Published: Tue, June 13, 2017
Local | By Adrian Hale

Justices strike down gender differences in citizenship law

Justices strike down gender differences in citizenship law

The U.S. Supreme Court on Monday struck down a law that makes it easier, in some cases, for children born overseas to an unwed U.S. citizen mother to acquire citizenship at birth than children born to an unwed U.S. citizen father.

Under current law, children of American mothers and non-U.S. fathers could become citizens as long as their mother lived in the US for one year, but in the reverse scenario, the American father must have lived in the States for at least 10 years, five of which past age 14.

The court ruled, in an opinion (PDF) by Justice Ruth Bader Ginsburg, that the law violates the equal protection clause.

Along the way, Ginsburg cited a long list of cases she had a hand in - either as a lawyer arguing before the court or as a justice - striking laws that treated men and women differently in, for instance, receiving Social Security survivor benefits or being admitted to the Virginia Military Academy.

Justice Ruth Bader Ginsburg, who dedicated her career to the issue of gender discrimination before taking the bench, wrote the decision. But because his parents were not married and his father was the US citizen, Morales-Santana was entitled to USA citizenship only if his father had lived in the United States for at least 10 years before his birth, with five of those years coming after the age of 14. Under such scrutiny, she went on, the different treatment of mothers and fathers in the citizenship laws at issue can not stand.

A federal appeals court struck down the law and said the one-year period must apply to both unwed fathers and mothers.

In Court, the Justice Department argued that court precedent has "made clear that mothers and fathers are not typically similarly situated with respect to their legal status concerning the child at the moment of birth". For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: "The alien father, who might transmit foreign ways, was presumptively out of the picture". Ginsburg was joined by Chief Justice John Roberts, and Justice Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. After oral argument, the justices were deadlocked 4-4, which left the lower court's ruling in the government's favor in place.

Congress can not legislate based on "once habitual, but now untenable" stereotypes about male domination, wrote Justice Ruth Bader Ginsburg, in Sessions v. Morales-Santana. He claimed he was a USA citizen because of his father's citizenship. "Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children".

The court was equally unimpressed with the government's second justification, which centered on a desire to ensure that a child born outside the United States to an unmarried US -citizen parent would not be "stateless" - that is, lacking any citizenship at all.

"Extension here would render the special treatment Congress prescribed [for unwed US-citizen mothers] the general rule, no longer an exception", Ginsburg wrote.

Justices Clarence Thomas and Samuel A. Alito Jr. did not join Ginsburg's reasoning, and agreed only in overturning the 2nd Circuit's relief to Morales-Santana.

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