Opinion analysis: Court rejects gender-based distinctions in citizenship laws

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WASHINGTON — A unanimous Supreme Court on Monday struck down part of an unusual immigration law that treats fathers and mothers differently when it comes to conferring citizenship on children born outside the U.S. Writing for six of the eight participating justices, Justice Ruth Bader Ginsburg said the differing requirements were "stunningly anachronistic".

The case at the court involved Luis Ramon Morales-Santana, who was brought to Puerto Rico at the age of 13 after being born in the Dominican Republic to an unwed US citizen father and a Dominican mother (they later married). In the meantime, the five-year requirement "should apply, prospectively, to children born to unwed US -citizen mothers".

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The board said Morales‐Santana's father had not satisfied the physical residency requirements for unwed fathers since he left the US when he was 18 years old, 20 days shy of his 19th birthday and fifth year of residence in the U.S.

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. "Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children". His father failed to meet the law's five-year requirements by 20 days. His mother was a citizen of the Dominican Republic and his father was a USA citizen who had not spent more than five years in the United States after his 14th birthday.

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. After oral argument, the justices were deadlocked 4-4, which left the lower court's ruling in the government's favor in place.


A federal appeals court struck down the law and said the shorter one-year period must apply to both unwed fathers and mothers. In 2010, the court agreed to hear another case that presented the same issue, but Justice Elena Kagan was recused from that case, presumably because she had been the US solicitor general when the federal government filed its brief opposing review.

The case is one of several with immigration-related themes that are before the justices at a time when President Donald Trump's administration is pursuing efforts to strengthen immigration enforcement.

In the interim, she said, the government must ensure the laws are administered in a way that is free from gender-based discrimination.

When Chief Justice John Roberts announced this morning that Justice Ruth Bader Ginsburg was the author of the opinion, it was a good sign for Morales-Santana. The Justice Department said Congress wanted to make sure there is a strong connection between a child born overseas and the United States before granting citizenship.

Justices Clarence Thomas and Samuel A. Alito Jr. did not join Ginsburg's reasoning, and agreed only in overturning the 2nd Circuit's relief to Morales-Santana.

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