Friday, July 10, 2015
On July 8, in Morales-Santana v. Lynch, the Second Circuit Court of Appeals struck down a U.S. citizenship law requiring that citizen fathers comply with more stringent residency requirements than citizen mothers in order to transmit citizenship to their out of wedlock foreign born children. This differential sex-based treatment, the court said, violated the equal protection clause of the 5th amendment.
In 2008, the 9th Circuit Court of Appeals considered the same issue U.S. v. Flores-Villar, and upheld the statute. On appeal, the U.S. Supreme Court issued a one-sentence ruling affirming the 9th circuit decision based on a 4-4 vote; Justice Kagan was recused from that case because of her involvement as Solicitor General.
With the 2d circuit's decision in Morales-Santana, there is now a split in the circuits. But while Kagan would not likely be recused from Morales-Santana, vastly increasing the likelihood that the decision would be affirmed on appeal, the current administration may simply accept the ruling and forgo further review.
The law at issue is one part of a broader sex-based US citizenship law that can be traced to a deep history of stereotypes regarding parental responsibilities and women's supposed lesser capacities to operate as full citizens. Another sex-based aspect of the law -- regarding paternity establishment -- was upheld by the US Supreme Court in Nguyen v. INS. Similar sex-based conditions on citizenship transmission are imposed in dozens of countries, and Equality NOW is leading global advocacy efforts to equalize the laws through the courts and using international pressure.
The Morales-Santana decision is a small but decisive step toward such equal citizenship. Exercising intermediate scrutiny, the Second Circuit rejects the government's arguments that sex-based residency requirements are needed to avoid children's statelessness, or to ensure ties between the child and the parent. Further, the court "equalizes up," extending the more generous benefits to fathers rather than holding mothers to more stringent residency requirements.
In recent decades, many U.S. lawyers, including this author, have challenged aspects of these sex-based laws, with only minimal success. But perhaps the tide has turned. Kudos to the Stephen Broome and his colleagues at Quinn Emanuel Urquhart & Sullivan, along with the many lawyers who contributed to developing the arguments in this case, particularly Professor Kristin Collins of Boston University, the historian whose account of the origins of this law was cited by the court. As a result of this decision, Morales-Santana is deemed a citizen at birth based on his father's residency, and is no longer subject to detention or deportation.