On Monday, the Supreme Court again made clear that the Constitution provides robust protections against sex discrimination. Writing for a six-Justice majority in Sessions v. Morales-Santana, Justice Ginsburg held that it is unconstitutional sex discrimination for U.S. law to impose different U.S. residency requirements on unmarried citizen mothers and unmarried citizen fathers seeking to pass on U.S. citizenship to their foreign-born children. Chief Justice Roberts and Justice Kennedy, as well as Justice Breyer, Sotomoyor, and Kagan, joined a full-throated affirmation that laws that treat men and women differently must be subjected to searching judicial scrutiny. (The National Women’s Law Center joined a friend of the court brief in support of Morales-Santana last year.)
Luis Ramon Morales-Santana was born in the Dominican Republic in 1962, to unmarried parents – a U.S. citizen father and a Dominican mother. Under U.S. immigration law at that time, an unmarried U.S.-citizen mother would have needed to have lived in the United States for only one continuous year at any prior prior to giving birth to pass her citizenship on to a foreign-born child, whereas an unmarried U.S. citizen father needed to have lived in the United States for at least 10 years, and five of those years must have been after the age of 14. Morales-Santana’s father had moved from the U.S. to the Dominican Republic 19 days shy of his 19th birthday, making him ineligible to pass on his U.S. citizenship. Although the statute has since changed, it still imposes a more demanding residency requirement on unmarried fathers than unmarried mothers in order to pass on U.S.-citizen (requiring that a father be present in the U.S. for five years, including at least two years after the age of 14). 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 U.S. citizen.
The Supreme Court concluded that the law’s difference in treatment of mothers and fathers was based on gender stereotypes that no longer accurately reflect the world, if they ever did – namely, the stereotype that unmarried fathers will have no relationship with their children, while unmarried mothers will act as sole parent and guardian. The Court determined that the sexist assumption that mothers are naturally nurturing and want to raise their child, while fathers are content to walk away entirely “is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” Using the heightened scrutiny standard from previous decisions in cases that discriminated based on sex, the Supreme Court determined that the distinction was not constitutional, because it made “’overbroad generalizations about the different talents, capacities, or preferences of males and females.’” Because the government’s objective relied on stereotypes of one gender’s abilities and propensities, the “objective itself [wa]s illegitimate.”
While the case was a victory for the principle of equal treatment of men and women under law, it was nevertheless a loss for Mr. Morales-Santana himself, who will not receive U.S. citizenship. Rather than applying the one-year residency rule to unmarried fathers, the Court held that going forward, all unmarried U.S. citizen parents – mothers and fathers – would have to satisfy the more stringent standard for passing on citizenship to a child born abroad that previously applied only to fathers. This longer residency requirement is the same residency requirement that applies to a married U.S. citizen parent seeking to pass his or her citizenship to foreign-born children, the Court noted. Given that, the Court concluded that the shorter residency period provided to unmarried mothers was the anomaly and the general rule should apply to all, regardless of sex.