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June 12, 2017

Breaking News: Supreme Court Holds that the Constitution Applies to Gender Distinctions in Derivative Citizenship Laws

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

This morning, the Supreme Court decided Sessions v. Morales-Santana and held that the Constitution applies to gender distinctions in the derivative citizenship laws.  Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote the opinion for the Court.  Justice Thomas, joined by Justice Alito, concurred in the judgment in part.  Justice Gorsuch took no part in the consideration or decision in the case.

The issues in the case were:  1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.

The U.S. Court of Appeals for the Second Circuit ruled that the laws governing citizenship for the children of unmarried parents violated the father’s constitutional right to be treated the same as a U.S.-citizen mother. (The statute was amended in 1986 to reduce the number of years that a father must have lived in the United States, but it continues to apply different standards for men and women.) The court of appeals declared Morales-Santana a U.S. citizen.

In previous cases raising similar issues, a majority of the justices had not been in agreement. 

Justice Ginsburg noted that the statutory provisions in question "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  (citations omitted).   Gender distinctions now are subject to heightened scrutiny under the Equal Protection Clause.  "Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we [have] declared unconstitutional . . . ." In the majority's view, the gender distinctions are "stunningly anachronistic" and violate the Equal Protection guarantee.

The majority, however, declined to rewrite the statute.  That is within the purview of Congress.  In the interim, the Court agreed with the U.S., government and ruled that a five-year requirement under another subsection of the statute should apply prospectively to children born to unwed U.S.-citizen mothers.

Justice Thomas, concurring in part in the judgment, would not decide the constitutional issues but would simply find that the Court could not provide the relief sought by Morales-Santana.

Immigration law has been exceptional in its immunity from judicial review.  Sessions v. Morales-Santana is another step down the road toward applying ordinary constitutional norms to the immigration and nationality laws. Six justices agreed that the Equal Protection Clause applied to gender distinctions in the derivative citizenship laws.  We shall see whether the decision marks the beginning of a trend in this Term's immigration decisions -- several that raise constitutional questions.