Monday, June 12, 2017

Sessions v. Morales-Santana: Two Cheers for Equality

On Monday, June 12, the Supreme Court released its opinion in Sessions v. Morales-Santana, an equal protection challenge to sex-based distinctions in citizenship law -- specifically, differential requirements regarding physical presence in the US of the citizen parents seeking to transmit citizenship to an out of wedlock, foreign born child.   The 6-2 opinion by Justice Ginsburg striking down the sex-based distinctions runs through the full litany of the Court's sex discrimination cases, most of which the Justice had a hand in one way or another -- from Reed v. Reed, where she argued as amicus, to U.S. v. Virginia, which she wrote as a justice.  Justices Thomas and Alito dissented, arguing that the Court should not have reached the merits.

Importantly for US human rights activists, the opinion took human rights law seriously.  For example, the government had argued that sex-based distinctions in US citizenship law were needed in order to avoid statelessness for some mothers.  The opinion rejects that rationale, citing at length the campaign of the UN High Commissioner on Refugees to address sex-discrimination in nationality laws as a component of its campaign against statelessness:

     "In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024.  Cogni¬≠zant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key compo¬≠nent of its project the elimination of gender discrimination in such laws. " (citations omitted)
 
According to the Court, "[i]n this light, we cannot countenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment of unmarried women and men with regard to transmission of citizenship to their children."  In addition, the Court cited the amicus brief filed by Equality Now and Human Rights Watch, et al., which provided comparative analysis of other nations' treatment of these issues.  It's significant that this was an opinion joined by Chief Justice Roberts, who has been more circumspect than the other justices in the majority in his support for comparative analyses.
 
Still, it was hard to celebrate this victory on the equal protection claim when  the remedial portion of the ruling denied any relief to the individual litigant -- and indeed, stripped future mothers of a benefit.  Instead of expanding benefits for men, as the Court noted was the "customary" relief in such cases, the Court chose to constrict future relief by holding mothers to the higher physical presence standard that currently applies to men. Now, rather than requiring one year of physical presence for citizen mothers in this situation, five or ten years, depending on the date of the birth, will be required.  It's an ominous result for future equal protection litigation and Morales-Santana goes home empty-handed, despite his clear victory on the equal protection claims.
 
Editors' Note:  This posting is part of a Scholarly Voices symposium on this case.  Nancy Dowd's analysis of Morales-Santana and fatherhood is here.  For Deborah Brake's insightful analysis of the remedial issue in the case, look here and here.  Rachel Rosenbloom's expert analysis from an immigration perspective is here.
 

 

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