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13 June 2017, 07:23 | Cynthia Sparks
Mark Wilson Getty Images
The Supreme Court took aim Monday at a gender distinction that makes birthright citizenship more hard for a child born overseas out of wedlock if only the father, not the mother, is an American. In the meantime, the five-year requirement "should apply, prospectively, to children born to unwed USA -citizen mothers".
Justice Ruth Bader Ginsburg said the gender line Congress drew "is incompatible with the Constitution's guarantee of the equal protection of the laws to all persons".
The Supreme Court has struck down part of an unusual law that treats fathers and mothers differently when it comes to conferring citizenship on children born outside the U.S.
"Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an 'exceedingly persuasive justification, '" Ginsburg wrote, quoting her own opinion in USA v. Virginia.
But an American mother must only have lived in the US continuously for one year before giving birth to a child to meet the requirement. But his father did not satisfy the five-year requirement.
She said federal law indicated Congress would have preferred to fix the discrepancy by instead applying the longer residency period to the children of American mothers. The U.S. Justice Department sought to defend the law and asked the high court to take the case. His father, who was unwed when Morales-Santana was born, was 20 days short of satisfying the five-year residency requirement. After oral argument, the justices were deadlocked 4-4, which left the lower court's ruling in the government's favor in place.
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg's opinion. Unwed American mothers, meanwhile, are only subject to a 1-year US residency requirement to give their children USA citizenship.
The law imposed different standards for acquiring citizenship for the offspring of an unwed USA citizen who has a child with a citizen of another nation.
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.
Congress can not legislate based on "once habitual, but now untenable" stereotypes about male domination, wrote Justice Ruth Bader Ginsburg, in Sessions v. Morales-Santana. Here, she observed, the more favorable treatment for unmarried US -citizen mothers rested on the idea that an unmarried mother was "the child's natural and sole guardian".
"Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end", Ginsburg wrote.
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 USA -citizen parent would not be "stateless" - that is, lacking any citizenship at all.
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.
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