On 12 June, 2017, the US Supreme Court issued a ruling for Sessions v. Morales-Santana to address the sex discrimination in the Immigration and Nationality Act! Unmarried American fathers and mothers will now have the same residency requirements in order to pass on citizenship to their children born abroad.
We sat down with EN's Legal Equality Program Manager, Antonia Kirkland to learn more about the ruling.
A version of this article was also featured on PassBlue.
The Supreme Court’s ruling represents real progress for women and men in the movement for gender equality. For the United States, it bolsters constitutional protections against sex discrimination and means that the sexist residency provisions of the federal Immigration and Nationality Act can no longer be applied.
The decision is also consistent with international law as well as several of the Sustainable Development Goals adopted by all governments at the UN in 2015, the US included. It provides the latest example of the significant progress being made around the world at the national level, and as part of a growing global movement to end unjust nationality laws that discriminate on the basis of sex.
In Sessions v. Morales-Santana, the Court found that sections of the Immigration and Nationality Act were unconstitutional because they violated the guarantee of equal protection under the Fifth Amendment by giving birthright citizenship preference to children of unwed mothers over unwed fathers.
Under the law, a child born overseas and out of wedlock to an American mother could automatically become a US citizen if the mother previously lived in the US for at least one year. However, an unwed father could not pass US citizenship unless he had lived in the US for a continuous period of five years, including two years when he was over age 14.
By imposing different residency requirements for fathers and mothers, the law made it tougher for children of unwed American fathers to gain citizenship. In rejecting gender stereotypes, which the law was based on, this ruling is an important advance for equality on the basis of sex and has implications for parents passing US citizenship to children born outside of the US.
The case was bought by a son, Luis Ramon Morales-Santana, a New York resident born in the Dominican Republic to an unwed US citizen father and a Dominican mother. The parents eventually married, the father’s name was added to the birth certificate and the father took responsibility for his son. Morales-Santana moved with his family to the US when he was 13-years-old and remained in America for decades. However, at the time of his birth, his American father fell 20 days short of the US residency required to qualify his son for citizenship at birth.
Had his unmarried mother, rather than his unmarried father, been an American citizen he would not have found himself in the situation of being potentially deported after being found guilty of federal crimes. He, however, had a basis to challenge the citizenship law as unconstitutional sex discrimination.
The role of amici in the decision
Together with pro-bono assistance from law firm Hughes Hubbard & Reed, LLP and Prof. Martha Davis of Northeastern School of Law, we submitted a ‘friend of the court (amici curiae) brief’, that was cited in the Court’s written opinion, highlighting international law and foreign case law on ending discrimination in national laws.
The brief also highlighted the US role at the United Nations and in its human rights reports in promoting equal rights for women and men to transfer their nationality to their children – which was contradicted by the government's appeal in this case.
Equality Now’s campaign
Equality Now first highlighted the issue of discrimination in the US Immigration and Nationality Act in 1999 in its advocacy report, Words & Deeds, Holding Governments Accountable in the Beijing +5 Review Process. This report updated in 2004, 2010 and 2015 with a sampling of discriminatory nationality and other laws around the world on the anniversary of the adoption of the Beijing Platform for Action which was agreed to by 189 countries around the world, including the US. In particular, these campaign reports highlighted the requirement placed only on fathers, and not mothers, to agree in writing to provide financial support a child born out of wedlock overseas in order to transmit citizenship to that child.
The section of the law requiring a declaration in writing of financial support from unwed fathers as a condition to giving citizenship to a child born abroad was challenged before the United States Supreme Court in Nguyen v. INS, 533 U.S. 53 (2001). In November 2000, Equality Now and our partners around the world submitted an amici curiae brief asking the Court to consider international law, including the International Covenant on Civil and Political Rights which the US has ratified, as well as customary international law and jurisprudence from other countries. The Court held, however, that the law does not violate the equal protection guarantee of the United States Constitution. In her dissenting opinion Justice O’Connor wrote “[i]ndeed, the majority’s discussion may itself simply reflect the stereotype of male irresponsibility that is no more a basis for the validity of the classification than are stereotypes about the ‘traditional’ behavior patterns of women.”
In June 2010, Equality Now, Human Rights Watch and other human rights organizations and institutions from around the world filed an amici curiae brief at the United States Supreme Court challenging the section of this discriminatory statute which required a longer residency period for fathers than mothers to pass their nationality to their children born abroad and out of wedlock. However, the US Supreme Court in its decision of 13 June 2011 in Flores-Villar v. United States, reaffirmed, without any opinion or explanation, the decision in the lower court upholding these discriminatory provisions. Thus the stage was set for the constitutional challenge in Sessions v. Morales-Santana.
Parenthood and gender stereotypes
Underpinning the US government’s stance to keep the discriminatory residency requirements was the assumption that unwed mothers are more likely to take responsibility for their children than unwed fathers, and therefore a mother’s offspring would have closer connections to the United States. The government also claimed that children born overseas to an unmarried female US citizen would be at greater risk of statelessness - thus ending up with no citizenship from any country - than if they were born to an unmarried male.
However, based on the fact that it is usually the mother who is discriminated against in nationality laws around the world, the Court rejected the government’s argument, stating, “One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed US– citizen mothers while ignoring the same risk for children of unwed US–citizen fathers.”
The ruling affirmed that discriminatory residency requirements violate the equal protection principle, and the Court held that “the gender line Congress drew is incompatible” with the Constitution’s guarantee of “the equal protection of the laws” to all. If the US had an explicit guarantee of equality in its Constitution contained in an “equal rights amendment,” then this would not even be a question, and it would give the US more credibility with other countries that already have such guarantees in their constitutions and on the world stage as a defender of human rights.
The opinion, written by Justice Ruth Bader Ginsburg, further points out that the law was based on flawed assumptions that unwed mothers are the sole guardians of children born outside marriage, and on stereotypes that most men care little about children born out of wedlock.
She said the different requirements: “date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are”… and reflected the “once habitual, but now untenable” assumption that “in marriage, husband is dominant, wife subordinate,” while an “unwed mother is the natural and sole guardian of a nonmarital child.”
The Court did not feel it was in the position itself to equalize the residency requirements to benefit Morales-Santana. This means the plaintiff has not been granted what he was asking for, namely to be recognized as a citizen from birth. The Court reversed the previous ruling in a lower court that shortened the residency requirement for him and said it is up to Congress to determine the length. In the meantime, the Court said the five year rule should apply to everyone. The Court also said, however, that, "In the interim, the Government must ensure that the laws in question are administered in a manner-free from gender-based discrimination."