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SCOTUS Strikes Down Gender Discrimination Against Men, Everyone Wins


Thanks to Ted Cruz, we all now know that children born abroad to married U.S. citizen-parents are automatically granted citizenship. But what happens when a child born abroad to an unmarried couple has one parent who is a U.S. citizen, and one parent who is not? Well, strangely, until today, it all depended whether the foreign parent is the child’s mom or the child’s dad.

The rule, 8 U. S. C. §1401(a)(7) (now known as 1401(g), gives citizenship at birth to a child born abroad, so long as the citizen-parent has ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. Okay, so that starts out sounding pretty reasonable –a child born on foreign soil only gets automatic U.S. citizenship if that child’s citizen-parent spent a while here. In other words, it’s not enough that the parent was simply a citizen—but requires also that, for at least a decade, that parent called America “home.” But it gets weird in the technicalities. Under §1409(c), that ten-year requirement is reduced to just one year as long as we’re talking about the year prior to the child’s birth, and as long as we’re talking about the child’s unmarried  mother, and not the child’s father. If you’re thinking that this sounds kind of unfair to fathers, you’re definitely getting it. Here’s how it played out for one family:

Luis Ramón Morales-Santana was born in the Dominican Republic. His father was José Morales – an American citizen, who was born in Puerto Rico, and lived there until 20 days before his 19th birthday. Just to pre-empt any confusion, Justice Ginsburg reminded everyone, “Puerto Rico was then, as it is now, part of the United States.” At almost 19,  José moved to the Dominican Republic to work as a mechanic for a U. S. company in the then-U.S.-occupied Dominican Republic. Luis’ mother is Yrma Santana Montilla, a Dominican woman. The couple married after Luis was born.

Because José fell just short of the “five years after attaining 14” requirement, Luis was denied U.S. citizenship under §1401(a)(7). Context, of course, matters. The question of Luis’ citizenship arose because he was convicted of several crimes, and in 2000, the U.S. government ordered Luis removed. Luis raised the argument that removal was inappropriate, because he was a U.S. citizen (an argument that was rejected by the Immigration Board of Appeals). Keep in mind, though, that while this particular case involved citizenship and removal for a person with a criminal background, the rule itself applies to any child born abroad to parents of mixed citizenship.

In its 8-0 decision today, The Supreme Court (minus Neil Gorsuch, who was still benched for this one), called out 8 U. S. C. §1401(a)(7) and §1409(c) for their failure to treat men and women equally. Writing for the Court, Justice Ruth Ginsburg reminded everyone that it’s 2017, and we no longer assume that fathers care less about their kids than do mothers. RBG wrote:

“Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we de­clared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an ‘exceedingly persuasive justification.'”

And let’s be clear – there is no “exceedingly persuasive justification” that anyone is buying on this one. Ginsburg was clear:

“In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children.

The gender-based distinction infecting §§1401(a)(7) and 1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled.”

Like a teacher handing back an incomplete assignment, Ginsburg and the Court handed the faulty legislation back to Congress with an almost audible sigh:

“Nevertheless, we can­ not convert §1409(c)’s exception for unwed mothers into the main rule displacing §1401(a)(7) (covering married couples) and §1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U. S.-citizen parent.”

Despite this ruling, however, the Court did not rule that Luis should be a citizen, nor did it say that the same one-year rule for unmarried women should apply to men. The Court said that they cannot simply rewrite the law, and there is strong support that when the law goes back to Congress, they would sooner eliminate the preferential treatment for women, rather than extend it to men. While the ruling may not benefit Luis, it does tell Congress that going forward, they have to come up with a new rule, and they cannot have different rules for different people, based on gender. In the meantime, the current rule for men (which had since been changed to five years) shall apply to women as well.

Today’s ruling is a rare victory for both men and women. That the Supreme Court has declared fathers to be on equal footing with mothers is not insignificant in any legal context. For decades, fathers suffered the effects of gender stereotyping and discrimination in child custody cases; the striking down of §1409(c)’s unequal treatment is an important effort to bring all federal law into today’s world.  And the fact that SCOTUS’ ruling derives from throwing out “the once entrenched principle of male dominance in marriage,” is another win in the “smashing the patriarchy” column.

I’d love to say that gender equality rang through the halls of every part of the Supreme Court today, but Justices Thomas and Alito (of course) did put a bit of a damper on things. In a short concurrence, the two agreed that SCOTUS lacked the power to wipe away a Congressional statute, and were conspicuously taciturn on the issue of whether they believed statutes at issue violated equal protection. While their votes helped Mr. Morales-Santana’s case, they did little to add to the establishment of true gender equality. Perhaps as men without children born on foreign soil, they have yet to face a situation where gender discrimination disadvantaged them.

[Image via Shutterstock]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos