Cross-posted to Medium.

In a significant gender equality ruling, the Supreme Court today struck down a federal immigration law that made it harder for fathers than mothers to pass their U.S. citizenship on to their children. Current immigration law discriminates between citizen fathers and citizen mothers whose children are born abroad.

The Court recognized the rule’s connection to “the long-held view that unwed fathers care little about, indeed are strangers to, their children.” And it relied on the amicus brief of Population and Family Law Scholars submitted by Columbia Law School’s Sexuality and Gender Law Clinic to rebut that assumption and show that “unwed fathers assume responsibility for their children in numbers already large and notably increasing.” As Justice Ginsburg wrote in an opinion joined by five other members of the Court, “lump characterization” based on gender stereotypes “no longer passes equal protection inspection.”

The law at issue in the case, Sessions v. Morales-Santana, concerns children born outside the U.S. and outside of marriage, where one parent is a U.S. citizen and the other is not.  The challenged provision required unmarried U.S. citizen fathers to have spent ten years in the U.S. to pass along their citizenship to their children, while U.S. citizen mothers needed only a single year in the U.S. before the child’s birth to establish U.S. citizenship for their children.  (The law was later revised to reduce the residency time for fathers to five years, which is still five times longer than for mothers.)

Relying on national and international data, the Clinic’s brief argued that “the challenged law’s imposition of extra barriers on non-marital fathers’ passage of U.S. citizenship to their children—barriers that it does not place on non-marital mothers—appears to reflect flawed gender stereotypes about the likely involvement of unwed fathers in their children’s lives.”

Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and director of Columbia Law School’s Sexuality and Gender Law Clinic said, “This important new ruling strengthens the Court’s sex discrimination jurisprudence by rejecting gendered assumptions about mothers and fathers as factually flawed and plainly unconstitutional.”

The Court concluded its ruling by stating that although the usual remedy for discrimination of this kind is to end the inequality by extending the favorable rule, in this case the longer physical-presence requirement is more consistent with the surrounding law and will now be imposed on unmarried U.S. citizen mothers as it is on unmarried U.S. citizen fathers. The Court added that it is for Congress to adjust the rule uniformly for men and women if it chooses to do so in the future.

Columbia Law School student Samuel Rosh ’18 assisted with the brief, and Peter K. Stris, Elizabeth Rogers Brannen, Thomas Logan and Victor O’Connell of Stris & Maher served as co-counsel.

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