Justices Strike Down Gender Differences in Citizenship Law

Ruth Bader Ginsburg
Supreme Court Justice Ruth Bader Ginsburg in her Supreme Court chambers in Washington
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13 June, 2017

The Supreme Court took aim Monday at a gender distinction that makes birthright citizenship more hard for a child born overseas out of wedlock if only the father, not the mother, is an American.

The court ruled, in an opinion (PDF) by Justice Ruth Bader Ginsburg, that the law violates the equal protection clause.

But the court's ruling may not help Morales-Santana, who became a lawful permanent resident of the United States in 1975, ward off deportation: The justices reversed a lower court's decision that effectively conferred citizenship on him, holding that the higher bar that now applies to unwed fathers and married parents should apply to all children born overseas who have one US -citizen parent.

Ginsburg said the court can't rewrite the law, so Congress must select a physical-presence requirement that applies uniformly to all children born overseas when one parent is a US citizen and the other is not, regardless of the parents' marital status.

Popular Video This young teenage singer was shocked when Keith Urban invited her on stage at his concert. In the interim. [the] now-five-year requirement [that applies generally] should apply, prospectively, to children born to unwed U. Also, the father must be older than 14 for at least five of those years.

Along the way, Ginsburg cited a long list of cases she had a hand in - either as a lawyer arguing before the court or as a justice - striking laws that treated men and women differently in, for instance, receiving Social Security survivor benefits or being admitted to the Virginia Military Academy. The Obama administration appealed. The law made it tougher for children of unwed American fathers to gain citizenship themselves. His father failed to meet the law's five-year requirements by 20 days. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: "The alien father, who might transmit foreign ways, was presumptively out of the picture". He was convicted of several criminal offenses in 1995, including two counts of robbery and four counts of attempted murder.

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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 US citizen because his father had been one.

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.

The Supreme Court Monday said the distinction amounted to discrimination on the basis of gender, violating the Constitution's equal protection clause. Instead, the court ruled, the longer residency requirement should apply to everyone, including (going forward) the children of unmarried USA -citizen mothers - at least until Congress can step in and "settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender".

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg's opinion.

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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