SCOTUS Finds Gender Discrimination In Immigration Law

  • SCOTUS Finds Gender Discrimination In Immigration Law

SCOTUS Finds Gender Discrimination In Immigration Law

The Supreme Court on Monday struck down a federal law that treats children born overseas to unmarried parents differently for purposes of citizenship depending upon whether the biological father or mother is a USA citizen. In the meantime, the five-year requirement "should apply, prospectively, to children born to unwed USA -citizen mothers".

The court ruled, in an opinion (PDF) by Justice Ruth Bader Ginsburg, that the law violates the equal protection clause.

The Washington Post noted that Ginsburg "cited a long list of cases she had a hand in - either as a lawyer arguing before the court or as a justice - striking laws that treated men and women differently in, for instance, receiving Social Security survivor benefits or being admitted to the Virginia Military Academy".

"Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an 'exceedingly persuasive justification, '" Ginsburg wrote, quoting her own opinion in USA v. Virginia. A five-year USA presence is required for US citizen parents if the parent is married or the father is unwed.

Essentially, the court's ruling requires Congress to consider men and women, mothers and fathers, as equals in the transference of citizenship, according to the ACLU's Sandra Park, senior staff attorney for the civil liberties organizations' Women's Rights Project. Because the one-year physical presence requirement was an exception to the general rule, the five-year requirement will apply, prospectively, to children born to unwed citizen mothers, Ginsburg said. The U.S. government has sought to deport him since 2000. Justice Neil M. Gorsuch was not on the court when the case was argued, and took no part in the decision. Unwed American mothers, meanwhile, are only subject to a 1-year US residency requirement to give their children USA citizenship.

It was a hollow victory for Luis Ramon Morales-Santana at the Supreme Court today. Here, Morales-Santana was out of luck, because his father had moved from Puerto Rico to the Dominican Republic only 20 days before his 19th birthday.

The high court split 4-4 on the same issue in 2011.

Ginsburg's opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan. "Nevertheless, we can not 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)".

The law allowed unwed US citizen mothers to transmit their citizenship to children born overseas if the mother has lived in the United States for just one year before the child's birth. S. -citizen and one alien parent, Wednesday or unwed.

The court was equally unimpressed with the government's second justification, which centered on a desire to ensure that a child born outside the United States to an unmarried USA -citizen parent would not be "stateless" - that is, lacking any citizenship at all. "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, later adding, "In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination".

Ginsburg said it's up to Congress to decide whether to extend the shorter residency requirement to unwed fathers.