Citizenship Rule Favoring One Gender Is Unconstitutional

In Sessions v. Morales-Santana, 582 U. S. ____ (2017), the U.S. Supreme Court ruled that a citizenship rule favoring unwed mothers over unwed fathers violated the U.S. Constitution. Not surprisingly, Justice Ruth Bader Ginsburg, a long-time champion of gender equality, authored the Court’s opinion.

Legal Background
The Immigration and Nationality Act dictates when a child born abroad is deemed a U.S. citizen by birth. The statute specifically addresses the circumstances when one parent is a U. S. citizen and the other a citizen of another nation. For married couples, the main rule in effect at the time here relevant, 8 U.S.C. §1401(a)(7) (1958 ed.), required the U.S.-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed U.S.-citizen fathers by §1409(a), but §1409(c) creates an exception for an unwed U.S.-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.

Facts of the Case
Luis Ramón Morales-Santana, who has lived in the United States since he was 13, asserts U.S. citizenship at birth based on the U. S. citizenship of his biological father, José Morales. José moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy §1401(a)(7)’s requirement of five years’ physical presence after age 14. There, he lived with the Dominican woman who gave birth to Morales-Santana. Joséaccepted parental responsibility and later married Morales-Santana’s mother. His name was then added to hers on Morales-Santana’s birth certificate.

In 2000, the Government sought to remove Morales-Santana based on several criminal convictions, ranking him as alien because, at his time of birth, his father did not satisfy the requirement of five years’ physical presence after age 14. In seeking to prevent his removal, Morales-Santana argued that the Government’s refusal to recognize that he derived citizenship from his U.S.-citizen father violated the Constitution’s equal protection guarantee. The Board of Immigration Appeals denied the motion, but the Second Circuit reversed. It held the differential treatment of unwed mothers and fathers was unconstitutional. To remedy the defect, the Court of Appeals held that Morales-Santana derived citizenship through his father, just as he would if his mother were the U. S. citizen.

Supreme Court’s Decision
The Court concluded that the gender distinction is unconstitutional. “The gender line Congress drew is incompatible with the requirement that the government accord to all persons ‘the equal protection of the laws,’” Justice Ruth Bader Ginsburg wrote on behalf of the Court.
In reaching its decision, the Court highlighted that “Sections 1401 and 1409 date from an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are.” As Justice Ginsburg further explained:

At the time §1409 was enacted as part of the Nationality Act of 1940 (1940 Act), two once habitual, but now untenable, assumptions pervaded the Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the sole guardian of a non-marital child. In the 1940 Act, Congress codified the mother-as-sole guardian perception for unmarried parents. According to the stereo type, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their non-marital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture.

Today, such gender-based classifications are subjected to heightened scrutiny. “Lump characterization of that kind, however, no longer passes equal protection inspection,” Justice Ginsburg wrote.

Turning to whether Morales-Santana should be considered a U.S. citizen, the Supreme Court reversed the Second Circuit’s decision. The justices declined to rule that the shorter residency requirement for unmarried mothers should also be applied to unmarried fathers. Typically, the Supreme Court would extend the favorable treatment to the excluded class. However, in this case, it held that doing so would turn the exception into the general rule. Instead, the Court held that the longer residency requirement should apply to everyone until Congress can “settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.”