The U.S. Supreme Court on Monday struck down a law that makes it easier, in some cases, for children born overseas to an unwed U.S. citizen mother to acquire citizenship at birth than children born to an unwed U.S. citizen father.
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 USA citizenship to her child.
Justice Ruth Bader Ginsburg said the gender line Congress drew "is incompatible with the Constitution's guarantee of the equal protection of the laws to all persons". The U.S. Court of Appeals for the 2nd Circuit ruled that federal citizenship laws violated the constitutional rights of unmarried U.S. -citizen fathers to be treated the same as U.S. -citizen mothers, and it declared Morales-Santana a U.S. citizen. And a favorite Ginsburg strategy for eliminating gender-based distinctions in the law was to target laws that - like the one at issue in this case - discriminated against men. A five-year USA presence is required for US citizen parents if the parent is married or the father is unwed.
In the ruling, the Supreme Court said that until Congress revises the law, both women and men will be covered by the five-year requirement.
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.
New Justice Neil Gorsuch took no part in considering or deciding this case.
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Ginsburg's opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
A federal appeals court ruled for Morales-Santana, saying that the same rules must apply to both unwed fathers and mothers, and Morales-Santana met the more lenient one-year rule.
The high court split 4-4 on the same issue in 2011. Here, she observed, the more favorable treatment for unmarried USA -citizen mothers rested on the idea that an unmarried mother was "the child's natural and sole guardian". At the time the statutes were enacted, "two once habitual, but now untenable, assumptions pervaded our nation's citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child".
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.
Having concluded that the different treatment of unmarried USA -citizen mothers and fathers violated the Constitution, the justices now faced an even tougher question, which had been at the forefront of their minds during last year's oral argument: What can or should they do about the violation?
"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.
Ginsburg said it's up to Congress to decide whether to extend the shorter residency requirement to unwed fathers.