Supreme Court invalidates gender inequality in citizenship law

Mark Wilson  Getty Images

Mark Wilson Getty Images

The holding of Morales-Santana is that a federal citizenship law that gives preferential treatment to the children of unwed USA citizen mothers - and only to unwed mothers, not to unwed fathers - is unconstitutional.

NINA TOTENBERG, BYLINE: The decision marked a major victory for Justice Ruth Bader Ginsburg, who for 20 years has battled unsuccessfully for equal treatment of men and women seeking to pass their citizenship onto their children. By concluding that mothers and fathers should be subject to the same criteria, the court reinforced the principle that legislating based on gender usually results in unconstitutional lawmaking by stereotypes, particularly when there are now over two million single fathers in the U.S. Today's opinion examined the statute under heightened scrutiny, the rigorous standard for constitutional review applicable to any gender-based law or policy, and reaffirmed that the courts can and must invalidate unconstitutional federal policies.

But in a twist, the ruling failed to provide any relief to Luis Ramon Morales-Santana, the NY resident who successfully challenged the law.

Though it declared the rule unconstitutional, the Supreme Court left it up to Congress to determine the equal treatment of children born to a USA citizen and their unwed partner.

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Now Congress will have to decide whether to grant unwed fathers the advantages unwed American mothers previously had or extend the residency requirements for mothers to make the law fair to both sexes.

The law requires unwed fathers to have 10 total years of US residency, including five years after the age of 14, to confer citizenship on a child of theirs who is born overseas. We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born overseas with one U.

The case centered on Luis Ramon Morales-Santana, a US resident for more than 40 years, who was born in the Dominican Republic in 1962.

The citizenship issue became a crucial one when the federal government initiated proceedings to deport Morales-Santana after a series of criminal convictions, and Morales-Santana countered that he was a US citizen because his father had been one. But the Board of Immigration Appeals denied the claim because the father had not satisfied the physical presence requirements. He challenged the law and asserted he is a USA citizen after authorities sought to deport him following convictions for robbery and attempted murder.

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For close to a half century, she said, the court "has viewed with suspicion laws that rely on overbroad generalizations about the different talents, capacities or preferences of males and females".

Justice Ruth Bader Ginsburg said the gender line Congress drew "is incompatible with the Constitution's guarantee of the equal protection of the laws to all persons". Before becoming a federal judge and then a Supreme Court justice, Ginsburg was a pioneer in efforts to fight gender discrimination in the courts. Inviting Congress to remove the gender-based distinction in the law, the court explained that it felt constrained to impose the longer residency requirement on unmarried parents because married US citizen parents must also meet the longer time period in order to confer citizenship. To the contrary, Ginsburg writes, "the Court has held that no "important [governmental] interest" is served by laws grounded... in the obsolescing view that "unwed fathers [are] invariably less qualified and entitled than mothers" to take responsibility for nonmarital children". The Morales-Santana decision striking down sex-based citizenship laws builds on this legacy, more than forty years in the making. In a 6-2 decision, Justice Anthony Kennedy and Chief Justice John Roberts joined the Ginsburg opinion.

The Supreme Court agreed with Morales-Santana, affirming an earlier Court of Appeals decision that the law was unconstitutional. Justices Clarence Thomas and Samuel Alito dissented on other grounds, but did not discount her analysis.

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