Justices strike down gender differences in citizenship law

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 U.S. citizen.

In delivering the opinion of the court, Justice Ruth Bader Ginsburg said the equal protection infirmity in requiring a longer requirement for unwed fathers than for unwed mothers is clear. Under such scrutiny, she went on, the different treatment of mothers and fathers in the citizenship laws at issue can not stand.

The ruling, however, may not help the man who brought the case, NY resident Luis Morales-Santana, who was seeking to avoid deportation to the Dominican Republic after being convicted of several offenses.

In 2000, when the government attempted to deport him following convictions for robbery and attempted murder in 1995, Morales-Santana claimed he should be considered a citizen. Fathers had to meet a longer requirement of physical presence in the USA than did mothers.

Now, however, laws that treat men and women differently are "subject to. heightened scrutiny", Ginsburg wrote.

She said the law was based on flawed assumptions that unwed mothers are the sole guardians of children born outside marriage and stereotypes that most men care little about children born out of wedlock.

She went on, however, to hold that the answer could not be for the court to hold that children of US-citizen fathers should be able to use the citizenship standard for those with US-citizen mothers - which had been an exception to the general rule.

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 USA -citizen parent would not be "stateless" - that is, lacking any citizenship at all.

"Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an 'exceedingly persuasive justification, '" Ginsburg wrote, quoting her own opinion in USA v. Virginia.

The requirement for an unwed American mother is that she has lived in the USA continuously for one year before giving birth. With two million single fathers now caring for their children in the US, it is high time that this outdated law -rooted in the stereotype that mothers, not fathers, are responsible for their children - is declared unconstitutional.

A federal appeals court struck down the law and said the one-year period must apply to both unwed fathers and mothers.

Furthermore, the outdated rule betrays a certain amount of anxiety about bringing foreign children into the United States, wrote Ginsburg.

Prescribing one rule of men and another for women on the basis of norms and stereotypes are "stunningly anachronistic" and unconstitutional, she said. Nonetheless, the court couldn't grant Luis Ramon Morales-Santana - the plaintiff in the case - relief.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg's opinion. Justice Thomas filed an opinion concurring in part with the ruling, joined by Justice Samuel Alito.

She also cites the Court's 1975 ruling in Weinberger v. Wiesenfeld, a case she argued as an attorney for the ACLU. Justice Neil Gorsuch did not participate in the case.

  • Leroy Wright