Supreme Court strikes down gender-based citizenship law

Posted June 13, 2017

The U.S. Supreme Court decided that federal citizenship rules violate the Constitution by making it harder for some foreign-born children of American men to become citizens than children born overseas to American women.

Justices Clarence Thomas and Samuel Alito agreed with their colleagues on at least one point: The court should not extend the shorter residency requirement to apply to the children of unmarried USA -citizen fathers.

Ginsburg wrote in her opinion, which was joined by five other justices, that different requirements for different genders "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are".

"With two million single fathers now caring for their children in the US, it is high time that this outdated law -rooted in the stereotype that mothers, not fathers, are responsible for their children - is declared unconstitutional", Park said in a statement.

"Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an 'exceedingly persuasive justification, '" Ginsburg wrote, quoting her own opinion in USA v. Virginia. 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.

Essentially, the court's ruling requires Congress to consider men and women, mothers and fathers, as equals in the transference of citizenship, according to the ACLU's Sandra Park, senior staff attorney for the civil liberties organizations' Women's Rights Project. Fathers had to meet a longer requirement of physical presence in the US than did mothers.

But while the law "violates the equal-protection principles", the court also said it is "not equipped" to grant the relief that Morales-Santana seeks - striking down the law and grant him citizenship. In 2010, the court agreed to hear another case that presented the same issue, but Justice Elena Kagan was recused from that case, presumably because she had been the US solicitor general when the federal government filed its brief opposing review. 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".

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Morales-Santana was admitted to the USA as a lawful permanent resident in 1975.

The high court split 4-4 on the same issue in 2011. "Nevertheless, we can not convert §1409 (c)'s exception for unwed mothers into the main rule displacing §1401 (a)(7) (covering married couples) and §1409 (a) (covering unwed fathers)".

Ginsburg's opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan. S. -citizen and one alien parent, Wednesday or unwed.

"Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end", Ginsburg wrote.

Morales-Santana's deceased father was an American citizen, while his mother was not.

Ginsburg said it's up to Congress to decide whether to extend the shorter residency requirement to unwed fathers.