Family Law

If Your Dads Are Gay, You Might Not Qualify To Be President

While it may seem like a trivial issue, natural born citizenship comes up surprisingly often among candidates for the presidency.

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(Image via Getty)

In federal court, plaintiffs must, of course, always have “standing” to pursue their claims. For the few nonlawyer readers, that means that a plaintiff has to show that they are suffering an injury that stems from the conduct of the defendant. Seems simple enough. But in some cases, courts will dismiss what would otherwise be viable claims under this doctrine. In one famous case called Lujan v. The National Wildlife Foundation, the Supreme Court dismissed the claims of environmentalists who argued that they would suffer damage from a rule that would hurt endangered animals outside the United States, since the environmentalists hadn’t actually completed their travel arrangements to visit these exact areas. No tickets, no injury, no standing.

The same issue of standing is arising in a case that I’ve mentioned in this column previously. Despite multiple recent losses in federal court, the United States government continues to insist on its interpretation of immigration law that makes it harder for children born abroad to U.S. citizen same-sex male couple parents to qualify for citizenship at birth. Citizenship at birth, or being a “natural born citizen” per Article Two of the Constitution, is necessary to qualify to be president of the United States.

Being A “Natural Born” Citizen Is A Surprisingly Big Deal.

While that may seem like a trivial issue, it comes up surprisingly often among candidates for the presidency. Everyone, of course, remembers the challenges to President Barak Obama’s eligibility for presidency based on the wild accusation that he was born in Kenya, and thus not a “natural born” citizen. It was also an issue with John McCain — born in Panama while under U.S. control, as well as Ted Cruz — born in Canada to a U.S. citizen mother. Now, the fate of 2-year-old S.M.-G.’s future presidency is at stake. Among other issues.

As a refresher, S.M.-G. is the daughter of Derek Mize and Jonathan Gregg, a married couple, and both U.S. citizens. S.M.-G. was born through surrogacy in the United Kingdom. The proud new parents were shocked when their daughter was denied U.S. citizenship at birth because the U.S. government considers their daughter to be born “out of wedlock.” But now, due to a standing challenge, we may never get to hear the court’s thoughts on that interpretation or the substantive arguments in the case.

Gregg and Mize initiated their challenge to their daughter’s denial of citizenship back in July 2019. Since then, they have lived in fear that their daughter could be deported for being out of status after her visitor visa expired. For their family’s protection, while this case was pending, they applied for S.M.-G. to receive legal permanent resident status. Despite the government-published minimum wait times for such applications being over 10 months, S.M.-G.’s application was shockingly approved, in the midst of a pandemic, in 4 months! Yay! Right?

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The U.S. government then filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the question of S.M.-G.’s citizenship was now moot. In addition to receiving the legal permanent resident status, she had also qualified for citizenship under a different section of the immigration code. But that isn’t citizenship at birth!

What’s The Difference Between Naturalization And Citizenship At Birth?

Does the gap in rights between citizenship at birth and another form of citizenship constitute enough of a difference, and cause sufficient harm to S.M.-G., to maintain standing? S.M.-G and her dads argue that yes, aside from the wrongs of what their family has endured and the accompanying stigma, that gap in rights is harm enough to merit standing. Among the differences between citizenship at birth and naturalization are:  the ability of the U.S. government to take away the citizenship of a naturalized citizen (while it can never strip a citizen from birth of their U.S. citizenship); the ability to obtain national security clearances and obtain certain forms of governmental employment; and the ability to access some governmental benefits (if proposed legislative changes happen). And, of course, the ability to run for president is denied to those who receive citizenship at a time other than birth.

Pure Speculation.

The defendants argue that these are not sufficient to maintain standing, because S.M.-G. is not alleging that she is currently suffering, or will imminently suffer any concrete injury based on the difference, and that any future injury is purely speculative at this point. Sure, S.M.-G is only two, and has not recently applied for any high-security government jobs. And she may not have concrete plans to run for president, yet. And the internet tells me there is only a 1 in 200 million chance of any particular American becoming president anyway.

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But it feels like a bigger deal. Just having the right and the ability to run for president of our country, no matter how small the odds are of ever actually becoming president, feels significant. And something a court should let you fight for. Even when you are only two.

I, for one, am hoping the case is heard on its merits. And when someone asks S.M.-G. what she wants to be one day, I hope she can answer, without reservation, president. I’ll have my “S.M.-G for President 2054” lawn sign ready. And then, maybe, once she’s president, she can save the endangered animals.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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