The Supreme Court on Monday 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.
Under the law, USA citizen fathers have to spend at least five years in the states before the child could become a citizen, while the mother only had to spend one year.
Ginsburg, known for her work on gender equality before she became a jurist, wrote for the court that in light of the Supreme Court's various rulings regarding the equal protection guarantee since 1971, having separate "duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic". And a favorite Ginsburg strategy for eliminating gender-based distinctions in the law was to target laws that - like the one at issue in this case - discriminated against men. If the father is American and the mother isn't, the residency requirements are more stringent, now requiring the father to have spent five years in the U.S. But his father did not satisfy the five-year requirement.
Though it declared the rule unconstitutional, the Supreme Court left it up to Congress to determine the equal treatment of children born to a US citizen and their unwed partner.
The citizenship issue became a crucial one when the federal government initiated proceedings to deport Morales-Santana after a series of criminal convictions, and Morales-Santana countered that he was a US citizen because his father had been one.
New Justice Neil Gorsuch took no part in considering or deciding this case. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: "The alien father, who might transmit foreign ways, was presumptively out of the picture". A child born overseas to a US-citizen mother, on the other hand automatically becomes a USA citizen at birth so long as her or his mother spent one year in the US.
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.
Under the Immigration and Nationality act of 1952 as originally written, a child born outside of the United States to an unwed citizen father and a non-citizen mother has citizenship at birth only if the father was present in the United States for a period totaling at least 10 years, with at least five of those years occurring after the age of 14. Ginsburg's opinion was joined in full by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
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. 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".
Dominican-born Morales-Santana was admitted to the United States in 1975 as a lawful permanent resident, but he did not bring a claim for derivative citizenship until the United States ordered him deported in 2000.
"Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender", Ginsburg wrote.
Ginsburg said it's up to Congress to decide whether to extend the shorter residency requirement to unwed fathers.