Gender-Based Citizenship Rules Unconstitutional, Supreme Court Says

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The Supreme Court took aim Monday at a gender distinction that makes birthright citizenship more hard for a child born overseas out of wedlock if only the father, not the mother, is an American.

Justices Clarence Thomas and Samuel Alito agreed with their colleagues on at least one point: The court should not extend the shorter residency requirement to apply to the children of unmarried USA -citizen fathers.

Justice Ruth Bader Ginsburg, writing for the court, noted that the laws dictating citizenship requirements for those born overseas to unmarried parents - found in the Immigration and Nationality Act - "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are".

Along the way, 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.

The government had urged the justices to uphold the law's gender-based differences.

But an American mother must only have lived in the USA continuously for one year before giving birth to a child to meet the requirement. Also, the father must be older than 14 for at least five of those years.

For unwed US mothers in the same situation, the requirement was only one year.

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Justice Neil Gorsuch did not take part in the case, which was argued before his confirmation to the court. His mother was a citizen of the Dominican Republic and his father was a U.S. citizen who had not spent more than five years in the United States after his 14th birthday. That this citation appears in an opinion joined by the chief justice shows the Obergefell ruling is gliding into the mainstream of the Court's jurisprudence, unlike other 5-4 rulings which a disgruntled minority prefers to keep at the margins.

The law imposed different standards for acquiring citizenship for the offspring of an unwed US citizen who has a child with a citizen of another nation.

The requirement for an unwed American mother is that she has lived in the US continuously for one year before giving birth.

The case is Lynch v. Morales-Santana, 15-1191. S. -citizen and one alien parent, Wednesday or unwed. But those kinds of "overbroad generalizations", she continued, can be harmful, in two related ways: They perpetuate stereotypes that require women "to continue to assume the role of primary family caregiver" while at the same time working against men who do "exercise responsibility for raising their children".

Passed in 1952 by Congress, the Immigration and Nationality Act says an American man can not pass on citizenship to his children unless he lived in the United States for 10 years prior to their births. At the same time, the legislation precludes citizenship transmission by a USA -citizen father who falls a few days short of meeting §1401 (a)(7)'s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child's birth and raises the child in the United States.

Justices Clarence Thomas and Samuel A. Alito Jr. did not join Ginsburg's reasoning, and agreed only in overturning the 2nd Circuit's relief to Morales-Santana.

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