Sunday, 17 December, 2017

Supreme Court Strikes Down Gender-Based Citizenship Law

Mark Wilson  Getty Images Mark Wilson Getty Images
Kelley Robertson | 13 June, 2017, 08:28

The U.S. Supreme Court on Monday struck down a gender distinction in U.S. immigration law that treats mothers and fathers differently when determining a child's citizenship, calling such inequality "stunningly anachronistic".

The court stopped short, however, of providing Luis Ramón Morales-Santana with a ruling that he - whose late father was a U.S. citizen - and others like him should have their citizenship determined by the easier-obtained rule for those with US-citizen mothers. Her opinion cites several landmark discrimination cases that she successfully argued before the high court for the principle that having one rule for mothers and another for fathers is unconstitutional.

"Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an 'exceedingly persuasive justification, '" Ginsburg wrote, quoting her own opinion in USA v. Virginia. But the statute has since been amended to decrease the time requirement for those born since November 14, 1986, to 5 years in the United States, at least two of which were after age of 14.

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.

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.

In 2000, when the government attempted to deport him following convictions for robbery and attempted murder in 1995, Morales-Santana claimed he should be considered a citizen.

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 case is Sessions v. Morales-Santana. Ginsburg's opinion was joined in full by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Here, she observed, the more favorable treatment for unmarried US -citizen mothers rested on the idea that an unmarried mother was "the child's natural and sole guardian".

The law imposed different standards for acquiring citizenship for the offspring of an unwed US citizen who has a child with a citizen of another nation.

Federal law provides that a foreign-born child may obtain USA citizenship through their parents.

The ruling calls on Congress to update the law such that men and women are not treated differently, and orders the executive branch to enforce the law along gender-neutral lines until new language is adopted. 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. Here, the court declined to do what the 2nd Circuit had done, and what Morales-Santana had urged them to do, which was to rule that the shorter residency requirement for unmarried mothers also applied to unmarried fathers. And because the court couldn't give Morales-Santana the relief he was looking for, Thomas continued (in a separate opinion that Alito joined), it did not need to decide any other questions, such as whether the residency requirement is constitutional.

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