When Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic, his parents were not married. Morales-Santana’s father was a U.S. citizen, but his mother was not. For Morales-Santana’s claim to U.S. citizenship, that fact matters. Under the law in effect when Morales-Santana was born, he would have been a U.S. citizen if his mother had been a U.S. citizen and had spent at least a whole year in the United States. But because his parents were not married and his father, rather than his mother, was the U.S. citizen, Morales-Santana had to meet a much higher bar: He could be a U.S. citizen only if his father had lived in the United States for at least ten years before Morales-Santana was born, with five of those years coming after the age of 14. The different standards for men and women seem unfair, but do they violate the Constitution? That is the question before the justices on Wednesday morning, in Lynch v. Morales-Santana.

For Morales-Santana, who became a permanent resident of the United States in 1975, the issue arose when the federal government initiated proceedings to deport him from the United States after a series of criminal convictions that included robbery, burglary and attempted murder. Morales-Santana argued that he was a U.S. citizen because his father had been one. But his father had not spent five years in the United States after turning 14: He had moved from Puerto Rico to the Dominican Republic just 19 days before his 19th birthday. That was not enough for the U.S. Court of Appeals for the 2nd Circuit, which nonetheless handed Morales-Santana a victory. It ruled that the laws governing citizenship for the children of unmarried parents violated the father’s constitutional right to be treated the same as a U.S.-citizen mother. (The statute was amended in 1986 to reduce the number of years that a father must have lived in the United States, but it continues to apply different standards for men and women.) As a result, the court of appeals declared Morales-Santana a U.S. citizen.

The main argument before the justices on Wednesday is whether the different residency requirements for men and women violate the Constitution. As a general rule, the federal government (representing U.S. Attorney General Loretta Lynch) explains, citizenship rules are gender-neutral. Congress has determined that citizenship requires more of a connection to the United States for the child of one U.S.-citizen parent than a child with two U.S.-citizen parents. But it also carved out an exception to that general rule for children whose parents are not married, and whose mothers are U.S. citizens. That rule, the government reasons, derives from the presumption that, when two unmarried parents have a child together, “there ordinarily is only one legally recognized parent – the mother – at the time of birth.”

Morales-Santana responds that Congress didn’t use “mother” as a “gender-neutral synonym” for “legally recognized person” when it drafted the law. Instead, he contends, the statute’s different treatment of unmarried U.S.-citizen parents was a deliberate choice, based on stereotypes about appropriate gender roles, to favor mothers, rather than fathers. There is no reason to believe, he argues, “that a U.S.-citizen mother who lived in the United States for a year as an infant would better forge a U.S. connection for her child than a U.S.-citizen father who spent his entire life in the U.S. but whose nonmarital child was born abroad one day before his nineteenth birthday.” If anything, he observes, imposing a shorter residency requirement on unmarried mothers “reduces the likelihood that their foreign-born children will have a strong connection to the U.S.”

Morales-Santana is similarly dismissive of another rationale offered by the government for the different treatment of unmarried parents: that Congress imposed shorter residency requirements on unmarried U.S.-citizen mothers because their children had a higher risk of being born stateless – that is, with no citizenship at all. Here he has the support of a “friend of the court” brief from group of scholars who specialize in statelessness and dispute the entire premise of the government’s argument. The scholars tell the justices that they are not aware of any “study or compilation of data that establishes or supports this argument”; indeed, they continue, the “sources cited by the government in its present brief do not support it.”

The justices also must consider a second question in the case: If the law does violate the Constitution, what – if anything – should courts do about it? The government contends that giving Morales-Santana citizenship, as the 2nd Circuit did, is not the answer. Judges cannot simply declare someone a citizen when Congress has not allowed it. Instead, the federal government suggests, the solution is to apply the longer residency requirements that would otherwise apply only to unmarried fathers to all children of unmarried parents when only one parent is a U.S. citizen.

Morales-Santana counters that declaring him a citizen is exactly what the court of appeals should have done. The court of appeals was not “conferring” citizenship, he asserts, but was instead simply eliminating “a constitutional defect in the statute in the manner most consistent with congressional intent.” Applying the shorter residency requirement to the children of unmarried U.S.-citizen fathers serves the same purpose as it does for unmarried U.S.-citizen mothers, he continues, by preventing the separation of parent and child when the parent returns to the United States.

Wednesday’s oral argument will not be the justices’ first encounter with this question. In 2010, the court agreed to hear a case that presented the same issue, but Justice Elena Kagan was recused from that case, presumably because she had been the U.S. solicitor general when the federal government filed its brief opposing review. After oral argument, the justices were deadlocked 4-4, which left the lower court’s ruling in the government’s favor in place. This time around, however, Kagan will participate in the case. There’s no way to know how the justices voted in the earlier case. However, if – as seems at least possible – the four votes in the child’s favor in the earlier case came from Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, the federal government could face a formidable task in trying to ward off an outright victory by Morales-Santana this term.

Posted in Sessions v. Morales-Santana, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument preview: Justices to take on citizenship question – again, SCOTUSblog (Nov. 7, 2016, 7:54 AM),