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Justices strike down gender differences in citizenship law

Justices strike down gender differences in citizenship law

A unanimous Supreme Court on Monday stuck down a law that makes birthright citizenship harder for children of unwed fathers to obtain than children of unwed mothers.

Under the law, a child born outside the United States to an unwed citizen father and a non-citizen mother can become a US citizen at birth if the father lived in the USA for five years, with at least two of those years coming after the age of 14. That distinction, Justice Ruth Bader Ginsburg wrote for the court, is "stunningly anachronistic".

The Washington Post noted that 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". Based on the requirement to spend five years after the age of 14 in a USA territory, the father was a hair shy of the residency cutoff for men to confer birthright citizenship. Under such scrutiny, she went on, the different treatment of mothers and fathers in the citizenship laws at issue can not stand.

Ginsburg said the government's suggested outcome should apply in the interim: a five-year requirement under Section 1401 (a)(7), applicable to children born to unwed U. Justice Neil Gorsuch did not participate in the case.

Because the couple were unwed at the time, Moraes-Santana's citizenship hinges on a 20-day time period in 1919, just two years after the Jones Act conferred USA citizenship to Puerto Ricans born after April 24, 1898.

When Chief Justice John Roberts announced this morning that Justice Ruth Bader Ginsburg was the author of the opinion, it was a good sign for Morales-Santana.

Under federal law, a child born overseas to an unmarried American mother and non-American father could claim US citizenship if the mother lived continuously in the USA for a year at some point before the birth.

The high court split 4-4 on the same issue in 2011.

When Morales-Santana's father moved to the Dominican Republic in 1919, he was 20 days shy of his 19th birthday.

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? S. -citizen and one alien parent, Wednesday or unwed. At the time the statutes were enacted, "two once habitual, but now untenable, assumptions pervaded our nation's citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child".

The court was equally unimpressed with the government's second justification, which centered on a desire to ensure that a child born outside the United States to an unmarried US -citizen parent would not be "stateless" - that is, lacking any citizenship at all. Here, the court declined to do what the 2nd Circuit had done, and what Morales-Santana had urged them to do, which was to rule that the shorter residency requirement for unmarried mothers also applied to unmarried fathers.

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.

Justice Clarence Thomas agreed with the outcome, but wrote separately to say that it was not necessary to rule on the constitutionality of the law since Morales-Santana could not get any relief.