New York Times: “Supreme Court Bars Favoring Mothers Over Fathers in Citizenship Case”

by Joseph McKeown

The Supreme Court ruled last week that unwed mothers cannot be treated differently than unwed fathers when it comes to matters of children claiming American citizenship, since the gender-based difference violates the equal protection granted by the Constitution. The ruling came out of a case brought by Luis Ramon Morales-Santana, born in the Dominican Republic in 1962 to unwed parents, whose father was an American citizen and a mother who was a non-citizen. Morales-Santana, who has been living in the United States since he was thirteen, was convicted for robbery and attempted murder, among other crimes, causing federal authorities to seek his removal from the US.

In response to his convictions and possible deportation, Morales-Santana claimed American citizenship based on a rather unusual immigration law. Under this law, a child born abroad to unwed parents could automatically become a US citizen if the mother is a US citizen who has previously lived in the US for at least one consecutive year prior to the child’s birth. Conversely, the same law only allows an unwed father to transfer his US citizenship to the child if the father has lived in the US for ten years prior to the child’s birth, five of them after the age of fourteen. This law has been revised but still has different requirements by gender, favoring mothers over fathers.

Justice Ruth Bader Ginsburg, leading the 6-2 majority, calls this law “stunningly anachronistic,” stating that for nearly fifty years, the court has viewed with suspicion, any “laws that rely on overbroad generalizations about the different talents, capacities or preferences of males and females.” Justice Ginsburg writes that Congress’ gender distinctions violate the Constitution’s equal protection of the laws guaranteed to all persons. She also notes that different treatment of mothers and fathers is unjustified. She writes:

The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a US 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 transmissions by a US-citizen father who falls a few days short of meeting the law’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.

Morales-Santana’s father was one of those unwed US-citizen fathers who just fell short of satisfying this law’s unique requirements by only twenty days. In this case, the US government urged the Supreme Court to uphold this law containing the gender-based differences. The Justice Department argued that Congress wanted to ensure that there is a strong connection between a child born abroad and the US before permitting citizenship.

Citizenship requirements have been an issue in deportation cases for many years. For example, in 2008 it was discovered that the US government had been misinterpreting citizenship statutes and incorrectly deporting US citizens. The error involved “derivative citizenship,” which allows a child to automatically become a citizen if a parent has been naturalized before the child has turned eighteen, provided some other conditions are met.    

Although the court decided that mothers and fathers must be treated the same, Justice Ginsburg had some bad news for Morales-Santana. The court normally would have applied the benefits granted by the statute to the disfavored group, but the shorter period was an exception to the general rule, and also applied to married parents. Therefore, Justice Ginsburg states the longer time period requirement should apply to both mothers and fathers until Congress can decide on a different length of time to be required. For Morales-Santana’s case, this means he is still subject to deportation. “Going forward,” Justice Ginsburg writes in the opinion, “Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.”

UPDATE JUNE 23, 2017: In other citizenship news, the Supreme Court also issued a ruling narrowing the grounds on which naturalized citizens can have their citizenship revoked. The case involved Divna Maslenjak, an ethnic Serb who arrived in the US in 2000 as a refugee and was granted citizenship and later naturalized; however, in 2013, a jury found her guilty of making false statements on her naturalization application. She was subsequently stripped of citizenship. The Supreme Court unanimously ruled in favor of Maslenjak, stating that the offense had to be “materially related to the decision to grant naturalization” to strip an individual of citizenship. Justice Elena Kagan writes: "If whatever illegal conduct occurring within the naturalization process was a causal dead-end—if, so to speak, the ripples from that act could not have reached the decision to award citizenship—then the act cannot support a charge that the applicant obtained naturalization illegally.” The government had argued that it could strip citizenship to anyone who lied during the naturalization process, even if the lie was not significant to the decision to grant naturalization. During arguments for the case, Chief Justice John Roberts pointed out the government's position could lead to "prosecutorial abuse."