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Supreme Court Strikes Down Gender-Based Citizenship Rules

ARI SHAPIRO, HOST:

The Supreme Court today struck down a federal law that treated unwed fathers and mothers unequally when it comes to the citizenship status of their children born outside of the United States. Under current law, a child born abroad to an unwed American mother automatically becomes a U.S. citizen if the mother previously lived in the U.S. for at least one year. In contrast, the child of an unwed father can't become an American citizen unless the father lived in the U.S. continuously for five years. Today the Supreme Court ruled that this difference violates the Constitution. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The decision marked a major victory for Justice Ruth Bader Ginsburg, who for 20 years has battled unsuccessfully for equal treatment of men and women seeking to pass their citizenship onto their children. Today she wrote the court's opinion declaring that the different gender lines drawn by Congress violate the Constitution's guarantee to equal protection of the law.

The decision marked the fourth time in two decades that the Supreme Court has grappled with some version of this issue. Once, the court, by a 5-4 vote, upheld the differential treatment, and twice it failed to reach a majority ruling. Today, however, the vote was 6-2, requiring equal treatment of mothers, fathers and their children. And joining in the opinion were not just the court's liberals but Chief Justice John Roberts and Justice Anthony Kennedy.

The case was brought by Luis Ramon Morales-Santana, born in the Dominican Republic to unwed parents, a mother from the Dominican Republic and a U.S. citizen father working on a construction project there who fell 20 days short of the time required for him to convey automatically U.S. citizenship to his son. The father took responsibility for the son from the time of his birth, and the parents eventually married and put the father's name on the birth certificate. Eventually, the son came to the U.S. with his family as a permanent resident. But in 2000, after he was convicted of several felonies, the government sought to deport him. Morales-Santana then challenged the citizenship law as unconstitutional sex discrimination, and today the Supreme Court agreed.

Justice Ginsburg wrote the current law is based on what she called stunning stereotypes, among them that most men care little about their children born out of wedlock. Ginsburg turned next to what she called the vexing problem of what to do now. The rule in a typical case would be to extend the favorable treatment of one sex - in this case women - to men. But here, Ginsburg observed, the favorable treatment for the mother was the exception to the general rule in the statute, and the court, she said, is not free to make the exception into the general rule. Instead, she said, it's up to Congress to set the same rule for everyone. In the meantime, she said, the law would have to be equalized by making unwed mothers abide by the tougher citizenship rules that in the past have applied to unwed fathers.

University of Chicago law professor Mary Anne Case.

MARY ANNE CASE: This is an omelet they made by breaking some eggs.

TOTENBERG: What she means is that until or unless Congress fixes the law, it will be significantly harder for the children of unwed mothers born abroad to become U.S. citizens. Still, the court for the first time has applied the concept of gender equality to the nation's citizenship laws. And the opinion for the court written by Justice Ginsburg relies to a large extent on cases that she briefed and argued as an advocate early in her career and other gender discrimination decisions she's written as a justice. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.