Gender-Based Citizenship Rule Faces Scrutiny

WASHINGTON (CN) - The Supreme Court heard spirited oral arguments Wednesday over a gender distinction that makes birthright citizenship more difficult for a child born overseas out of wedlock if only the father, not the mother, is an American.

Congress passed the law in question in 1952. The Immigration and Nationality Act says an American man cannot pass on citizenship to his children unless he lived in the United States for 10 years prior to their births. Also, the father must be older than 14 for at least five of those years.

Under the same law, however, an unwed American woman needs to have lived in the United States for just one year, at any time, to pass on U.S. citizenship to her child.

"Congress evidently determined that because such a child would have competing claims of allegiance, that a greater residency was required for the parent to establish the connection to the United States," Deputy Solicitor General Edwin Kneedler told the Supreme Court on Wednesday morning.

Kneedler is representing the government in its bid to have the justices uphold the immigration law's residency differences.

Opposing the law is Luis Ramon Morales-Santana, a man born abroad in 1962 to a Dominican mother and a Puerto Rican father who had U.S. citizenship under the 1917 Jones Act.

When the United States admitted the Dominican-born Morales-Santana in 1975 as a lawful permanent resident, his parents had been married about five years.

Morales-Santana did not bring a claim for derivative citizenship, however, until the United States ordered him deported in 2000.

Last year, the Second Circuit agreed that the residency requirements of the 1952 violated Morales-Santana's rights to equal protection.

The female justices were particularly vocal at Wednesday morning's hearing on the case.

"Why aren't men and women who are parents similarly situated with respect to their affiliation, their attachment to U.S. values," Justice Ruth Bader Ginsburg asked. "I mean, there's no reason to think a man has less of a sense of U.S. belonging than a woman."

Justice Sonia Sotomayor piggy-backed on this idea.

"Why should it be different for an unwed father who has legitimized the child," she asked.

Kneedler emphasized that the government sees this as an issue of ensuring confidence in the child's connection to the United States, not labeling the father's ties as less significant.

Morales-Santana's status hinges on a 20-day time period in 1919, just two years after the Jones Act conferred U.S. citizenship to Puerto Ricans born after April 24, 1898.

When Morales-Santana's father moved to the Dominican Republic that year, he was 20 days shy of his 19th birthday. Based on the requirement to spend five years after the age of 14 in a U.S. territory, the father was a hair shy of the residency cutoff for men to confer birthright citizenship.

The United States sought to remove Morales-Santana based on his 1995 conviction for robbery and attempted murder.

Assistant Solicitor General Kneedler told the court Wednesday that the best way to make things fair, if the court sees an equal-protection violation, "is to apply the 10-year rule to everyone."

Then "let Congress step in and address the problem," Kneedler added.

Arguing for Morales Santana, Los Angeles-based attorney Stephen Broome balked at the government's proposal.

"The prospective remedy is no remedy," Broome said. "It would leave in place all of the gender discriminatory effects caused by this statute."

Prompted by a question from Justice Samuel Alito, the court then looked at f what Congress intended when it drafted the legislation.

"It could be, Justice Alito, that Congress had good reasons for treating nonmarital children more leniently than - at least in the case of mothers - than marital children, because historically nonmarital children were a much more vulnerable class," Broome said. "They were the bastards. They were illegitimate."

The historical record indicates that Congress was concerned about these children being separated from their parents at borders, he added.

Where Congress erred was in assuming that parent would always be the mother, Broome said.

Kagan asked if it would be acceptable to affirm Morales-Santana's citizenship but stay the ruling to let Congress decide how to deal with the gender-discrimination issue. Broome was agreeable but reiterated his objection to the government's position.

"I think that the fundamental problem with the government's remedy is that it could only apply to unborn children and future parents, and it would have no impact on anybody who is affected by the statute at issue before the court today," he said.

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