A win for gender equal nationality rules in the U.S. Supreme Court: Morales-Santana case

[posted 15 June 2017] On Monday 12 June, the U.S. Supreme Court issued a decision in the Morales-Santana case, requiring the Immigration and Nationality Act to be adjusted to remove discrimination against U.S. citizen men in their ability to transmit their citizenship to their children. Currently the law discriminates against fathers, granting women more favourable terms regarding the transmission of U.S. citizenship to their children born outside the United States. Although the ruling presents an important win in the fight for gender equal nationality rights because it acknowledges that the law is discriminatory and orders it to be modified to ensure equality, the decision also has some drawbacks. The analysis below explains in more detail. For more about the issues the case raised regarding gender discrimination in nationality laws, see also the amicus brief in which ISI participated alongside other civil society organisations.

Background

The Immigration and Nationality Act is the legal instrument which provides for acquisition of U.S. citizenship for children who are born outside of the United States, to a U. S. citizen and a foreign national. The main norm applicable unmarried couples requires the U. S. citizen parent to have ten years’ physical presence in the United States before the birth of the child, of which at least five must be after age 14. However, Congress introduced an exception which allows unwed U.S. citizen mothers to transmit citizenship to their children born outside the U.S. if they lived continuously in the United States for just one year before the child was born. As such, U.S. men and women are treated differently in their ability to transmit nationality to their children.

The case of Sessions v. Morales-Santana revolves around the question of whether Luis Ramón Morales-Santana is a U.S. citizen. He was born in the Dominican Republic, to a U.S. citizen father, José Morales, and a Dominican mother. They were unmarried at the time of his birth, although José recognized the child as his when the baby was born. Since José had moved to the Dominican Republic just 20 days before he turned 19 years old, he failed to satisfy the condition of being physically present in the United States for at least five years after the age of 14 – required for an unmarried U.S. citizen man to pass on his nationality to a child born outside the U.S. In the year 2000, the U.S. government sought to remove Mr. Morales-Santana from the United States (he had moved there at age 13), on the basis of several criminal convictions. The government treated him as an ‘alien’ because at the time of his birth, his father did not satisfy the conditions for transmitting citizenship. Mr. Morales-Santana’s citizenship claim was rejected by a judge, and his removal was ordered. He later sought to reopen proceedings on his case, claiming that the government’s refusal to grant him U.S. citizenship was in violation of the Constitution’s equal protection guarantee.

The government’s argument in the case was twofold. First, it argued that Congress, when introducing the exception to the rule, sought to ensure that a child born abroad has a strong connection to the United States. Congress believed that by being born to an alien mother and citizen father, the child’s connection with the United States would be weaker. However, this would allegedly not be the case if the mother were a U.S. citizen. This reasoning rests on the assumption that fathers who do not marry the child’s mother are less involved in the raising of their children, which is not always the case. Mr. Morales-Santana’s father was involved in the child’s life from the beginning, and later also married his mother. Second, the government argued that by introducing the exception, Congress sought to reduce the risk of statelessness for the foreign-born children of U. S. citizens. However, as an amicus brief by scholars on statelessness points out, this exception actually has the potential of creating cases of statelessness. For instance, if the ‘alien mother’ is a national of a country which does not allow women to transmit nationality to their children and if the child is born in a country where nationality is not attributed by birth in national territory, the child would be stateless. This would be the case if, for instance, a child was born to a U.S. citizen father and a Syrian mother in Syria. The Government was also unable to prove that foreign-born children of unwed U. S. citizen mothers are at a disproportionately higher risk of statelessness.

Decision

Judge Ginsburg delivered the judgment, joined by all Judges except Thomas and Alito. In its ruling, the Supreme Court affirmed that discriminatory residency requirements that impact on the transmission of citizenship violate the equal protection clause of the U.S. Constitution. The Court found that the justification offered by the government to keep in place the gender discriminatory policy did not meet the required standards. The exception to the residency norm—which was afforded by Congress to unwed mothers—was deemed “incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” On this issue, there was no dissent among the Judges.

On remedies, the Court found that it is not in a position to grant the relief requested by Mr. Morales-Santana, namely extending to his father access to the same exception which is afforded to unwed U.S. citizen mothers, allowing him to be a U.S. citizen by extension. The Court reversed the 2nd Circuit Court’s decision to shorten the residency requirement for Morales-Santana himself and decided that it is in the hands of Congress to determine the length. This, however, means that it is possible that the residency period for mothers will be extended, in order to match that of fathers, i.e. a ‘levelling down’. If this is the approach adopted, it is likely to give rise to further issues relating to the enjoyment of U.S. citizenship by children of U.S. citizen parents born abroad and could increase the risk of statelessness in some contexts – especially in light of the trend away from marriage and towards informal partnerships.