For four decades, litigants have been posing the same question to the Supreme Court: Do fathers have the same right as mothers to transmit American citizenship to their children? The Supreme Court has been asked repeatedly over four decades to answer some version of the same question: do fathers have the same right as mothers to pass on American citizenship to their children? The answer has always been “no,” with explanations rooted in the basest type of sexism that the Court decries in other contexts.  But in a recent ruling, in Sessions v. Morales-Santana, the Court said “yes,” although it stopped short of providing a remedy that for the unconstitutional harm it identified.  This case illustrates how the implications of parentage can differ by context—and why recognition of a legal parent-child relationship matters deeply.

Luis Ramón Morales-Santana was born in the Dominican Republic but has lived in the United States since he was 13.  Facing deportation, he asserted U.S. citizenship at birth because his biological father was a U.S. citizen.  Babies born in the U.S. acquire citizenship as a constitutional birthright (jus solid), but those born abroad acquire it from birth only if they have at least one citizen-parent who meets the statutory criteria for transmitting it (jus sanguine).  Luis’s father was an American citizen, and there is no question that he was both a legally acknowledged and functional father; nonetheless, he could not transmit citizenship to his son.  He moved to the Dominican Republic for work just 20 days shy of his nineteenth birthday, but the law at the time required that he be physically present in the U.S. for ten years, five of which had to occur after his fourteenth birthday.   He was in the U.S. for 19 years, but those 20 days would deprive his son, born forty-three years later, of American citizenship.  Had his mother been the American citizen, however, the outcome would have been different.  Although the presence requirements have since been shortened for unwed fathers to five years, only two of which must be after the fourteenth birthday, unwed mothers can transmit citizenship as long as they have been physically present for one year at any time prior to a child’s birth.  (A fuller explanation of the statutory criteria for citizenship-by-descent can be found in a longer piece I’ve written here.)

In Sessions v. Morales-Santana, the Supreme Court agreed with Luis that the physical presence requirement was not rooted in any relevant biological difference and was not justified by an ostensible concern with statelessness.  Invalidating this provision may seem obvious, given the Court’s long list of precedents in which it has struck down sex-based classifications in state and federal law.  Yet, the Court had upheld other unjustifiable distinctions in the same context.

In Fiallo v. Bell (1977), the Supreme Court upheld a set of rules giving alien children (those who did not acquire citizenship at birth) of citizen or lawful permanent resident mothers special immigration preferences that were not available to the children of fathers in the same categories.  In Miller v. Albright (1998), the Court took up the question whether the requirement that unwed mothers but not unwed fathers formally acknowledge their children during their minority in order to transmit citizenship to them, but no majority opinion emerged.  The Court thus took up the same question in Nguyen v. INS (2001), in which it held that the differing burdens were constitutional because while mothers were easily identifiable at a child’s birth, fathers are not. They might not be present at the birth, and a man who is present might not be the father.  The Court agreed (though I do not) that Congress’s interests in ensuring adequate ties between the child and the United States and in avoiding fraudulent claims of citizenship were closely served by the disparate rules for recognizing mother-child versus father-child relationships.  The truth is, however, that those interests could have been served by a standard that imposed fewer unfair burdens on fathers and their children.

The opinion in Morales-Santana is refreshing to the extent it rejects broad stereotypes about fathers—and their presumed lack of interest in and connection to their children.  In the majority opinion, Justice Ginsburg draws on that long line of equal protection cases—many of which she argued or orchestrated before she became a judge—to reject the unequal burden imposed on unwed fathers versus unwed mothers.  Physical presence in the United States tells us nothing about the biological relationship between a parent and child.  No biological difference could explain disparate number of years required in the United States prior to the child’s birth.  Citing the decision below, Justice Ginsburg wrote that “a man needs no more time in the United States than a woman ‘in order to have assimilated citizenship-related values to transmit to [his] child.’”  Rather, the distinction flew in the face of decades of rulings designed to eliminate archaic generalizations and stereotypes from American law.

The provision at issue in Morales-Santana, enacted in 1952, is perhaps a creature of its time—a time when unwed fathers were at best only loosely tied to their children by law.  But it cannot stand today, with the increased scrutiny given to sex-based classifications.  Justice Ginsburg concluded that the disparate rules were animated by the assumption that mothers play a different role in children’s lives than fathers. The shorter physical presence requirement makes sense only if one assumes that children will be naturally bonded to their mothers—and thus not likely to fall prey to the competing national commitments of the alien father even if the mother’s ties to the United States are relatively weak.  And one must also assume that children will not have the same natural bond with their fathers, thus making it more important that the father have strong ties to the United States—demonstrated through a significant period of physical presence prior to the child’s birth.  In other words, if parent is the connection between child and country, at least one side of the equation needs to be strong.

Good for Justice Ginsburg to recognize the rank sexism, but, unfortunately, the Court’s remedy for inequality was to “level down” by imposing the same burdens on unwed mothers.  This does nothing to help Luis Morales-Santana, who will still face deportation despite the unlawful sex discrimination.  (Good critiques of the remedy can be found on Slate, Gender and the Law Prof Blog, and Dorf on Law.)  Baby steps to equality?