Sessions, Attorney General v. Morales-Santana

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The Immigration and Nationality Act provides a framework for how a child born abroad acquires U. S. citizenship when one parent is a U. S. citizen and the other is a citizen of another nation. When the child is born to a married couple, the rule in effect (at the time of this case) required the U. S.-citizen parent to have been in the United States for 10 years prior to the child’s birth, “at least five of which were after attaining” age 14 (§1401(a)). This rule also applied to an unwed U.S.-citizen father, as specified in §1409(a) of the act. But §1409(c) created an exception for an unwed U. S.-citizen mother, whose citizenship can be transmitted to a child born abroad if the mother has lived continuously in the United States for just 1 year prior to the child’s birth.

Luis Ramón Morales-Santana, who has lived in the United States since he was 13, claims that he is a U.S. citizen from birth based on the U.S. citizenship of his biological father, José Morales. José moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy §1401(a) requirement of 5 years of physical presence after age 14. There, he lived with the Dominican woman who gave birth to Morales-Santana. José accepted parental responsibility and included Morales-Santana in his household; he married Morales-Santana’s mother, and his name was then added to hers on Morales-Santana’s birth certificate.

In 2000, the U.S. government sought to remove Morales-Santana from the United States based on several criminal convictions, deeming him as alien because, at his time of birth, his father did not satisfy the requirement of 5 years of physical presence after age 14. An immigration judge rejected Morales­Santana’s citizenship claim and ordered his removal. Morales­Santana later moved to reopen the proceedings, asserting that the differential treatment of unwed mothers and fathers violated the Fifth Amendment’s requirement that the Government accord to all persons “the equal protection of the laws.” The Board of Immigration Appeals denied the motion, but the U.S. Court of Appeals for the Second Circuit reversed, holding that the gender line drawn in the Immigration Act violated the Fifth Amendment. The federal government asked the Supreme Court to review the circuit court’s decision.


JUSTICE GINSBURG delivered the opinion of the Court.

Because §1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana’s birth and was not accorded the right an unwed U.S.-citizen mother would have to transmit citizenship to her child. . . . [Under our case law] Morales­ Santana may seek to vindicate his father’s right to the equal protection of the laws. . . .

[The sections of the Immigration Act at issue] date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”). . . . Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” . . .

Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we declared unconstitutional in ReedFrontiero. . . . As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.”

The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” [United States v.] Virginia (1996). Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Here, the Government has supplied no “exceedingly persuasive justification”

History reveals what lurks behind §1409. Enacted in the Nationality Act of 1940 §1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child.

Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. . . . Through the early 20th century, a male citizen automatically conferred U.S. citizenship on his alien wife. A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. . . .

For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child’s natural and sole guardian. At common law, the mother, and only the mother, was “bound to maintain [a nonmarital child] as its natural guardian.” . . .

In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. . . . Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture.

For close to a half century, this Court . . . recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.”

In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. . . .

In light of the equal protection jurisprudence this Court has developed since 1971 §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic. . . .

Notwithstanding §1409(a) and (c)’s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing “statelessness,” i.e., a child’s possession of no citizenship at all. Even indulging the assumption that Congress intended §1409 to serve these interests, neither rationale survives heightened scrutiny.

We take up first the Government’s assertion that §1409(a) and (c)’s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U.S. values than unmarried women do. Instead, it presents a novel argument.

An unwed mother, the Government urges, is the child’s only “legally recognized” parent at the time of childbirth. An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the “competing national influence” of the alien mother. Congress, the Government suggests, designed the statute to bracket an unwed U.S.-citizen mother with a married couple in which both parents are U.S. citizens, and to align an unwed U.S.-citizen father with a married couple, one spouse a citizen, the other, an alien.

Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U.S.-citizen mother will not accept parental responsibility. . . . Hardly gender neutral, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. Lump characterization of that kind, however, no longer passes equal protection inspection. . . .

The Government maintains that Congress established the gender-based residency differential in §1409(a) and (c) to reduce the risk that a foreign-born child of a U.S. citizen would be born stateless. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U.S.-citizen mother than it was for the foreign-born child of an unwed U.S.-citizen father. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers. . . .

In sum, the Government has advanced no “exceedingly persuasive” justification for §1409(a) and (c)’s gender­specific residency and age criteria. Those disparate criteria, we hold, cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens. . . .

The gender-based distinction infecting §§1401(a) and 1409(a) and (c), we hold, violates the equal protection principle. [H]owever, we must adopt the remedial course Congress likely would have chosen “had it been apprised of the constitutional infirmity.” Although the preferred rule in the typical case is to extend favorable treatment this is hardly the typical case. Extension here would render the special treatment Congress prescribed in §1409(c), the one-year physical-presence requirement for U.S.-citizen mothers, the general rule, no longer an exception. Section 1401’s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U.S.-citizen parent and one foreign-citizen parent, therefore, must hold sway. 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. . . .

The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.