High Court Chucks Gender-Based Citizenship Divide

FILE – In this July 26, 2016 file photo, a newborn baby with microcephaly rests at a maternity ward of the University Hospital in Tegucigalpa, Honduras. Researchers say the severe birth defect caused by Zika infection may not be apparent at birth but develop months afterward, further confirmation that the virus can cause unseen damage to developing babies. (AP Photo/Fernando Antonio, File)

WASHINGTON (CN) – The Supreme Court took aim Monday at 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.

Passed in 1952 by Congress, 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.

“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 for the mostly unanimous court this morning. “Nevertheless, we cannot convert §1409(c)’s exception for unwed mothers into the main rule displacing §1401(a)(7) (covering married couples) and §1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U. S.-citizen and one alien parent, wed or unwed. In the interim, the government must ensure that the laws in question are administered in a manner free from gender-based discrimination.”

Luis Ramon Morales-Santana, the challenger who initiated Monday’s partial reversal, was born abroad in 1962 to a Dominican mother and a Puerto Rican father.

Because the couple were unwed at the time, Moraes-Santana’s citizenship 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 in 1919, 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.

Dominican-born Morales-Santana was admitted to the United States in 1975 as a lawful permanent resident, but he did not bring a claim for derivative citizenship until the United States ordered him deported in 2000.

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

Immigration officials appealed to the U.S. Supreme Court after the Second Circuit agreed that the residency requirements of the 1952 law violated Morales-Santana’s equal-protection rights.

Justice Neil Gorsuch was not even nominated when the court heard oral arguments in November, but Monday’s decision is otherwise unanimous.

“Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end,” Ginsburg wrote. “The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U. S. citizen continuously present in the United States for one year at any point in her life prior to the child’s birth. The transmission holds even if the mother marries the child’s alien father immediately after the child’s birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U.S.-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. One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny.”

Ultimately, however, Ginsburg said the court is not equipped to grant the relief Morales-Santana seeks.

“Although extension of benefits is customary in federal benefit cases, see supra, all indicators in this case point in the opposite direction,” the opinion states. “Put to the choice, Congress, we believe, would have abrogated §1409(c)’s exception, preferring preservation of the general rule.”

Ginsburg said the government’s suggested outcome should apply in the interim: a five-year requirement under Section 1401(a)(7), applicable to children born to unwed U. S.-citizen mothers.

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