Is Ginsburg’s Decision in Sessions v. Morales-Santana Good for Women?

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In Sessions v. Morales-Santana, a decision written by Justice Ginsburg, the Supreme Court ruled unconstitutional today a federal law that makes it more difficult for U.S. citizen fathers than mothers to transmit citizenship to non-marital child born abroad.  Previously, unmarried U.S. citizen mothers could transmit citizenship to a child born outside the U.S. as long as she lived in the United States for one year before the birth of the child.  Unmarried U.S. citizen fathers were subject to a 5-year residence requirement.

In the opinion, Justice Ginsburg takes the reader through the history of equal protection cases (some of which she argued before the court) and finds no “exceedingly persuasive justification” for treating unmarried fathers differently from unmarried mothers.  But her solution? Eliminate the 1-year requirement for unmarried U.S. citizen mothers, and make them subject to the same 5-year requirement that unmarried U.S. citizen fathers are.  Ginsburg writes:

Going for­ward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.

The ACLU praises the decision in a press release here, as disruptive of the gender stereotype that women, and not men, are responsible for their children.

I’m less sanguine. I think the decision hurts unmarried women (and their children) in the name of making the unmarried women “equal” to unmarried men.

The practical impact of this case?  The petitioner, who has lived in this country since he was 13, and took his case all the way to the Supreme Court, gets deported. I’m sure it’s no consolation that his name (and case) will appear in Con Law casebooks.

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