A US Supreme Court decision has struck down a law making it easier for some children born to an unmarried US mother to acquire citizenship, than to those born to an unwed US citizen father.
The court ruled, in an opinion (PDF) by Justice Ruth Bader Ginsburg, that the law violates the equal protection clause. Ginsburg’s opinion was joined in full by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Neil Gorsuch did not take part in the opinion.
The law allows unwed U.S. citizen mothers to transmit their citizenship to children born abroad if the mother has lived in the United States for just one year before the child’s birth. A five-year U.S. presence, including two years after age 14, is required for U.S. citizen parents if the parent is married or the father is unwed (an easing of a previous 10-year requirement, with at least five years after age 14).
“We hold that the gender line Congress drew is incompatible with the requirement that the government accord to all persons ‘the equal protection of the laws,’” Ginsburg wrote in the judgment, saying that the court is unable to rewrite the law.
The ABA Journal reports that Justice Ginsburg said the government must ensure the laws are administered in a way that is free from gender-based discrimination. The one-year physical presence requirement was an exception to the general rule, the five-year requirement will apply, prospectively, to children born to unwed citizen mothers, Ginsburg said.
Ginsburg said the statutes at issue “date from an era when the lawbooks of our nation were rife with overbroad generalizations about the way men and women are.” At the time the statutes were enacted, “two once habitual, but now untenable, assumptions pervaded our nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child.”