The Supreme Court unanimously ruled Monday that a law that gives birthright citizenship preference to children of unwed mothers over unwed fathers is unconstitutional, saying it violates the Fifth Amendment’s equal protection guarantee.
The government sought to deport Luis Ramon Morales-Santana in 2000 following multiple criminal convictions. Morales-Santana was born in 1962 in the Dominican Republic to a naturalized American citizen father and an unwed mother who was a citizen of the Dominican Republic.
The derivative citizenship that Morales-Santana claimed from his father ran against a provision of the Immigration and Nationality Act. For citizenship to be given to a child born abroad to a U.S. citizen, the act required a U.S. citizen parent in a married couple to have 10 years’ presence in the U.S. prior to the child’s birth, including five years in the U.S. after age 14. This provision also applied to unwed U.S. citizen fathers, but not unwed U.S. citizen mothers. If the unwed U.S. citizen mother lived in the U.S. continuously for one year prior to the child’s birth, she could transmit citizenship to her child.
Morales-Santana’s father narrowly failed to meet the provision. Jose Morales, Morales-Santana’s biological father, moved to the Dominican Republic 20 days before his 19th birthday, 20 days short of satisfying the requirement of living in the U.S. for five years after age 14.
After an immigration judge rejected Morales-Santana’s citizenship claim and ordered him to be deported, Morales-Santana challenged the government’s failure to recognize his citizenship as a violation of the Constitution’s equal protection clause. The Board of Immigration Appeals shot down the motion, but the Second Circuit reversed the judgment.
Justice Ruth Bader Ginsburg wrote the high court’s unanimous opinion, blasting the gender lines drawn by Congress. Justice Neil Gorsuch did not participate
“We hold that the gender line Congress drew is incompatible with the requirement that the government accord to all persons ‘the equal protection of the laws,'” Ginsburg wrote. “Nevertheless, we cannot convert §1409(c)’s exception for unwed mothers into the main rule displacing §1401(a)(7) (covering married couples) and §1409(a) (covering unwed fathers).”
Since the high court could not apply an exception carved out for one group toward another, the court would defer the proper timeframe for the “physical-presence requirement” to Congress, Ginsburg.
“We must therefore leave it to Congress to select, going forward, a physical-presence requirement (10 years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed,” Ginsburg wrote. “In the interim, the government must ensure that the laws in question are administered in a manner free from gender-based discrimination.”
The issue of birthright citizenship has worked its way through the U.S. courts for quite some time. Earlier this year, the 2nd Circuit Court of Appeals decided that a New York man who believed he was a U.S. citizen was not because of how his parents’ failure to marry resulted in him not being “legitimated” under the law.
