LLP.