Monday, July 20, 2020
Giving Gender Discrimination a Meaningful Remedy: Rewriting Justice Ginsburg's Opinion in Morales-Santana
I have just published: Tracy Thomas, Rewriting Sessions v. Morales-Santana, in Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., July 2020)
In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court in an opinion by Justice Ginsburg struck down a citizenship law that discriminated against children born abroad to US citizens based on whether the citizen was their father or their mother. The opinion was widely held to be a model of equal protection analysis, documenting the legal history of the Court's gender equal protection law and recognizing the masculinity side of gender discrimination against men.
However, the opinion was problematic for its refusal to order a meaningful remedy for the petitioner. The Court did not grant the discrimination victim relief, but instead ordered the government to adopt formally equal rules going forward, and that those rules should be the more stringent rule for fathers. The Court was focused on restraining the government rather than redressing the individual's harm.
I have written about the remedial problem of so-called leveling down unequal treatment to deny the benefit. Tracy Thomas, Leveling Down Gender Equality, Harvard J. Law & Gender (2019).
In this book chapter, I apply these criticisms to rewrite the Court's opinion to properly award a meaningful remedy as required by due process. This book is part of the US Feminist Judgments Project rewriting key court decisions as if they had been informed by feminist theory.