Supreme Court Justice Ruth Bader Ginsburg cited her own work from her time as a civil rights lawyer as ruled on Monday that laws that treat unwed fathers and mothers differently when granting citizenship to children born overseas are unconstitutional.
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 US -citizen fathers. Writing for six of the eight participating justices, Justice Ruth Bader Ginsburg said the differing requirements were "stunningly anachronistic". And a favorite Ginsburg strategy for eliminating gender-based distinctions in the law was to target laws that - like the one at issue in this case - discriminated against men.
But an American mother must only have lived in the US continuously for one year before giving birth to a child to meet the requirement.
In the ruling, the Supreme Court said that until Congress revises the law, both women and men will be covered by the five-year requirement.
She said federal law indicated Congress would have preferred to fix the discrepancy by instead applying the longer residency period to the children of American mothers.
In 2000, when the government attempted to deport him following convictions for robbery and attempted murder in 1995, Morales-Santana claimed he should be considered a citizen. Justice Neil M. Gorsuch was not on the court when the case was argued, and took no part in the decision. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: "The alien father, who might transmit foreign ways, was presumptively out of the picture". After oral argument, the justices were deadlocked 4-4, which left the lower court's ruling in the government's favor in place. Ginsburg was joined by Chief Justice John Roberts, and Justice Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Here, she observed, the more favorable treatment for unmarried USA -citizen mothers rested on the idea that an unmarried mother was "the child's natural and sole guardian".More news: British PM May's statement in Downing Street
The case is Sessions v. Morales-Santana.
Having concluded that the different treatment of unmarried US -citizen mothers and fathers violated the Constitution, the justices now faced an even tougher question, which had been at the forefront of their minds during last year's oral argument: What can or should they do about the violation? "Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children". 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.
But while the court struck down the gender differences in the law, Ginsburg said the longer five-year period should continue apply to both mothers and fathers until Congress decides on a different length of time.
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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