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Luis Ramon Morales-Santana was born in the Dominican Republic in 1962, to unmarried parents–a U.S. citizen father and a non-citizen mother. Unfortunately, his father had moved from the U.S. to the Dominican Republic nineteen days shy of his nineteenth birthday, making him ineligible to confer U.S. citizenship on a child born out of wedlock outside of the United States. Under U.S. immigration law at that time, an unmarried U.S.-citizen mother would have needed to be in the United States for only one continuous year prior to giving birth to pass her citizenship on to a child, whereas father needed to be in the United States for at least ten years, and five of those must be after the age of 14. Although the statute has since changed, it still discriminates between U.S.-citizen mothers and fathers. As a result, if a child is born to unmarried parents outside of the United States, then that child’s citizenship may rest on which parent is a citizen.
Last week, the Supreme Court heard arguments in Lynch v. Morales-Santana, challenging these provisions of the U.S. Immigration and Naturalization Act as violating the Equal Protection Clause by discriminating based on sex. The National Women’s Law Center joined a friend of the court brief in support of Morales-Santana.
The legislative history of the immigration statute at issue – 8 U.S.C. § 1409 – indicates that Congress assumed that a child born to unmarried parents would naturally be raised by its mother. Therefore, the statute made it easier for mothers to return to the U.S. with their children. Fathers could suffer more stringent requirements because they would be unlikely to raise their child. This assumption is sexist and assumes that mothers are naturally nurturing and want to raise their child, while fathers are content to walk away entirely. This is unfair to mothers who are required to raise a child by themselves, fathers who want to raise their child, and children who are assumed to only have one parent. In a world where same-sex parents are also becoming more common, it makes less sense. The United States is one of only three countries (including Malaysia and Madagascar) to require unmarried fathers to satisfy requirements beyond paternity to pass on citizenship.
The oral arguments focused on this distinction between mothers and fathers and whether it was appropriate. The female Justices especially pushed back on the idea that mothers and fathers might have different degrees of allegiance to the United States, asking questions about why mothers had a stronger connection to the nationality than fathers. The government’s attorney argued that if a father was attempting to establish citizenship for a child, that necessarily meant there were two parents and therefore competing claims for allegiance, whereas a mother attempting to establish citizenship was likely a single mother and therefore there was no worry about competing allegiances. The government also argued that these standards were put in place to protect illegitimate children and prevent them from being separated from their parents at the border.
The decision in this case isn’t expected until next year.
