ACLU Comment on Supreme Court Ruling in Gender Equity Citizenship Case

Mark Wilson  Getty Images

Mark Wilson Getty Images

The Supreme Court on Monday struck down a federal law that treats children born overseas to unmarried parents differently for purposes of citizenship depending upon whether the biological father or mother is a United States citizen.

In the interim, she said the law's five-year requirement should apply, prospectively, to children born to unwed US -citizen mothers.

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".

"With two million single fathers now caring for their children in the USA, it is high time that this outdated law -rooted in the stereotype that mothers, not fathers, are responsible for their children - is declared unconstitutional", Park said in a statement.

The government had urged the justices to uphold the law's gender-based differences. Based on the requirement to spend five years after the age of 14 in a US territory, the father was a hair shy of the residency cutoff for men to confer birthright citizenship.

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.

She said federal law indicated Congress would have preferred to fix the discrepancy by instead applying the longer residency period to the children of American mothers.

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 USA citizen because his father had been one.

Justice Neil Gorsuch did not take part in the case, which was argued before his confirmation to the court. 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".

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg's opinion. After oral argument, the justices were deadlocked 4-4, which left the lower court's ruling in the government's favor in place. He claimed he was a United States citizen because of his father's citizenship.

When Morales-Santana's father moved to the Dominican Republic in 1919, he was 20 days shy of his 19th birthday. Here, she observed, the more favorable treatment for unmarried US -citizen mothers rested on the idea that an unmarried mother was "the child's natural and sole guardian". A child born overseas to an unwed citizen mother has citizenship if the mother lived in the United States for at least one year at some point prior to the child's birth.

Ginsburg said the statutes at issue "date from an era when the lawbooks of our nation were rife with overbroad generalizations about the way men and women are". At the same time, the legislation precludes citizenship transmission by a USA -citizen father who falls a few days short of meeting §1401 (a)(7)'s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child's birth and raises the child in the United States.

Justice Clarence Thomas agreed with the outcome, but wrote separately to say that it was not necessary to rule on the constitutionality of the law since Morales-Santana could not get any relief.

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