Wednesday, July 6, 2016
On June 28, the U.S. Supreme Court accepted certiorari in a Morales-Santana v. Lynch, a case challenging sex-based discrimination in citizenship for out-of-wedlock, foreign born children. Under the current law -- defended by the US government --an out-of-wedlock child born abroad whose father is a U.S. citizen is given less favorable treatment than an out-of-wedlock child born abroad whose mother is a U.S. citizen.
Morales-Santana is the second case to raise this issue before the Court. In Flores-Villar v. INS, before the Court in 2011, Justice Kagan was recused. The 8 remaining justices split 4-4 and simply issued a per curiam affirmation of the 9th Circuit's decision upholding the sex-based law.
In contrast, the 2d Circuit Court of Appeals in Morales-Santana found that the sex-based law violates the Equal Protection Clause. Usually, a cert grant signals a strong possibility of reversal, but in this case, with all 8 current members of the Court now set to hear the case, the preliminary head count suggests that the law will be struck down. Even the additional of a 9th justice would not likely make a difference. Instead, the challenges in Morales-Santana will likely be focused on the remedy -- i.e., in establishing equality in the law, should the standards be tightened for women, or loosened for men?
Sex-based discrimination in citizenship has long been a central issue for women's rights activists both domestically and internationally, and it was a formative issue from the very beginning of the human rights legal regime in the 20th century. For more information on the human rights issues raised by sex-based citizenship laws, see the amicus brief filed by Equality Now, Human Rights Watch and others in the Flores-Villar case.