Last week, the Supreme Court heard arguments in Lynch v. Morales-Santana, a case that will decide whether the U.S. Immigration and Nationality Act (INA) unlawfully favors mothers over fathers of children born out-of-wedlock when granting citizenship to their children born abroad.

In determining whether a U.S. citizen parent may transfer his or her citizenship to a child born abroad, the INA requires that the parent have spent a certain amount of time in the U.S.—a physical presence requirement.  The amount of time required depends on whether both parents are U.S. citizens, and whether the child was born out-of-wedlock or to married parents.

At issue in Morales-Santana is that the INA establishes different requirements for U.S. citizen mothers of children born out-of-wedlock versus U.S. citizen fathers of such children. Luis Morales-Santana, the Respondent in the case, argues that this practice constitutes gender discrimination against his father, in violation of the equal protection guarantee of the Fifth Amendment.

­­­­­­­­Luis Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a foreign citizen mother who were not married at the time of his birth.  In order for Luis’s father to transfer his U.S. citizenship to his son, the father had to establish that he had been physically present in the U.S. for at least ten years, five of which had to be after the age of 14.

However, if it were Luis’s mother who was the U.S. citizen, she would have been able to transfer her U.S. citizenship after demonstrating only one continuous year of presence in the U.S. prior to her son’s birth.  Before moving to the Dominican Republic, Luis’s father had lived in the U.S. territory of Puerto Rico for almost nine years before the birth of his son.

Although his father could have met the lower standard required for U.S. citizen mothers, he could not meet the higher standard required for U.S. citizen fathers, and therefore could not bestow derivative U.S. citizenship on his son.

The government argued that any unequal treatment of U.S. citizen fathers as compared to mothers is justified because it serves two important government interests:  ensuring that a child born abroad to a U.S. citizen parent will have sufficiently strong ties to the U.S., and reducing the risk that such a child would be born stateless.  Morales-Santana responded that the short (one year of continuous physical presence) requirement for U.S. citizen mothers of children born out-of-wedlock does not correspond with the interest of ensuring strong ties to the U.S.

He argued further that the government itself has increased the risk of statelessness by establishing physical presence requirements in the first place. Morales-Santana urged the Court to recognize that the unequal treatment of U.S. citizen fathers versus mothers under Section 309 of the INA is based on “archaic and overbroad gender stereotypes” that view mothers as the “natural guardians” of a child. Such views have no basis in our modern understanding of gender roles.

At oral argument, the Justices seemed sympathetic to Morales-Santana’s arguments, specifically asking why the government could not have served the same stated  interests with gender neutral language.  Justice Ginsburg pointed out that an unmarried U.S. citizen mother and father seeking to transfer U.S. citizenship to a child born out-of-wedlock are similarly situated, except for their gender, and must be treated equally under the law.  She also noted that similar language distinguishing between mother-child and father-child relationships was rampant in U.S. laws until the 1970s, when the Supreme Court determined that such distinctions violated equal protection.

The Supreme Court’s decision in this case will make a powerful statement about how we protect the rights of U.S. Citizens born abroad, but also how we fight gender discrimination in U.S. law.

Photo by Davis Staedtler.


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