SCOTUS Strikes Down Gender-Based Citizenship Law

The Supreme Court ruled that immigration laws should not be discriminatory
based on marital status or gender of custodial parents. Photo: Shutterstock

On June 12, the U.S. Supreme Court struck down a law that, in some cases, discriminates against custodial fathers when making citizenship decisions.

Attorneys for the case in question, Sessions v. Morales-Santana, argued that citizenship requirements are more friendly toward unwed mothers than they are to unwed fathers.

The Supreme Court considered whether the Immigration and Nationality Act’s physical presence requirement violates the Fifth Amendment’s equal protection guarantee. As the law stands now, a U.S. citizen father wishing to convey citizenship at-birth to his child born abroad cannot do so unless he has been physically present in the United States for five years prior to the child’s birth. In contrast, an unwed citizen mother only needs to be physically present for one continuous year. Morales-Santana’s attorneys argued that the Supreme Court should remedy this violation by applying the shorter one-year requirement to both unwed citizen mothers and fathers.

The plaintiff in this case, Luis Ramón Morales-Santana, was born to a Puerto Rican father who moved to the Dominican Republic when Morales-Santana was an infant. Morales-Santana and his family arrived in the U.S. when he was 13 years old, and he has lived in the United States for most of his life. Puerto Rico is a U.S. commonwealth, which confers U.S. citizenship to its residents. But Morales-Santana’s father left Puerto Rico for the Dominican Republic just 20 days short of satisfying the five-year residency requirement; thus, Morales-Santana is facing being deported back to the Dominican Republic.

“We hold that 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 in the court’s opinion on the case. She also argued that the current law is based on discriminatory beliefs about the capacities of men and women to nurture children and take responsibility for non-marital children.

The statutes governing the current laws on the books “date from an era when the lawbooks of our nation were rife with overbroad generalizations about the way men and women are.” At the time those statutes were enacted, “two once habitual, but now untenable, assumptions pervaded our nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child.” 

However, Ginsburg said, the court can’t rewrite the law, so Congress must select a physical-presence requirement that applies uniformly to all children abroad when one parent is a U.S. citizen and the other is not, whether the parents are wed or unwed. Thus, because the unwed mother clause was an exception to the statute, the five-year rule should apply to both married parents and unwed mothers and fathers.

Ginsburg’s opinion was joined in full by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Justice Neil Gorsuch did not take part in the opinion.

Although this doesn’t help Morales-Santana, who is still facing deportation in the face of the Supreme Court’s decision, it does clarify and provide consistency for the enforcement of immigration laws.