Lunedi, 20 Mag, 2019

Justices strike down citizenship law over gender differences

Mark Wilson  Getty Images Mark Wilson Getty Images
Parmenio Sano | 12 Giugno, 2017, 22:25

Under federal law, a child born overseas to an unmarried American mother and non-American father could claim US citizenship if the mother lived continuously in the USA for a year at some point before the birth. Writing for six of the eight participating justices, Justice Ruth Bader Ginsburg said the differing requirements were "stunningly anachronistic". Under such scrutiny, she went on, the different treatment of mothers and fathers in the citizenship laws at issue can not stand.

The court stopped short, however, of providing Luis Ramón Morales-Santana with a ruling that he - whose late father was a USA citizen - and others like him should have their citizenship determined by the easier-obtained rule for those with US-citizen mothers.

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.

But an American mother must only have lived in the US continuously for one year before giving birth to a child to meet the requirement. 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". He claimed he was a USA citizen because of his father's citizenship.

The specific law under the Supreme Court's consideration was a section from the Immigration and Nationality Act, passed in 1952, which said that children born out of wedlock to American mothers and American fathers should be treated differently in terms of naturalization.

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.

Under the law, a child born outside the United States to an unwed citizen father and a non-citizen mother can become a USA citizen at birth if the father lived in the US for five years, with at least two of those years coming after the age of 14.


She dismissed the government's argument that the different treatment was logical because only the mother is the only legally recognized parent at birth, and that the government was trying to avoid situations in which a child would be born "stateless".

The discriminatory rules must fall, she said.

Ginsburg said it's up to Congress to decide whether to extend the shorter residency requirement to unwed fathers.

That means Morales-Santana won the battle but lost the war, and still will not get his citizenship. Ginsburg was joined by Chief Justice John Roberts, and Justice Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

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. 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 Lynch v. Morales-Santana, 15-1191.

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