The U.S. Supreme Court on Monday ruled unconstitutional a law that makes it easier for some immigrant children born abroad to become citizens than others, depending on whether their mother or father were citizens. This system was based on a presumption in the law that the children born to unwed U.S. citizen mothers deserved a quicker pathway to citizenship.
The decision sounds like good news, and in part, it is. The gender-equality analysis at the heart of the Court’s decision is an important discussion of the broad harms gender-based stereotypes create. But the decision’s result is bad for immigrant children, and precisely an example of equality not necessarily leading to justice. And the decision’s author, Justice Ruth Bader Ginsburg, barely recognizes this fact.
Ginsburg has built her entire career advancing the cause of equality between the sexes, and Sessions v. Morales-Santana is exactly the kind of case she would have used as an attorney to rightly argue that gender assumptions harm both men and women. The case was brought by Luis Ramón Morales-Santana, who was born in the Dominican Republic to unwed parents. His mother was from the Dominican Republic, and his father was a U.S. citizen in the country for work. His father took primary responsibility for Morales-Santana from the time of his birth. Morales-Santana’s parents eventually married, and put his father’s name on the birth certificate.
Eventually, Morales-Santana came to the United States with his family as a permanent resident. But in 1995, he was convicted of several felonies, and in 2000, the U.S. government wanted to deport him. In response, Morales-Santana challenged the citizenship law that made it take longer for him to become a citizen, arguing that had he been born to an unwed mother who was a U.S. citizen, the government would not be able to deport him. Had that been the case, his pathway to citizenship could have begun if his mother had lived in the United States continuously for one year before giving birth to him; unwed U.S. citizen fathers, like Morales-Santana’s, have to live in the United States for five years, at least two of which must be after the age of 14. Morales-Santana’s father did not qualify by just a few weeks.
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The decision is classic Ginsburg, as it lays out the historical caregiving stereotypes set forth in the law—including the idea that men don’t care for children born outside of marriage as much as women do. Her opinion notes how arbitrary it is to assign citizenship status to children based on those stereotypes, noting that this is a method of perpetuating the harm from gender-based assumptions. And she cites Obergerfell v. Hodges when doing so, a marker of the importance the decision has in extending the law past a traditionally conservative, heteronormative, default.
It is also a signal that the Court is thinking about equality and sex discrimination in a context beyond the fight over bathroom and facility access in trans rights cases. This is important because the issue of trans rights extends well beyond bathrooms. As Senior Legal Analyst Imani Gandy and I have both written for Rewire, the law at some point is going to have to wrestle—and determine once and for all—that discrimination based on gender stereotypes or non-conforming behavior is sex discrimination.
This is all fantastic.
But then there are the kids. In a discrimination case like this one, the normal remedy would be to extend the favorable treatment to those affected by the discrimination, which would mean the remedy should be to allow all children born abroad to have a pathway to citizenship if their parents lived in the United States for a year, regardless of which parent was a citizen. But here, Ginsburg said the Court’s hands were tied because the favorable treatment for the mother was the exception to the general rule in the statute. Congress, the opinion concludes, was effectively more anti-immigrant than it was anti-unwed mother, and the Court is bound by those earlier biases. That means the general rule wins, and the five-year limit extends to everyone if and until Congress decides to change the statute.
The result is the difference between equality and justice. The plaintiff challenging the law was a child affected by the statute, even if he challenged it as an adult. Yet somehow the decision omits his voice and the voice of countless other immigrant children affected by this debate who will be unable to obtain an easier pathway to citizenship.
Would having those voices elevated in the opinion have changed the outcome of the decision? Likely not. But Ginsburg still had an opportunity to shift the needle in the political debate over immigrant rights in this opinion through the lens of gender equality and justice, and she failed to do so.
This feels like a missed opportunity from Ginsburg to untangle the statutory assumption about immigrants that also drives the gender assumptions that the child of a parent in the country for one year is more deserving of citizenship than the child of a parent in the country for five. It’s similar to her missed opportunity to speak on the very real racialized policing in this country that her colleague Justice Sonia Sotomayor so brilliantly took down in her dissents in Utah v. Strieff and Salazar-Limon v. City of Houston. Those dissents grounded the law in today’s reality of police brutality and racialized violence. They work not just as an acknowledgment of a perceived judicial injustice, but as part of a longer-term strategy of shaping policy and debate around unsettled areas of the law. In both instances, Ginsburg failed to do the same.
And again, on Monday, she echoed that failure. The opinion fails to discuss the real harms non-citizen immigrants face daily from the state—through deportation and detention, through Immigrant and Customs Enforcement raids, through a lack of access to comprehensive reproductive health care, the list goes on and on. Instead of connecting the fight for gender equality with the fight for immigrant rights, she provided the perfect roadmap for how an equality framing in the law, no matter how well-intentioned, cannot guarantee a just result.