Sessions v. Morales-Santana: Supreme Court Strikes Down Gender Distinctions in Derivation of Citizenship Laws

 

Introduction

On June 12, 2017, the Supreme Court issued a decision in Sessions v. Morales-Santana, 582 U.S. __ (2017) [PDF version] (formerly Lynch v. Morales-Santana). The case dealt with the constitutionality of disparate residency requirements for unwed U.S. citizen mothers and unwed U.S. citizen fathers for the conferral of U.S. citizenship to children born abroad. Although the issue specifically dealt with a previous scheme of derivation of citizenship statutes, its result implicates the current derivation laws as well. Justice Ruth Bader Ginsburg authored the opinion of the Court, holding that the gender-based distinctions that gave preferential treatment to unmarried mothers over unmarried fathers in the conferral of citizenship to children born abroad violated the implicit equal protection guarantee Fifth Amendment. Accordingly, children of unwed U.S. citizen mothers will now be subject to the stricter residency requirements that apply to unwed U.S. citizen fathers.

Sessions v. Morales-Santana

Justice Clarence Thomas, joined by Samuel Alito, offered a brief opinion concurring in judgment in part, but taking the position that it was unnecessary to reach the constitutional issues in the case.

Justice Neil Gorsuch took no part in the consideration or decision of the case.

In this article, we will examine the Morales-Santana decision and what it means going forward. Before reading this article, please see our articles on the Second Circuit decision in the case [see article] and the oral arguments before the Supreme Court [see article]. Both articles provide a detailed explanation of the underlying facts at issue in Sessions v. Morales-Santana.

Please see our full article to learn about the derivation of citizenship at birth for children born abroad to at least one U.S. citizen parent (updated to reflect Sessions v. Morales-Santana) [see article].

Opinion of the Court: Justice Ginsburg

In the following sections, we will examine the opinion of the Court in Morales-Santana authored by Justice Ruth Bader Ginsberg.

General Overview

Justice Ginsburg set forth the statutes in the case. At issue in Morales-Santana was a series of derivation of citizenship statutes addressing when a U.S. citizen parent could confer citizenship to a child born abroad. The old section 301(a)(7) of the Immigration and Nationality Act (INA), now section 301(g), set forth the residency (and other) requirements for situations in which one parent was a U.S. citizen and one parent an alien. The old statutory scheme in effect required ten years of pre-birth physical presence in the United States by the unwed citizen father, whereas the current scheme requires five years [see section for more information].

However, a far more generous requirement has been in effect for unwed U.S. citizen mothers dating back to the 1940 and 1952 Immigration Acts. Since 1952, under section 309(c), an unwed U.S. citizen mother may transmit citizenship with only one year of residence in the United States pre-birth.

The respondent in the instant case, Morales-Santana, was born in the Dominican Republic in 1962 to an alien mother and U.S. citizen father. His father was 20 days short of meeting the physical presence requirement in the old section 301(a)(7), specifically in his case, that he was short of meeting the 5-year physical presence requirement after age 14 (note that the operative derivation of citizenship law is always the one in effect at the time of the birth). It goes without saying that had Morales-Santana's U.S. citizen parent been his mother, and if she had the same residency as his father, Morales-Santana would have derived citizenship under section 309(c). Please see the relevant section of our article on the Second Circuit decision in Morales-Santana to learn about the facts in more detail [see section].

Morales-Santana moved to the United States in 1975. In 2000, he was placed in removal proceedings due to criminal convictions. As a defense in proceedings, he argued that he was a U.S. citizen. He asserted that the gender-based distinctions between sections 309(a) and (c) violated the implicit equal protection principle in the Fifth Amendment of the United States Constitution.

Prior Litigation

Both the Immigration Judge and the Board of Immigration Appeals (BIA) rejected Morales-Santana's argument that he had derived citizenship from his U.S. citizen father. Morales-Santana was ordered removed from the United States.

Morales-Santana appealed to the Second Circuit. The Second Circuit ruled in Morales-Santana's favor, finding that the gender-based distinctions in the derivation of citizenship laws — insofar as they treated unwed mothers and fathers differently — were unconstitutional. Interestingly, the Second Circuit found specifically that the rights of Morales-Santana's father were violated by the provisions. As a remedy, the Second Circuit held that Morales-Santana had derived citizenship through his father as if his father had been his mother. The key point here is that the Second Circuit opted to apply the more generous provisions for unwed mothers rather than apply the more stringent provisions for unwed fathers to all cases. Please see our full article to learn about the Second Circuit decision in more detail [see article].

The government appealed from the Second Circuit decision to the Supreme Court, which agreed to take the case.

Morales-Santana Has Third-Party Standing

Justice Ginsburg explained that because section 309 of the INA, old and current, treats sons and daughters born abroad equally, Morales-Santana did not suffer discrimination on the basis of sex.

However, Morales-Santana had not argued that he was the victim of discrimination, but rather that his father had been. This argument was accepted by the Second Circuit. Morales-Santana raised the argument again in the Supreme Court, and it was opposed by the government. However, the Court would side with Morales-Santana.

Citing to Warth v. Seldin, 422 U.S. 490, 499 (1975) [PDF version], Justice Ginsburg noted that parties are generally not permitted to rest a claim to relief on the legal rights of others. However, the Court has recognized a limited exception to this rule. Justice Ginsburg cited to Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) [PDF version] (quoting Powers v. Ohio, 499 U.S. 400, 411 (1991) [PDF version]), wherein the Court held that there is an exception where “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests.”

Justice Ginsburg held that Morales-Santana's father was covered by the exception set forth in Kowalski and Powers. He satisfied both the “close relationship” and “hindrance” “requirements.” Furthermore, Morales-Santana's father was unable to raise his claim because of disability — because that he died in 1976 — rather than disinterest. In Hodel v. Irving, 481 U.S. 705, 711-712, 723 n.7 (1987) [PDF version], the Court held that children and their guardians may assert the Fifth Amendment rights of deceased relatives.

Analyzing Gender-Based Distinctions in Law

Justice Ginsburg noted that the statutes at issue in the case, old INA sections 301 and 309, “date from an era when the lawbooks of our nation were rife with overbroad generalizations about the way men and women are.”

Justice Ginsburg explained that, since the 1970s, the Supreme Court has applied higher scrutiny under the Constitution's equal protection guarantee when analyzing laws that differentiate on the basis of gender. On page 8 of the decision, she lists a series of cases dating back to 1971 wherein the Court applied this high standard to strike down various laws making gender-based distinctions. For one example, see Reed v. Reed, 404 U.S. 71, 74, 76-77 (1971) [PDF version], wherein the Court overturned as unconstitutional “a probate-code preference for a father over a mother as administrator of a deceased child's estate.”

Justice Ginsburg explained that the INA's prescribing of one rule for mothers and another rule for fathers “is in the same genre as the classifications we declared unconstitutional.” Accordingly, she found that “heightened scrutiny” was in order for assessing the provisions.

Citing to United States v. Virginia, 518 U.S. 515, 533 (1996) [PDF version], Justice Ginsburg explained that the government had to establish the following in order to show that legislation that differentiates on the basis of sex is constitutional:

  1. That the challenged classification serves important governmental objectives; and
  2. That the discriminatory means employed to achieve those objectives are substantially related to the achievement of those objectives.

Additionally, citing to Obergefell v. Hodges, 575 U.S. ___, ___ (2015) (slip op., at 20) [PDF version], Justice Ginsburg explained that the government must establish that the classification “must substantially serve an important governmental interest today.” In Obergefell, the Court held that it had “recognized that new insights and societal understandings can reveal unjustified inequality … that once passed unnoticed and unchallenged.”

For the foregoing reasons, Justice Ginsburg and the Court held in the instant case that the government did not meet its burden.

Basis of Distinctions

Justice Ginsburg explained that, prior to 1940, U.S. law had been silent on the issue of children born abroad to unwed U.S. citizen mothers. She stated that in that era, citizenship laws were predicated on two “habitual, but now untenable, assumptions”:

  1. In marriage, the husband is dominant, and the wife subordinate; and
  2. The unwed mother is the natural and sole guardian of a non-marital child.

Justice Ginsburg noted that these assumptions evinced in the first point applied more broadly than merely to the conferral of citizenship to children born abroad. For example, in Kelly v. Owen, 7 Wall. 496, 498 (1869) [PDF version], the Court recognized that the 1855 Act conferred citizenship on alien women who married U.S. citizen men. However, in Mackenzie v. Hare, 239 U.S. 299, 311 (1915) [PDF version], the Court upheld that statute that also provided that a U.S. citizen woman was subject to expatriation for marrying in alien man (on the basis that woman would adopt husband's nationality).

Justice Ginsburg explained that, from 1790 to 1934, the foreign born child of a married couple could only gain citizenship through the father (see footnote 11 of the decision for a list of statutes). However, “[f]or unwed parents, the father-controls tradition never held sway.” Rather, citing to an 1854 text, Justice Ginsburg explained that the mother — and only the mother — was “bound to maintain [a nonmarital child] as its natural guardian.” (2 J. Kent, Commentaries on American Law *215-*216 (8th ed. 1954.)

Justice Ginsburg noted, citing to Hearings on H.R. 6127 before the House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 43, 431 (1940) (“1940 Hearings”), that the United States Department of State (DOS) would sometimes, prior to 1940, grant citizenship to the children of unwed U.S. citizen mothers born abroad despite the absence of statutory authority.

1940 saw significant changes to the naturalization laws. Here, Justice Ginsburg noted that “Congress discarded the father-controls assumption concerning married parents, but it codified the mother-as-sole guardian perception regarding unmarried parents.”

In the 1940 Hearings, the then-Franklin Roosevelt Administration took the position that the mother was the natural guardian of a child born outside of marriage. Furthermore, the Roosevelt Administration argued that the child of an unwed U.S. citizen father and alien mother would be likely to turn out “more alien than American in character.” However, the Administration's position was that the child of an unwed U.S. citizen mother and alien father would be more likely to be American in character. These presumptions were based in large part on the notion that the father would be unlikely to play a significant role in the child's upbringing.

The Court had previously followed these presumptions in the context of section 309(a) and (c). In Caban v. Mohammed, 441, U.S. 380, 382, 394 (1979) [PDF version], the Court stated that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for children born outside of marriage.

However, in Lehr v. Robertson, 463 U.S. 248 (1983) [PDF version], in a different context, the Court suggested that laws distinguishing between unwed mothers and fathers may not be constitutional as applied where the mother and father are similarly situated with regard to the child. This decision was relied upon in Nguyen v. INS, 533 U.S. 53, 62-64 (2001) [PDF version].

Justice Ginsburg explained that subsequent to Caban in 1979, the Court has come to understand that its line of reasoning had a “constraining impact.” In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003) [PDF version], the Court held that laws that rely on “stereotypes about women's domestic roles” create a “self-fulfilling cycle of discrimination.” In addition to constraining women, the decision noted that such laws deprive men who want to exercise responsibility for caring for their children of the opportunity to do so.

Analyzing and Rejecting Government's Arguments

Justice Ginsburg noted that the Government relied on three decisions in arguing that the gender-based distinctions in section 309(a) and (c) did not run afoul of equal protection:

  • Fiallo v. Bell, 430 U.S. 787 (1977) [PDF version];
  • Miller v. Albright, 523 U.S. 420 (1998) [PDF version]; and
  • Nguyen v. INS, 533 U.S. 53, 62-64 (2001).

Justice Ginsburg rejected the Government's reliance on all three cases.

First, she explained that Fiallo involved a provision of the 1952 INA that gave special immigration preferences to alien children of U.S. citizen or lawful permanent resident (LPR) mothers (married or unmarried). However, these preferences dealt with entry, not citizenship, and the Court noted Congress's broad power to admit or exclude aliens. Furthermore, in Fiallo, the Court applied minimal scrutiny (rational-basis) in recognizing Congress' broad authority. Justice Ginsburg noted that, in the instant case, the Court was not disclaiming “the application of an exacting standard of review.”

Both Miller and Nyguen involved the requirement that unwed U.S. citizen fathers were required to formally acknowledge parenthood of foreign-born children in order to transmit citizenship. There is no corresponding requirement for unwed U.S. citizen mothers. In Nyguen, the Court upheld the requirement as justifiable, holding that it did not run afoul of equal protection (it did not reach an opinion in Miller). However, Justice Ginsburg noted that Morales-Santana did not challenge the parental-acknowledgement requirement. Furthermore, Morales-Santana's father had married his mother and had satisfied the requirement acknowledging parenthood in any case. Justice Ginsburg noted that the issue brought forth by Morales-Santana was clearly distinguishable from the issue in Nyguen.

The Government argued that the gender-based distinctions in sections 309(a) and (c) should survive heightened scrutiny because the gender-based disparity satisfied the following two objectives:

  1. To ensure a connection between the child to become a citizen and the United States; and
  2. To prevent statelessness.

For the foregoing reasons, Justice Ginsburg set forth why neither of these claimed objectives survived heightened scrutiny.

Regarding the first point, the Government took the position that, at the time of the birth of a child to unmarried parents, the child's only “legally recognized” parent is the mother. The unwed father could then assume a role of parental responsibility only some time post-birth. The Government argued, therefore, the longer residency requirement for the father was justified because the mother would as a result necessarily have a stronger influence on the child. .

Justice Ginsburg took the position that traditional assumptions that unwed fathers would not accept parental responsibility underpinned the Government's argument. She noted that this “lump characterization” no longer survived equal protection inspection.

Justice Ginsburg explained that, even granting the Government's interpretation of Congressional objectives, the statute would still not satisfy the intended interest. For example, she explained that, in the case of a child born to an unwed U.S. citizen mother, the child could derive citizenship if the mother was continuously present for one year at any time prior to the child's birth. Accordingly, Justice Ginsburg noted that a child could derive citizenship in such an event if the mother married the child's father immediately after birth and never returned with the child to the United States. Conversely, in the instant case, Morales-Santana's father was unable to confer citizenship because he “fell a few days short” of meeting the longer physical presence requirements in the old section 301(a)(7). Moreover, the result would be the same even where the father acknowledged paternity on the day of the child's birth and raised the child in the United States. Accordingly, Justice Ginsburg found that the statutory scheme was not a close enough “means-end fit” to survive heightened scrutiny.

Next, Justice Ginsburg addressed the Government's second argument, that the gender-based distinctions were designed to reduce the risk of a foreign-born child becoming stateless. The Government took the position that it was substantially more likely that the foreign-born child of an unwed U.S. citizen mother would end up stateless than the foreign-born child of an unwed U.S. citizen father. However, Justice Ginsburg found that the Government again failed to show the substantially higher risk that it claimed.

First, Justice Ginsburg agreed with the Second Circuit that nothing in the 1940 Hearings or in reports on the 1940 and 1952 immigration acts referred to a goal of preventing statelessness. Rather, the justifications for the gender-based distinctions in section 309 of the INA were based on the assumption that the mother is the natural guardian of a child born outside of marriage.

Next, Justice Ginsburg found that the Government's risk-of-statelessness argument was “an assumption without foundation.” She cited to materials from around the time of the passage of the 1940 and 1952 Acts indicating that, in most countries, mothers were either prohibited from transmitting citizenship to children born abroad (or, in some cases, even in their own countries), or the laws were silent on the issue. Justice Ginsburg cited to an amicus brief filed by Scholars on Statelessness which noted that both in 1940 and 1952 and today the risk of statelessness is arguably higher for children born abroad to unwed U.S. citizen fathers than it is to children born abroad to unwed U.S. citizen mothers. Accordingly, Justice Ginsburg found that it made little sense to argue that the gender-based distinction was enacted to prevent statelessness among the foreign-born children of unwed U.S. citizen mothers while ignoring that the actual risk of statelessness was greater for such children of unwed U.S. citizen fathers.

Justice Ginsburg also cited to a report by the United Nations High Commissioner for Refugees (UNHCR) from 2014 on ending statelessness within 10 years [PDF version]. The UNHCR took the position based on its study that gender-based distinctions in citizenship and nationality laws are actually a major cause of statelessness and, accordingly, made eliminating such distinctions a part of its campaign. While this report is in no way binding on U.S. law, Justice Ginsburg noted that it is in line with studies going back nearly 100 years that suggest that the Government's objective in preventing statelessness is not advanced by the structure of section 309 of the INA.

For this reason, Justice Ginsburg found that the Government's argument regarding prevention of statelessness also did not survive high scrutiny.

Court Applies Stricter Rules to Everyone

Although the Court found that Morales-Santana's father had been denied equal protection by the structure of section 309(a) and (c), it held that it was unable to grant Morales-Santana the relief that he sought - citizenship.

Citing to Califano v. Westcott, 443 U.S. 76, 89 (1970) [PDF version], Justice Ginsburg explained that the Court had two options to remedy the equal protection violation:

  1. Apply the stricter residency rules for unwed U.S. citizen fathers to unwed U.S. citizen mothers; or
  2. Apply the more lenient residency rules for unwed U.S. citizen mothers to unwed U.S. citizen fathers.

In Hecker v. Mathews, 465 U.S. 728, 740 (1984) [PDF version], the Court held that the mandate of equal treatment may be accomplished by either withdrawing benefits from the favored class or extending benefits to the excluded class. Justice Ginsburg explained that, in accord with Levin v. Commerce Energy, Inc., 560 U.S. 413, 426-27 (2010) [PDF version], the decision of which approach to implement “is governed by the legislature's intent, as revealed by the statute at hand.” In Westcott, 443 U.S., at 89, the Court took the position that extending benefits to the excluded class is “ordinarily” the proper course.

In Welsh v. United States, 398 U.S. 333 (1970) [PDF version] (Harlan, J., concurring in result), Justice John Marshall Harlin II took the position, subsequently adopted in later decisions, that courts should consider whether the legislature would have struck the exception or broadened it had it known that the exception would not pass muster. Justice Harlin insisted that Courts should “measure the intensity of commitment to the residual policy” and also “consider the degree of potential disruption to the statutory scheme that would occur by extension as opposed to abrogation.”

Justice Ginsburg found that the longer physical-presence requirement “evidences Congress' recognition of 'the importance of residence in the country as the talisman for dedicated attachment.” Rogers v. Bellei, 401 U.S. 815, 835 (1971) [PDF version]. Justice Ginsburg noted that this evinced a strong commitment to the residual policy. Furthermore, Justice Ginsburg noted that applying the exception to everyone would present a serious disruption to the statutory scheme. For example, were unwed mothers and fathers held only to the 1-year residence requirement, it would seem to be irrational to retain the longer requirement for when a U.S. citizen parent is married. Justice Ginsburg noted that the Court could not “sensibly attribute to Congress” that it would have sought to disadvantage children born to married parents.

For those reasons, the Court held that Congress would have likely done away with the section 309(c) exception rather than extend section 309(a) to all.

Conclusion

The Court affirmed the Second Circuit with regard to finding unconstitutional the disparate treatment of unwed U.S. citizen mothers and fathers of children born abroad. However, it reversed the remedy imposed by the Second Circuit that the exception should apply to all. Instead, the Court held that, unwed U.S. citizen mothers will now be subject to the same effective residency requirements that apply or applied to unwed U.S. citizen fathers in order to confer citizenship on their foreign-born children. Accordingly, Morales-Santana was not granted citizenship, despite having pervailed in his equal protection argument.

Concurring Opinion: Justice Thomas

Justice Clarence Thomas wrote an opinion concurring in the judgment in part that was joined by Justice Samuel Alito.

Justice Thomas agreed with Justice Ginsburg that the Court was not equipped to remedy the injury claimed by Morales-Santana. First, he agreed that extending the 1-year residence requirement to unwed fathers was not the appropriate remedy under the Court's precedent. Second, he argued that even if it was, he was skeptical that the Court had the “power to … confer[] citizenship on a basis other than that prescribed by Congress.” Nyguen v. INS, 533 U.S., at 73 (Scalia, J., joined by Thomas, J., concurring).

Justice Thomas took the position that this ruling would have been sufficient, and that it was unnecessary to rule on the equal protection claims raised by Morales-Santana and whether he had third-party standing to raise a claim on behalf of his father. For this reason, Justices Thomas and Alito concurred in judgment only.

In footnote 21 of her decision, Justice Ginsburg referenced Justice Thomas's concurring opinion. She cited to Hecker v. Matthews, 465 U.S., at 729 (1984), in reiterating that discrimination in and of itself “perpetuates 'archaic and stereotypic notions'” incompatible with the equal treatment guaranteed by the U.S. Constitution.

What the Decision Means Going Forward

Going forward, unwed U.S. citizen mothers who give birth abroad will have to meet the section 309(a) 5-year residency requirement — previously only applicable to fathers — in order to confer citizenship. It is worth noting that other rules that apply only to fathers, such as proof of paternity, are unaffected by Morales-Santana.

Before having a child abroad, a U.S. citizen parent or parents should consult with an attorney to learn about how the derivation of citizenship rules may apply in a specific case. In general, any claims referring to derivation of citizenship should be brought to an attorney.