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  • Article: Supreme Court Holds that the Constitution Applies to Gender Distinctions in Derivative Citizenship Laws By Kevin R. Johnson

    Supreme Court Holds that the Constitution Applies to Gender Distinctions in Derivative Citizenship Laws


    This morning, the Supreme Court decided Sessions v. Morales-Santana and held that the Constitution applies to gender distinctions in the derivative citizenship laws.* Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote the opinion for the Court.* Justice Thomas, joined by Justice Alito, concurred in the judgment in part.* Justice Gorsuch took no part in the consideration or decision in the case.

    The issues in the case were:* (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.

    The U.S. Court of Appeals for the Second Circuit ruled that the laws governing citizenship for the children of unmarried parents violated the father’s constitutional right to be treated the same as a U.S.-citizen mother. (The statute was amended in 1986 to reduce the number of years that a father must have lived in the United States, but it continues to apply different standards for men and women.) The court of appeals declared Morales-Santana a U.S. citizen.

    Two Supreme Court cases previously raised the question of the constitutionality of the requirement that unwed U.S. citizen fathers, but not mothers, must formally acknowledge parenthood of their foreign-born children in order to transmit citizenship.* In Miller v. Albright (1998),*a majority of the justices had not been in agreement.*In another case, Nguyen v. INS (2001), the Court applied rational basis review to uphold the*gender distinction.* The Court found those cases, as well as Fiallo v. Bell (1977), upholding gender distinctions in admissions, were not controlling.

    Justice Ginsburg noted that the statutory provisions in question "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."* (citations omitted).* *The immigration and nationality laws historically have been filled with distinctions based on gender stereotypes, which Justice Ginsburg reviewed in detail.* The majority that gender distinctions today are subject to heightened scrutiny under the Equal Protection Clause.* "Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we [have] declared unconstitutional . . . ." In the majority's view, the gender distinctions are "stunningly anachronistic" and violate the Equal Protection guarantee.

    The majority, however, declined to rewrite the statute.* That is within the purview of Congress.* In the interim, the Court agreed with the U.S., government and ruled*that a five-year requirement under another subsection of the statute should apply prospectively to children born to unwed U.S.-citizen mothers.

    Justice Thomas, concurring in part in the judgment, would not decide the constitutional issues but would simply find that the Court could not provide the relief sought by Morales-Santana.

    Immigration law has been exceptional in its immunity from judicial review.* Sessions v. Morales-Santana is another step down the road toward applying ordinary constitutional norms to the immigration and nationality laws. Put differently, it is a step away from the "plenary power" doctrine, which historically has immunized the immigration laws from constitutional review and fits uncomfortably with modern constitutional jurisprudence.* Six justices agreed that the Equal Protection Clause applied to gender distinctions in the derivative citizenship laws.* We shall see whether the decision marks the beginning of a trend in this Term's immigration decisions -- several that raise constitutional questions.

    UPDATE (June 12, 4:00 PST):* Amy Howe on SCOTUSBlog*offers her analysis of the Court's opinion in Sessions v. Morales-Santana.


    This post originally appeared on Law Professor Blogs © 2014-2017 by Law Professor Blogs, LLC. All rights reserved.

    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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