The Supreme Court held today that immigration laws that make it easier for the children of American mothers to obtain citizenship than the children of American fathers are unconstitutional. However, at the same time, the Court revised the laws in favor of the stricter, father-based rules, meaning that it made our immigration policy more equal and more cruel at the same time.
The decision, Sessions v. Morales-Santana, was written by Justice Ruth Bader Ginsburg, who wrote that the difference in the application of citizenship was “stunningly anachronistic” and “date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are.”
The ruling centers on a specific set of laws that apply to how citizenship is conferred to children who are born abroad and out of wedlock in situations where one parent is an American citizen.
Here is the current situation, which BuzzFeed spells out:
A child born abroad to a US-citizen father only automatically becomes a US citizen at birth if his or her father lived in the US for 10 years, at least 5 of which were after the man turned 14. A child born abroad to a US-citizen mother, on the other hand automatically becomes a US citizen at birth so long as her or his mother spent one year in the US.
If that all sounds complex and more than a little bit random, welcome to U.S. immigration policy!
This regulation is spelled out in the Immigration and Naturalization Act (INA), portions of which were written in the 1940s. It contains many of the outdated ideas about gender that could be expected from a product of its time. This is what the Justice Ginsburg honed in on when providing the Court’s reasoning. The INA laws, she said, assumed that,“in marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child.”
The court, however, decided not to apply the more lax citizenship rule to children of U.S. citizen fathers. Instead, the rule that applies to American fathers will now apply to American mothers as well, removing any sort of gender privilege. The decision means that Luis Morales-Santana—the man who brought the suit because he had been denied citizenship thanks to his father not living in the U.S. for long enough to qualify as a citizen—will still be denied it.
As ThinkProgress explained:
Unlike most equality suits, Morales-Santana involves a law that applies a relatively harsh rule in nearly all cases, and a more lenient rule in relatively few cases. Congress clearly intended the 10-year rule to be, well, the rule, and the 1-year rule to be the exception.
Under these unusual circumstances, the Court concludes, the proper course of action is to apply the harsher rule universally, rather than rewriting the law to apply the more lenient rule more broadly. That’s bad news for Morales-Santana, as it is bad news for child born abroad to unmarried American mothers for the foreseeable future.
The ball is now in Congress’ court, with the Court tasking them to update the INA laws so that no gender bias is reflected in determining citizenship.