SCOTUS Finds Gender Discrimination In Immigration Law

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Kevin Daley Supreme Court correspondent
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The Supreme Court ruled Monday that a federal immigration law that makes it easier for women to transmit their citizenship to their foreign-born children is unconstitutional, because it discriminates on the basis of sex.

Federal law provides that a foreign-born child may obtain U.S. citizenship through their parents. In cases where a child’s parents are unwed, the law allows mothers to pass citizenship to their children if they lived in the U.S. for one year prior to the child’s birth. Fathers, however, must live in the U.S. for five years before birth before transmitting citizenship.

In her opinion for the Court, Justice Ruth Bader Ginsburg explained that such gender-based discrimination is not permissible. Ginsburg was joined by Chief Justice John Roberts, and Justice Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Thomas filed an opinion concurring in part with the ruling, joined by Justice Samuel Alito. Justice Neil Gorsuch did not participate in the case.

Ginsburg explained that discriminatory assumptions undergird the law, which was adopted by Congress in 1940.

“During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings,” Ginsburg wrote. “In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.”

In this context, she explained, policymakers operated under the assumption that fathers were more likely to transmit foreign customs to their children, and therefore needed a “prolonged residency prophylactic” to ensure the child did not turn out “‘more alien than American in character,'”

Prescribing one rule of men and another for women on the basis of norms and stereotypes are “stunningly anachronistic” and unconstitutional, she said.

The opinion also stands on several interesting citations. Ginsburg cites the Court’s Obergefell v. Hodges ruling, (which announced a constitutional right to same sex marriage) in explaining that “new insights” granted by the passage of time may reveal “unjustified inequality.” That this citation appears in an opinion joined by the chief justice shows the Obergefell ruling is gliding into the mainstream of the Court’s jurisprudence, unlike other 5-4 rulings which a disgruntled minority prefers to keep at the margins.

She also cites the Court’s 1975 ruling in Weinberger v. Wiesenfeld, a case she argued as an attorney for the ACLU. Ginsburg biographer Irin Carmon says the ruling is the result in which the justice takes the most pride from her career as an advocate.

The ruling calls on Congress to update the law such that men and women are not treated differently, and orders the executive branch to enforce the law along gender-neutral lines until new language is adopted.

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