The Supreme Court’s decision in Sessions v. Morales-Santana is something of a paradox: It is, at once, a groundbreaking victory for gender equality and a crushing defeat for Luis Ramón Morales-Santana himself. Justice Ruth Bader Ginsburg’s opinion strikes a fatal blow against sex discrimination, but it likely leaves the man who led the charge against this unlawful discrimination out in the cold.
Let’s start with the good news. As of Monday morning, one of the most sexist federal laws currently on the books can no longer be enforced. The statute grants citizenship to a child born abroad to an unmarried United States citizen but imposes a residence requirement on the parent. The requirements vary by sex: A father must have lived in the U.S. for five years before he can pass along his citizenship to offspring, at least two of those years being after the age of 14. A mother, however, must have lived in the U.S. for just one year.
At the time Morales-Santana was born, a father had to have lived in the U.S. for 10 years before his child’s birth, at least five after the age of 14, to pass along citizenship. Morales-Santana’s dad, José, was an American citizen who fathered Luis while living abroad. Luis moved to the U.S. at age 13 and has lived here ever since. He thinks of himself as a citizen. But in 2000, the government attempted to deport him, arguing that José had not passed along his citizenship to Luis. The reason? José left the U.S. 20 days shy of his own 19th birthday, barely missing the five-years-after-age-14 residence requirement.
Luis fought his deportation in court. He claimed that the disparate rules for fathers and mothers violated the equal protection component of the 5th Amendment’s Due Process Clause. Eventually, the 2nd U.S. Circuit Court of Appeals agreed, ruling that the law amounted to unconstitutional sex discrimination. To fix the problem, the court applied the standard for mothers to José, effectively granting Luis citizenship.
On Monday, the Supreme Court affirmed the first part of that decision, holding that the different standards ran afoul of equal protection. In her majority opinion, Ginsburg wrote that a law which “differentiates on the basis of gender” is subject to “heightened scrutiny”: To survive, it must serve “important governmental objectives” and be “substantially related to the achievement of those objectives.” The justification for the law must be “exceedingly persuasive,” and the sex-based classification “must substantially serve an important governmental interest today.” In support of the latter claim, Ginsburg cited Obergefell v. Hodges’ declaration that “new insights and societal understandings can reveal unjustified inequality … that once passed unnoticed and unchallenged.”
To evaluate this particular law, Ginsburg explored its history—and uncovered a chronicle of rank sexism. The statute, she wrote, reflects the “once habitual, but now untenable” assumption that “in marriage, husband is dominant, wife subordinate,” while an “unwed mother is the natural and sole guardian of a nonmarital child.” This “once entrenched principle of male dominance in marriage” led to a strange regime in which male citizens automatically conferred citizenship onto their alien wives—but female citizens who married aliens were expatriated. Unwed female mothers, on the other hand, were viewed as the “natural guardian” of their children. Unwed fathers were “presumptively out of the picture.”
Our current regime was inspired by a belief that these fathers “care little about, and have scant contact with, their nonmarital children.” Congress surmised that unwed male citizens would father a child then scram, allowing their offspring to become infected by foreign influence. Apparently, Congress believed that imposing a longer residence requirement on fathers would somehow cure this issue. But Congress saw no need for a similarly stringent requirement for unwed citizen mothers: It presumed that moms would stick around and exert American influence on their kids even after living here a shorter time.
Aware that these stereotypes could not possibly pass heightened scrutiny, the government made up two new ones to prop up the law in court. First, the government argued that unwed mothers are more likely to take responsibility for their children than unwed fathers. “That assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children,” Ginsburg wrote. “Lump characterization of that kind” simply cannot pass “equal protection inspection.”
Second, the government claimed that if the children of unwed female U.S. citizens abroad were denied citizenship, they would be at a greater risk of “statelessness”—holding citizenship of no country—than the children of unwed male citizens. In reality, this claim is incorrect: According to the United Nations, the children of unmarried moms and dads are at heightened risk of statelessness, a risk that would actually be diminished by “the elimination of gender discrimination” in citizenship laws worldwide. The government’s argument is wrong. And its efforts to maintain sex discrimination, Ginsburg explained, “cannot withstand inspection under a Constitution that requires the government to respect the equal dignity and stature of its male and female citizens.”
Now for the bad news: To resolve this flaw, the court struck down the special rule for unwed mothers, applying the five-year residence requirement to all parents. In doing so, it stripped Morales-Santana of the citizenship he had been granted by the 2nd Circuit. The court urged Congress to revise the law in a constitutional manner, potentially providing relief for people like Morales-Santana. But until it does, he faces the threat of deportation.
As Ian Samuel notes at Take Care, this remedy is oddly cruel; the court could have instead applied the exception for unwed mothers to all parents. Moreover, the court’s solution could exacerbate the problem of statelessness by making it more difficult for the children of unwed mothers living abroad to gain U.S. citizenship. This distasteful remedy is meant to be temporary, lasting only until Congress settles on “a uniform prescription that neither favors nor disadvantages any person on the basis of gender.” But there’s no guarantee Congress will act promptly. I suspect this compromise was the price of Chief Justice John Roberts’ vote, and probably Justice Anthony Kennedy’s as well. Regardless, it’s a sour and unsatisfying solution that, for now, creates more problems than it solves.
Was Monday’s decision a hollow triumph, a win for theoretical equality at the expense of real justice? I don’t believe so. To be sure, the court’s remedy is disappointing, even cold-hearted. But the constitutional analysis in Ginsburg’s opinion is still a liberal coup. Ginsburg fused the gender equality standard with Obergefell’s “equal dignity” rationale, demanding a justification for sex discrimination that comports with our contemporary sense of fairness. This fundamentally progressive test should prevent the government from citing anachronistic and unfounded prejudices to justify discrimination. Trans people, in particular, stand to benefit from Ginsburg’s forward-looking rule, which makes clear that archaic phobias and bad-faith paternalism cannot trump equal protection. The story of Morales-Santana may end poorly for Morales-Santana himself. But Ginsburg’s opinion remains a ringing endorsement of gender equality that evolves along with society.