Antonia Kirkland

Unwed fathers and mothers may not be treated differently in determining whether their children born overseas can claim American citizenship, the United States Supreme Court has recently ruled. This means that all children born to an unmarried American parent, whether it is a father or a mother, must now be treated the same. The Court's decision on June 12 represents real progress for women and men in achieving gender equality. For the US, the ruling enhances constitutional protections against sex discrimination and means that the sexist-residency provisions of the federal Immigration and Nationality Act can no longer be applied. This is consistent with international law and the Sustainable Development Goals of the United Nations, and it provides the latest example of major advances made in the growing global movement to reform all nationality laws that discriminate on the basis of sex. In Sessions v. Morales-Santana, the Court found that sections of the Immigration and Nationality Act were unconstitutional as they violated the guarantee of equal protection under the Fifth Amendment by giving birthright citizenship preference to children of unwed mothers over unwed fathers. A child born overseas and out of wedlock to an American mother could automatically become a US citizen if the mother previously lived in the country for at least one year. Yet an unwed father could not pass US citizenship unless he had lived in the country for a continuous period of five years, including two years when he was over age 14. In rejecting gender stereotypes, upon which the law was based, this ruling has implications for parents passing US citizenship to children born outside of the country. The case was bought by Luis Morales-Santana, a New Yorker born in the Dominican Republic to an unwed US-citizen father and a Dominican mother. Morales-Santana moved with his family to the US when he was 13 years old and has remained in America since then. At the time of his birth, however, his father fell 20 days short of the US residency required to qualify his son for citizenship at birth. Had his mother been an American citizen instead of his father, Morales-Santana would have been classified as a US citizen and would not have faced deportation by the US government after he was found guilty of committing federal crimes. We at Equality Now, with pro bono assistance from the law firm Hughes Hubbard & Reed and Martha Davis, a professor at Northeastern University School of Law, submitted a joint friend of the court brief that was cited in the Court's written opinion. It highlighted international law and judgments from other countries on ending discrimination in nationality laws. The US government defense of the Act was based on assumptions that unwed mothers are more likely to take responsibility for their children than unwed fathers, and therefore a mother's offspring would have closer connections to the US. The government also claimed that children born overseas to an unmarried female American citizen would be at greater risk of statelessness, thus ending up without citizenship from any country. Based on the fact that it is usually the mother who is discriminated against in nationality laws around the world, however, the Court rejected the government's argument, saying, "One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed U. S.-citizen mothers while ignoring the same risk for children of unwed U. S.-citizen fathers." The Court found the law to be based on flawed assumptions that unwed mothers are the sole guardians of children born outside marriage. Justice Ruth Bader Ginsburg wrote in the opinion that these different requirements "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. . . " and reflected the "once habitual, but now untenable" assumption that "in marriage, husband is dominant, wife subordinate," while an "unwed mother is the natural and sole guardian of a nonmarital child." The Court held that "the gender line Congress drew is incompatible" with the Constitution's guarantee of "the equal protection of the laws" to all. Yet the Court did not feel it could equalize the residency requirements to benefit Morales-Santana, and he was not granted what he wanted: to be recognized as a citizen from birth. The Court reversed a previous ruling in a lower court that shortened the residency requirement and said it was up to Congress to determine the length. The Court also said: "In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." This means that at long last, unmarried American fathers and mothers will be subject to the same residency requirements to pass citizenship to their children born abroad. This is a crucial step toward eliminating sexism in nationality laws worldwide and should encourage other countries with similar laws to introduce their own reforms.

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Antonia Kirkland

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