Trump's State Department is fighing marriage equality

In June of 2013, the United States Supreme Court invalidated the Defense of Marriage Act (DOMA).  There were a number of principles involved in the decision.  One was that the law mandated that the federal government refuse to consider same-sex marriages as having validity.  That went against a long-held precept that the institution of marriage was the province of the states and not the federal government.  Another was that DOMA, in allowing states to rule same-sex marriage illegal was in violation of the Equal Protection doctrine.

That should have been the end of it.  From that point forward, married persons should have been afforded all of the same rights, protections, privileges and responsibilities under federal law; without regard to whether or not they were a same-sex couple.  

But now the Trump Administration's State Department has refused to grant citizenship to one of two twin boys born to a same-sex married couple.  

Meet Elad Dvash-Banks, his husband Andrew and their twin boys, Ethan and Alden.  The twins were born by the same surrogate mother in September of 2016.  Elad is the biological father of Ethan while Andrew is the biological father of Alden.  That is where the State Department is raising an objection.

The consular official who told the couple that she could require the two fathers to submit to DNA testing to prove there is a biological connection between both children and Andrew.  This is based on a case, Parham v Clinton.  In that case, a lawsuit filed by a U.S. citizen and his Filipino wife was dismissed by the court system.  They had applied for citizenship for the couple's children and officials at the U.S. Embassy in the Philippines had required the couple to submit DNA information.  The lawsuit claimed this was a violation of their rights.

This is where we get into the difference between laws and regulations.  The law as written by Congress doesn't mention biology in this area.  It reads as follows:

(g)

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h)

a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

The "rule" that allows State Department personnel to require DNA testing in such instances is set forth in the Code of Federal Regulations.  The question is, are the regulations as presently promulgated current with the decision to overturn DOMA. 

The fact that Andrew is not the biological father of Ethan should not invalidate the rights of this couple to be able to obtain citizenship for both of the twins.  In the case of a same-sex married couple, if a child can be proven to be the biological child of EITHER of the parents, then citizenship should be conferred on that child as stated in the law.