Federal immigration laws that make citizenship easier to obtain for the children of US citizen mothers than for the children of US citizen fathers are unconstitutional, the Supreme Court held on Monday.
The court stopped short, however, of providing Luis Ramón Morales-Santana with a ruling that he — whose late father was a US citizen — and others like him should have their citizenship determined by the easier-obtained rule for those with US-citizen mothers.
Justice Ruth Bader Ginsburg, writing for the court, noted that the laws dictating citizenship requirements for those born abroad to unmarried parents — found in the Immigration and Nationality Act — "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."
Now, however, laws that treat men and women differently are "subject to ... heightened scrutiny," Ginsburg wrote. Ginsburg argued for that heightened scrutiny as a lawyer, voted for as a judge and justice, and has written about previously on the high court. Under such scrutiny, she went on, the different treatment of mothers and fathers in the citizenship laws at issue cannot stand.
Describing the "assumptions" that "pervaded" the laws when the laws in question were written in 1940, Ginsburg wrote: "In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child."
Those ideas — particularly the latter — were made law in the INA. Because of that, a child born abroad to a US-citizen father only automatically becomes a US citizen at birth if his or her father lived in the US for 10 years, at least 5 of which were after the man turned 14. A child born abroad to a US-citizen mother, on the other hand automatically becomes a US citizen at birth so long as her or his mother spent one year in the US.
"In light of the equal protection jurisprudence this Court has developed since 1971," Ginsburg wrote, the different treatment of unwed mothers and unwed fathers in the immigration law citizenship context "is stunningly anachronistic."
Ginsburg went on to hold that none of the government's claimed justifications for the law could save it from being held to be unconstitutional.
She went on, however, to hold that the answer could not be for the court to hold that children of US-citizen fathers should be able to use the citizenship standard for those with US-citizen mothers — which had been an exception to the general rule.
"Extension here would render the special treatment Congress prescribed [for unwed US-citizen mothers] the general rule, no longer an exception," Ginsburg wrote. "Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim ... [the] now-five-year requirement [that applies generally] should apply, prospectively, to children born to unwed U. S.-citizen mothers."
Justice Clarence Thomas, joined by Justice Samuel Alito, concurred only in the court's judgment that Morales-Santana should not be able to get the relief he sought — citizenship by applying the one-year rule for unwed mothers to fathers. Justice Neil Gorsuch did not participate in the case.