Wednesday, August 16, 2017
Immigration Article of the Day: Sex-Based Citizenship Classifications and the 'New Rationality' by Martha F. Davis
In the 2001 case, Nguyen v. INS, the United States Supreme Court purported to exercise intermediate scrutiny while upholding a sex-based citizenship classification. Yet, as many commentators — including the dissenting Justices — have pointed out, the scrutiny exercised in that case bore few of the hallmarks of heightened review. Rather than hold the government to a tight fit between statutory ends and means, the majority accepted stereotypes and post hoc rationalizations to uphold distinctions between mothers and fathers for purposes of transmitting derivative citizenship to their out-of-wedlock, foreign-born children.
In the 2016 Term, in Lynch v. Morales-Santana, the Supreme Court again considers sex-based classifications in the context of U.S. citizenship law. At issue are the different physical presence requirements for mothers and fathers imposed as a prerequisite to sharing derivative citizenship. Again, those seeking relief from the statute’s discriminatory requirements will argue for intermediate scrutiny. Yet intermediate scrutiny is not the only standard for evaluating sex-based citizenship laws. “Rational basis with bite” has attracted increasing attention in recent years, being utilized in a series of decisions striking down classifications based on sexual orientation.
This article will examine sex-based citizenship challenges, including Nguyen and Morales-Santana, through the lens of this new rational basis review. Arguments of irrationality have been successful in expanding individual rights based on sexual orientation and disability, among others. Other high courts and international governing bodies around the world have rejected sex-based citizenship laws as irrational. Perhaps this new rationality standard should be seriously developed as an approach to challenging the sex-based classifications that remain embedded in U.S. citizenship law.