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Opinion analysis: Court rejects gender-based distinctions in citizenship laws

It was a hollow victory for Luis Ramon Morales-Santana at the Supreme Court today. Six of the eight justices who heard his case agreed with the 55-year-old that U.S. laws violate the Constitution by making it easier for children who are born overseas to an unmarried mother who is a U.S. citizen to acquire citizenship than their counterparts whose unmarried father is the U.S. citizen. That distinction, Justice Ruth Bader Ginsburg wrote for the court, is “stunningly anachronistic.” But the court’s ruling may not help Morales-Santana, who became a lawful permanent resident of the United States in 1975, ward off deportation: The justices reversed a lower court’s decision that effectively conferred citizenship on him, holding that the higher bar that currently applies to unwed fathers and married parents should apply to all children born overseas who have one U.S.-citizen parent.

When Morales-Santana was born in the Dominican Republic in 1962, he would have been a U.S. citizen if his mother had been a U.S. citizen and had spent at least one year in the United States. But because his parents were not married and his father was the U.S. citizen, Morales-Santana was entitled to U.S. 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. Here, Morales-Santana was out of luck, because his father had moved from Puerto Rico to the Dominican Republic only 20 days before his 19th birthday. (In 1986, Congress amended the law, so that unmarried U.S.-citizen fathers need only to have lived in the United States for five years before their children are born, but it continues to apply different standards for men and women.)

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 U.S. citizen because his father had been one. The U.S. Court of Appeals for the 2nd Circuit ruled that federal citizenship laws violated the constitutional rights of unmarried U.S.-citizen fathers to be treated the same as U.S.-citizen mothers, and it declared Morales-Santana a U.S. citizen.

The federal government asked the justices to weigh in, which they agreed to do last year. The questions presented by the case were ones with which they were already quite familiar. 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 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.

When Chief Justice John Roberts announced this morning that Justice Ruth Bader Ginsburg was the author of the opinion, it was a good sign for Morales-Santana. Before becoming a federal judge and then a Supreme Court justice, Ginsburg was a pioneer in efforts to fight gender discrimination in the courts. Indeed, many of the cases to which she referred in today’s opinion were ones either that she had argued personally or in which she had helped to draft the briefs. And a favorite Ginsburg strategy for eliminating gender-based distinctions in the law was to target laws that – like the one at issue in this case – discriminated against men. Here, she observed, the more favorable treatment for unmarried U.S.-citizen mothers rested on the idea that an unmarried mother was “the child’s natural and sole guardian.” But those kinds of “overbroad generalizations,” she continued, can be harmful, in two related ways: They perpetuate stereotypes that require women “to continue to assume the role of primary family caregiver” while at the same time working against men who do “exercise responsibility for raising their children.”

Under the Supreme Court’s longstanding case law, Ginsburg explained, laws that treat men and women differently can survive a constitutional challenge only if the government can show both that the distinction serves an important purpose and that there is a close fit between the purpose and the method chosen to achieve it. Here, the court concluded, the government falls short with both of the rationalizations that it offers to justify the distinction. First, the government suggests that unmarried mothers and fathers are treated differently because the United States wants to ensure that a child born overseas has a strong enough connection to the United States to obtain citizenship. But even if that were true, the court suggests, the statutory scheme doesn’t make sense. It would allow a child of an unmarried U.S.-citizen mother to obtain citizenship even if she had only minimal ties to the United States, because the mother only needed to spend one year of her life in the U.S. before the child was born; indeed, the child could obtain U.S. citizenship even if the mother and child never returned to the U.S. On the other hand, a child whose unmarried U.S.-citizen father had spent significant amounts of time in the United States but didn’t meet the statutory requirements could not obtain citizenship, even if the father returned to the United States shortly after the birth to raise the child there.

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 U.S.-citizen parent would not be “stateless” – that is, lacking any citizenship at all. The court pointed out that “there is little reason to believe” that Congress was worried about statelessness when it enacted the laws at issue in this case. And even if statelessness were a problem, the court added, the federal government had not “shown that the risk of statelessness disproportionately endangered the children of unwed mothers.”

Having concluded that the different treatment of unmarried U.S.-citizen mothers and fathers violated the Constitution, the justices now faced an even tougher question, which had been at the forefront of their minds during last year’s oral argument: What can or should they do about the violation? Here, the court declined to do what the 2nd Circuit had done, and what Morales-Santana had urged them to do, which was to rule that the shorter residency requirement for unmarried mothers also applied to unmarried fathers. The court acknowledged that in other scenarios involving discrimination in providing federal benefits, it had invalidated the discriminatory exceptions, so that the benefits could go to everyone. But in this case, it reasoned, extending the shorter residency requirements for unmarried mothers to unmarried fathers would put children of a married U.S.-citizen parent at a disadvantage, which could not have been what Congress had intended. Instead, the court ruled, the longer residency requirement should apply to everyone, including (going forward) the children of unmarried U.S.-citizen mothers – at least until Congress can step in and “settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.”

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 U.S.-citizen fathers. And because the court couldn’t give Morales-Santana the relief he was looking for, Thomas continued (in a separate opinion that Alito joined), it did not need to decide any other questions, such as whether the residency requirement is constitutional.

Recommended Citation: Amy Howe, Opinion analysis: Court rejects gender-based distinctions in citizenship laws, SCOTUSblog (Jun. 12, 2017, 1:42 PM),