Category: News Feeds

Mary Trump’s book about her famous uncle Donald, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man,” (affiliate link) is slated for release by Simon & Schuster on July 28.

That leaves just five weeks for Charles Harder to bully, threaten, or cajole the author into pulping the “authoritative portrait of Donald J. Trump and the toxic family that made him, [by] Mary L. Trump, a trained clinical psychologist and Donald’s only niece, shines a bright light on the dark history of their family in order to explain how her uncle became the man who now threatens the world’s health, economic security, and social fabric.”

It’s a tall order, what with prior restraint being not a thing, but the Gawker-killer has gamely stepped up to the plate. The Daily Beast reports that the President has been obsessing over what to “do about the Mary thing,” and Harder has now filed for a TRO to halt publication in Queens Surrogate’s Court.

The putative plaintiff in the suit is Trump’s brother Robert, who claims to be “deeply disappointed” in his niece Mary’s decision to write the book in violation of 2001 non-disclosure agreement arising out of litigation over the will of Fred Trump, Sr., father to Donald, Maryanne, Robert, and Fred, Jr., who was Mary’s father.

“Her attempt to sensationalize and mischaracterize our family relationship after all of these years for her own financial gain is both a travesty and injustice to the memory of my late brother, Fred, and our beloved parents,” Robert Trump told the New York Times. “I and the rest of my entire family are so proud of my wonderful brother, the president, and feel that Mary’s actions are truly a disgrace.”

Whether this is a disgrace on par with terminating the health insurance of an infant with cerebral palsy because his parents object to being cut out of the will their (allegedly) demented grandfather drafted under the influence of the future president, Robert Trump declined to say. Presumably Donald Trump, who canceled the insurance for his sick nephew in 2001, would agree that writing a tell-all is worse.

“I can’t help that,” he said at the time. “It’s cold when someone sues my father. Had [my nephew Fred Trump, III] come to see me, things could very possibly have been much different for them.”

Harder is suing to enforce the non-disclosure provisions of the “Separation Agreement” which settled the litigation over Fred, Sr.’s estate. The general remedy for breach of contract is money damages, of course. Nevertheless, Harder is seeking to enjoin publication by Mary Trump, who was a party to the agreement, and Simon & Schuster, which was not. And neither seems inclined to roll over and go away in response to Harder’s bluster.

“President Trump and his siblings seek to suppress a book that will discuss matters of utmost public importance,” First Amendment lawyer Ted Boutros, who represents Mary Trump, told The Beast. “They are pursuing this unlawful prior restraint because they do not want the public to know the truth. The courts will not tolerate this brazen violation of the First Amendment.”

Simon & Schuster’s spokesman Adam Rothberg similarly predicted the suit would crash and burn, telling the Times, “As the plaintiff and his attorney well know, the courts take a dim view of prior restraint, and this attempt to block publication will meet the same fate as those that have gone before.”

He did not add that “the plaintiff and his attorney” know it well because just four days ago the U.S. District Court in DC tossed the government’s effort to block S&S’s publication of John Bolton’s book. But he didn’t have to.

And so the Trump administration ends (God willing!) as it began, with President Streisand Effect trying to use an NDA to squelch an embarrassing story, only to force it onto the front page. Mary Trump’s book is climbing the best seller list, just the way Stormy Daniels became a media superstar after Michael Cohen tried to shut her up.

Third verse, same as the first, little bit louder, and a little bit worse.

Trump Brings on Charles Harder to Block Niece’s Tell-All Book [Beast]
Trump Family Asks Court to Stop Publication of Tell-All by President’s Niece [NYT]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Earlier this week, thanks to the recently released National Law Journal 500 ranking, we found out which U.S.-centric Biglaw firms were the biggest of them all in terms of headcount. As a companion piece to the NLJ 500, today we’ve got the NLJ Women’s Scorecard, a ranking of the percentage of female attorneys and percentage of female partners at the largest 350 firms in the country.

For this ranking, both equity and nonequity partners were counted as partners, while nonpartner or “other” figures include special counsel, of counsel, and other staff attorneys. Temporary and contract attorneys aren’t included in the count. In the event of a tie, the higher rank is awarded to the firm with more female equity partners.

In all, 265 of the country’s 350 largest firms by head count reported data for the scorecard. Among the respondents, women accounted for 37.2% of the firms’ 143,454 lawyers in 2019, and 47.7% of 68,250 associates. …

Female representation at the partner level once again lagged in 2019: across the board, women comprised only 24.2% of all partnerships, out of 59,176 total partners, and only 20.5% of the equity partnership ranks.

Without further ado, here is the NLJ Women’s Scorecard Top 10 for 2020:

1. Berry Appleman & Leiden
2. Fragomen
3. Hanson Bridgett
4. Littler Mendelson
5. Constangy Brooks Smith & Prophete
6. FordHarrison
7. Wood Smith Henning & Berman
8. Manning Gross + Massenburg
9. Ogletree Deakins
10. Jackson Lewis

You may be wondering where the largest, namebrand Biglaw firms appear on this list. While the majority of the top 30 firms on the scorecard have a headcount of about 300 or less, there were some exceptions, with Fragomen, Littler, Ogletree, Jackson Lewis, Ropes & Gray, Wilson Elser, Shook Hardy, Gordon Rees, Lewis Brisbois, Baker McKenzie, and Quarles & Brady all making an appearance in the top 30. Firms like Ropes & Gray and Ogletree both made major strides, with Ropes cracking the Top 20 for the first time ever (the firm’s chair is a woman and four of its 10 board members are women) and Ogletree joining the Top 10 (the firm recently created a sponsorship program to support female nonequity partners advancing to the equity level).

Congratulations to all of the firms that succeeded in boosting their ranks in this year’s Women’s Scorecard by placing women in leadership roles and fostering a pipeline of female and diverse attorneys.

You can check out the rest of the rankings here.

The NLJ 500: Our 2020 Survey of the Nation’s Largest Law Firms [National Law Journal]
The NLJ 500: The Women in Law Scorecard 2020 [National Law Journal]
The NLJ 500: Where Are Women Winning? [National Law Journal]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

There will be a Major League Baseball regular season in 2020, it will be shortened to 60 games, and it will come with numerous new regulations based on concerns related to coronavirus. Expect new rules related to health and safety that appear to bear a true intent to shield participants from risk related to COVID-19 and others that seem to have little-to-no connection to the virus.

Players will be immediately tested for COVID-19 upon reporting to training camp, which will begin on July 1. They, along with coaches and support staff, will thereafter be tested for the virus every other day during training camp, the regular season, and any postseason play. Individuals who test positive must be quarantined and will not be able to return to normal activities until subsequently testing negative on two consecutive occasions. Additionally, players will have their temperatures taken at a minimum of twice per day.

The aforementioned testing policy makes perfect sense. What is harder to reconcile is a new rule that requires a designated hitter (DH) to be used by every team in both the National League and American League. While a DH has been mandated for use by all American League teams, pitchers have been required to go up to bat in the National League unless a pinch hitter is used, which would then require the pitcher to be substituted for a reliever or closer. MLB does not provide an explanation, but states that the National League will be required to use a DH instead of a pitcher on offense as part of the league’s health and safety protocols.

Perhaps the most interesting new rule is one implemented with the intention to shorten the length of extra-inning games. Instead of starting extra-innings as any other inning would begin, each half-inning will start with a runner on second base. The runner will be the batter who made the final out in the prior inning. This is less of a coronavirus-related rule and instead a rule intended to reduce stress on the players who will be obligated to play a condensed schedule with less time off.

I find the second most interesting new regulation one that actually is concerning COVID-19. MLB team personnel and players who are not likely to participate in a game will not be sitting among their teammates on the bench or in the bullpen. Instead, the league is requiring that such individuals either sit in the stands (which could provide some entertainment value) or in an area designated by the club, as long as the club ensures that the individuals are sitting at least six feet apart.

Setting aside the oddity of playing games in venues without fans or with significantly reduced capacities, expect the atmosphere of game play to change in other ways as well. There will be no spitting allowed nor chewing of tobacco. Furthermore, high-fives, fist bumps, and hugs are totally off limits. I personally cannot wait to see the first player fined for a hug.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Because I am a reasonably aware individual, of course I know that racism exists everywhere, even in the so-called hallowed halls of Harvard Law School. I know that, but still somehow seeing the actual experiences of black students at the law school laid out in a devastatingly simple crimson and white checkerboard is powerful.

For those that may not have heard about it, I am talking about the new Instagram account @blackatharvardlaw. Students are able to anonymously share their stories of racism at the venerable institution. And these stories come from all sides at the law school. Professors underestimating black law students, fellow students assuming black students are the help, comparing being “shy” in one instance or being blonde in another to the experiences of black people. It’s a cavalcade of  awful.

So, yeah, you should definitely read the selection of posts below, but everyone in the legal profession really should read everything on the account.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Let’s face it: 2020’s been a little rough. But tough times, like necessity, can be the mother of invention, and law firms can rise from the ashes from the lessons of this difficult year.
In this webinar, we will understand the primary drivers of profitability and how to drive more revenue through automation.

Join Bob Ambrogi, founder of LawSites Blog, and Rocket Matter’s CEO Larry Port for a webinar on July 9th at 1 p.m. ET/10 a.m. PT who will dive into ways to streamline your business.

Key Objectives:

1. Explore techniques to predict and improve profitability for law firms.
2. See tech demonstrations that make routine tasks, including getting paid, automated.
3. See how hourly billing can move to alternative fee arrangements and drive more revenue with technology.

By filling out the form you’re you are opting in to receive communication from Above the Law and its partners.

With Donald Trump publicly hyping his upcoming new list of SCOTUS papabile, DC Circuit judge Neomi Rao could not be more jazzed to show off her unswerving loyalty to the administration that installed her on the Supreme Court farm team bench. So when the Flynn case landed in her lap, complete with an opinion from Debevoise partner and former federal judge John Gleeson laying out rampant DOJ corruption, she got right to work figuring out how to give the White House the result it wanted and she was prepared to play doctrinal roulette to create a truly epic Frankenopinion. Indeed, almost half of the opinion consists of glib responses to the dissent in an effort to replace laying out a sound affirmative opinion by piling aspersions on the dissent.

Judicial restraint? Textualism? Original public understanding? You’d think any one of the Holy Trinity of conservative doctrines would make an appearance, but they all get shunted aside in the pursuit of serving the political aims of the White House. The logical contortions and hand-waving kicks off when she’s laying out the standards for a writ of mandamus and just compile upon themselves from there.

For this court to grant a writ of mandamus, “the right to relief must be ‘clear and indisputable’; there must be ‘no other adequate means to attain the relief’; and ‘the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’”

Judge Sullivan has not yet ruled on this issue, so how are there no other adequate means to attain relief? Doesn’t the court need to do something first? According to Rao, “the district court has acted here. It has ordered briefing and scheduled a hearing.” Holy hell! That’s the standard now? Briefing?

“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power”… because of briefs. Her concern is that “[t]he contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority,” ignoring that Rule 48(a) absolutely requires the government to provide the court with a satisfactory justification for its decision.

Here’s the problem with this, if Rao (joined by Judge Karen Henderson) is correct that the DOJ is dropping the Flynn case because of “newly discovered evidence of misconduct by the Federal Bureau of Investigation” then they can go ahead and use their briefs to outline the newly discovered evidence of misconduct by the Federal Bureau of Investigation. That does not expose the DOJ to any disclosures that they haven’t already volunteered. If Judge Sullivan doesn’t accept that, then they can appeal and be… exactly where they are right now!

But that’s the rub, they don’t have anything else to say. If the DOJ filed a brief that credibly asserted any of the aluminum hat stuff being passed around on Twitter about entrapment and Obama’s interference, Judge Sullivan would grant them leave. The majority reasoning here only makes sense in the world where the DOJ is lying about its reasons for dropping the case. Rao’s opinion rests on the presumption that the FBI misconduct that the DOJ is already asserting isn’t substantiated or completely pretextual because otherwise the Executive wouldn’t have to reveal jack in these scheduled briefs.

In a sense, that is an irreparable harm to the DOJ — if they had to actually lay out their casual claims that the FBI railroaded Flynn in a brief, it would expose the corruption. Still, that’s not the kind of irreparable harm these things are meant to prevent.

Although Rule 48 requires “leave of court” before dismissing charges, “decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion.”

So much for textualism! “Leave of court” now joins “well-regulated militia” on the Island of Lost Phrases as language the drafters inserted by PURE ACCIDENT… no further inquiry required! Rao cites an opinion about judges not having the authority to tell the DOJ that a deferred prosecution agreement isn’t good enough, which feels distinguishable from the government completely dropping a case where the defendant pleaded guilty twice to all the predicate acts. Alas, Rao has little time to address such concerns, waving them away in a footnote that misrepresents the argument as if Judge Sullivan contends that a different standard applies as opposed to the actual claim that the “satisfactory justification” standard remains the same, but when the government already has its conviction it’s a lot harder to swallow a justification that might have made sense earlier:

“Rule 48(a) continues to apply even after conviction and sentencing while the case is on direct appeal, and the same standard applies to a government request for dismissal at that stage as applies if the request came prior to trial.” 3B WRIGHT & MILLER, FED. PRAC. & PROC. CRIM. § 802 (4th ed. 2013).

Wright & Miller? I’m pretty sure Arthur Miller wouldn’t cite Wright & Miller as the lone authority in an appellate opinion. Legal Writing professors the world over are getting out their red pens. Judge Gleeson’s report actually spent a good deal of time discussing the original public understanding of Rule 48(a), which was drafted in the context of a backlash against prosecutors dismissing charges as corrupt political favors. Don’t worry, originalism doesn’t make it into this considered conservative opinion either!

Instead she asserts that the Department of Justice deserves the presumption that it’s acting ethically. Which is true! But what about the weight of the evidence rebutting that presumption?

On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled.

Putting aside the cherry-picking of the evidence laid out, Rao’s position is “despite the clear irregularities, there’s no reason to suggest this is irregular.” Judge Wilkins’s dissent suggests that this may be a glib oversight, so Rao reiterates that the presumption of regularity is only overcome by “clear evidence to the contrary.” Toward that end, she also declared that the Department of Justice should not be forced to disclose any evidence. We’ll call this new Federalist Society doctrine “Catch-45” after the current president.

But Rao has now penned her Supreme Court resume. It’s not exactly Cardozo’s Palsgraf, but compared to Neil Gorsuch’s offering at least she didn’t suggest someone should die protecting a truck so… progress?

(Check out the opinion on the next page.)

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Do lawyers get worse at their jobs as they age? There’s not a lot of good data about this in the legal space (the benefits of self-regulation), but we can learn from studies of doctors and cab drivers. In episode 3 of the Lawyer Forward podcast, Mike Whelan explores how creatively solving complex problems increases our cognitive abilities. Mike concludes that lawyers will need to change the way we practice if we want to preserve our minds and deliver for clients.

(In the episode, Mike referenced Malcolm Gladwell’s book that incorporates Anders Ericsson’s work. He said that the book is called Tipping Point. It was actually Outliers. You can find both books here.)

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

It’s hard enough to study for the bar exam, to make sure that you’re prepared as best you can be and to keep the stress at an acceptable level. But when you don’t know when the bar exam will be held, it’s enough to freak out bar takers because of the uncertainty. Lawyers live by deadlines, be they statutes of limitations, motion deadlines, trial dates, or anything in between. To have the bar exam date as a moving target, as it is in California right now, is unacceptable. Just as the courts tell attorneys that a trial date is “firm,” so should be the date for a bar exam. It’s only fair to the thousands of both first-time takers and repeaters.

In the latest iteration of “guess the date for the bar exam,” the California Supreme Court wrote a letter to the State Bar earlier this month. The letter said that now the bar exam could be held in early October, rather than the September dates previously considered. Why? The National Committee of Bar Examiners, of which the MBE is an essential part of the exam, has announced that there will be an “on-line deployable” version of the MBE on October 6.

California’s bar exam “cut score,” the second highest in the nation behind Delaware, has been a thorn in the side of law students, law professors, and deans for years. Now, the California Assembly Judiciary Committee has written to the state Supreme Court, urging it to rethink and reduce the cut score required for bar passage. The letter points out that racial minorities have been disadvantaged by the high cut score, and if the goal is to have lawyers in the state look like their clients, the bar is failing to achieve that goal.

While courts provide all manner of self-help tools, the Committee argues that such does not substitute for competent representation, especially in the family law courts where at least 70 percent of the litigants are unrepresented. That lack of representation deprives the parties of effective counsel and burdens the courts and opposing counsel, often making matters more arduous and drawn out than they need to be or should be.

The Committee suggests the cut score be reduced to 1388, even if only on an interim basis. Given the uncertainty about when (September? October?) the July bar will occur, the Committee also requested the 2020 class be permitted to practice in the interim “with appropriate oversight.” What would be “appropriate oversight?” What would be the standards for that? Who would be responsible for that oversight? Would “diploma privilege” fly in California?

Last month, the State Bar announced that it and the Supreme Court have formed a “blue ribbon” commission to look at the bar exam, its future, and the cut score. Its composition is to be determined, but based on my many years of looking at commissions and occasionally being on them (or task forces, whatever the term du jour might be), it’s going to take a while to arrive at recommendations, including whether California should adopt the UBE.

The future of the bar exam is not something that can be decided overnight, but in the meantime, as the Assembly Judiciary Committee pointed out in no uncertain terms, the bar exam as presently scored has an adverse impact on minorities, with black law students bringing up the rear over the past decade as admittees.

Other states are trying to figure out what to do about the July bar exam. Maryland is moving the summer bar to online.

Michigan and Indiana are also moving to online for the summer bar.

Other states are going their own ways for this year’s bar exam.

Already accepted in 36 states, now is the time for the rest of the states (hello, California) to drop their possessiveness about particular bar exams and accept the results of the Uniform Bar Exam, and to allow multijurisdictional practice without having to sit for that particular state’s bar or attorney’s exam. Given the nature of legal practice today and the presence of remote lawyering, making attorneys sit for each state’s bar exam is nonsense.

The pandemic has hastened the demise of practicing law within the four corners of the state. Should the unauthorized practice have relevance any more to lawyers who tiptoe (or not) across state lines? And what about reciprocity?

Yes, I am well aware that there are way too many lawyers, but only in certain locations and certain practices, but not in “legal deserts” so to speak, where just like food deserts, the need is great, but the supply is not. How do we meet that need? The status quo doesn’t work anymore, not that it has for a long time. As procrastinators (don’t tell me you’re not when you wait until the very last minute to file a brief, claiming you’re perfecting it — Oh, please! — we have preferred to kick the can down the road. But the can, which is now the size of a boulder, is in front of us, and the road has ended.

Those of us who have had bar exam horror stories, and I would guess that’s just about all of us now need to STFU and quit whining about our purported dreadful experiences. The class of 2020 has it all over us and not in a good way. This is a situation not of their making, and yet they’re the ones who must endure it.

A correction aka whoops: an alert reader pointed out that in last week’s column, I placed Judge Amalya Kearse on the Sixth Circuit, rather than the Second. Thanks for the correction and my apologies to Judge Kearse.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

The past several days have brought us a number of statements from law firms and law schools responding to the national outcry proximately sparked by the killing of George Floyd, though so many names have come before Floyd. Some ring hollow and others were just plain botched.

For a guide to preparing a powerful and supportive statement, check out the one released by the Rutgers Law faculty last night.

In a recent Above the Law article about law firm statements specifically, we outlined some key components of a positive statement, “like a firm’s unwillingness to come out and say Black Lives Matter” or “mention the names of George Floyd, Breonna Taylor, Armaud Arbery, or any other victim of racial violence.” The Rutgers faculty statement takes these points, that so many firms and law schools struggled to reach, as the starting point before taking an honest look at the role of the legal profession in enabling white supremacy.

The faculty of Rutgers Law School joins with other communities around the world, including our own student community, to express our outrage and grief over the public execution of George Floyd. We also join in solidarity with those in the United States and elsewhere who stand in protest against a widespread pattern of state-sanctioned violence directed against Black people and other oppressed communities.

Black lives matter.

The recent killings of Layleen Polanco, Rayshard Brooks, Sandra Bland, Aiyana Stanley-Jones, Trayvon Martin, Sean Bell, Philando Castile, Tanisha Anderson, Atatiana Jefferson, Charleena Lyles, George Floyd, Breonna Taylor, Maurice Gordon, Ahmaud Arbery, Eric Garner, Michael Brown Jr., Tamir Rice, Walter Scott, Tony McDade, and many others have roots in a history of white supremacy. America’s criminal justice system traces back to slave patrols, Reconstruction, the development of Jim and Jane Crow, and the convict leasing system, whereby Black people (including children, adults, and the elderly) were arrested for loitering and then leased out to be worked to death. That history has not yet been overcome.

As a public school located in two poor communities, both Rutgers Law campuses have long histories of taking concrete action to promote racial justice from curricular reforms to building robust clinical programs. But where most statements might rest on the institution’s laurels, the Rutgers statement reflects on its own shortcomings:

We both acknowledge the historical commitment of our faculty, staff, and students to this racial justice work and deplore the unequal burden Black and Brown members of our Law School community currently bear in carrying it out. We also recognize and acknowledge that many non- Black faculty have benefited and continue to benefit from racialized structures that disadvantage Black people and other communities of color, and that even when striving to be anti-racist we have at times been complacent, and to that extent complicit, in the survival of systems of racial injustice.

And rather than leave that general statement hanging, the statement outlines a non-exhaustive list of specific actions the faculty commits to undertaking from internal steps reviewing curriculum and clinical offerings to a commitment to scrutinize the anti-discriminatory efforts of prospective employers and pledging to engage more community and marginalized group organizations.

Fundamentally, everyone’s contribution to the struggle should be tailored to what they best bring to the fight. For academics working at a public institution, that’s research and scholarship, and the statement zeroes in on this, committing to be a safe and supportive place for independent academic inquiry for specific legal policy changes, highlighting police accountability and transparency, “broken windows” procedures, for-profit prisons, and family separation as just a few of the legal matters where they can help.

It’s such a contrast to the Michigan Law statement, where a public institution suggested that it had little business commenting on matters outside the Quad — the Rutgers faculty proclaims without reservation that fighting racism is absolutely a professional concern of the law at all times and in all places.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Over the past few years, the United States government has denied citizenship to multiple children of LGBTQ+ married couples born abroad, arguing that the children fall under a portion of the immigration code that applies to unwed couples. The results have been anomalous, to say the least, and include the government granting one twin (but not the other) citizenship, as well as children born of *two* United States citizen-parents being denied citizenship. Last week, a lawsuit challenging those decisions achieved a major win. The federal district court in Maryland issued an opinion squarely on the side of the LGBTQ+ parents and their child.

Good Facts Sometimes Make Good Law

Roee and Adiel Kiviti are a same-sex male couple. They met in 2011 and married in 2013. Roee was born in Israel but raised from the age of 4 in the United States. He was naturalized as a United States citizen in 2001. Roee and Adiel met in Israel, but they later moved to the United States, and Adiel gained United States citizenship in 2019.

Like many couples, the two wanted to raise a family. As a gay couple, they pursued the route of surrogacy. Their two children were born in Canada (known for its actual affordable healthcare) in 2016 and 2019, respectively. With each child, a court in Canada issued an order that Roee and Adiel were legal parents of the child. In 2016, when their son was born, and they applied for his passport, the passport was issued promptly, and without the Kivitis being asked who was genetically related to the child.

In 2019, with the birth of their daughter, the passport application process did not go as smoothly. Their daughter was, to the Kivitis’ surprise, denied citizenship. The State Department stated that she fell under the “unwed” parents section of the immigration code that has more onerous residency requirements that Adiel, the genetic parent, did not meet. And Roee, for immigration purposes, was not acknowledged by the United States government as a parent to their child.

With the help of Immigration Equality, Lambda Legal, and the pro bono counsel Morgan Lewis, the parents brought a lawsuit against the U.S. government.

Win #1: Plain Language And A Little Judicial Shade

The State Department’s justification for the denial of citizenship was that the child fell into the section of the immigration code of “unwed” parents. How can that be, since her parents were, you know, wed? The government argued that the “wed” section’s language of a child “born… of parents” means that the child must be genetically related to *both* parents to be “born of” them. The State Department further argued that it does not matter if the parents are LGBTQ+; if the child is not genetically related to both parents of the married couple, the child’s citizenship must be analyzed under the “unwed” section. And that section has a longer residency requirement to confer citizenship on a child.

The Kivitis argued that the plain language of the statute does not require a genetic connection between both parents and the child. Further, to read a biological connection requirement into the statute would ignore a long history of common law cases that recognize a “marital presumption” — acknowledging the spouse of a parent as the child’s other parent, regardless of biological connection.

The court fully agreed with the Kivitis, throwing a bit of shade at the State Department in the process. The court describes how that State Department cited no evidence that their specific statutory interpretation was known to Congress other than “an unsupported and uncited statement in the current version of the FAM” (the State Department’s own manual that is written internally without public comment). The FAM states that the “blood relationship” interpretation dates back to 1790. The court dismissed this argument roundly, noting that it was highly unlikely that in 1790 they were doing blood tests to ensure a genetic relationship between parent and child.

The happy result was a ruling for plaintiffs that the Kivitis’ daughter is, in fact, a Unites States citizen from birth, per the plain language of the immigration code. However, the court did not stop there.

Win #2: Constitutional Avoidance

The plaintiffs argued that if the language of the statue were to be found ambiguous, the court should rule in favor the plaintiffs’ interpretation in order to avoid the constitutional problems that would arise from the State Department’s interpretation. Generally, courts go to great lengths to interpret or narrow statutes in order to avoid what would otherwise be a finding of unconstitutionality.

The State Department argued that its “biological connection” policy was not targeting LGBTQ+ couples, and applied to all couples. However, the State Department conceded that immigration agents were not required to inquire as to whether applicants for citizenship had a biological connection to their parents. Instead, it was in each agent’s discretion to choose whether to require applicants to provide information relating to a genetic connection between the parents and the child.

Of course, an agent was most likely to raise the question when same-sex couples were applying, since that would be a tip-off that one parent might not have a genetic relationship to the child. Indeed, the State Department acknowledged that a same-sex male couple could never qualify as a “wed” couple under the government’s interpretation. This sort of treatment was enough to raise doubts regarding the constitutionality of the State Department’s interpretation, particularly under two Supreme Court cases establishing a right to same-sex marriage and the “constellation” of benefits accompanying marriage.

The Court didn’t need to rely on the avoidance doctrine, since it had already ruled on the basis of the plain text. But the secondary reasoning makes this decision especially difficult to appeal if it goes to the Fourth Circuit Court of Appeals, since the District Court ruled on two separate grounds for the plaintiffs.

In short, the ruling was a slam dunk for the Kivitis, and a promising sign for same-sex parents in the other open cases against the State Department. It is also great news for not only future LGBTQ+ parents but all couples who turn to the assistance of reproductive technology to achieve their families.

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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.