Wednesday, July 16, 2014

Challenging Sex-Based Citizenship Laws in the U.S.

A few weeks ago, a consortium of international activists convened in Geneva to launch a global Campaign the End Sex Discrimination in Nationality Laws.  The campaign announcement followed on a report issued by Equality Now earlier this year chronicling sex-based inequities in citizenship laws as well as attention to the issue by the UN Refugee Agency.  The U.S., which treats foreign-born out-of-wedlock children differently depending upon whether their citizen parent is a mother or a father, is one of the countries targeted for reform by the Equality Now campaign.

The U.S. Supreme Court most recently upheld this sex-based treatment in Flores-Villar v. United States, and in Nguyen v. INS, 533 U.S. 53 (2001), the majority (5-4) of the Supreme Court opined that the sex-based distinction was justified by innate biological differences between men and women. Justice O'Connor offered a pointed dissent, joined by Justices Ginsburg, Breyer and Souter. The dissenters' position is now strengthened by an excellent article by Professor Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L. J. 2134 (2014), which draws on close readings and careful analysis to powerfully challenge that Supreme Court majority's conclusion -- and the perpetuation of sex-based citizenship distinctions -- on historical grounds.

According to the article abstract:

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real difference.” Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of gender- and marriage-based derivative citizenship law—jus sanguinis citizenship—was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. The complex interaction of gender, race, family law, and nationality law charted here demonstrates that gender-based jus sanguinis citizenship is not a biologically inevitable feature of American nationality law, as has been argued, but is in important respects the product of choices made by officials engaged in a racially nativist nation-building project. This history also suggests that what is at stake in modern challenges to gender-based citizenship laws is not only the constitutionality of those statutes, but a mode of reasoning about citizenship, family, gender, and race that continues to shape the practice and politics of citizenship in ways that are often obscured in modern citizenship debates.

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