Justices strike down gender differences in citizenship law

On June 26, 2017, the Supreme Court ruled in a 6-to-2 decision that the residency requirements for passing citizenship to children born abroad to unwed American parents cannot vary based on the parent’s gender.

The ruling struck down a federal law that required unwed United States citizen fathers to have lived in the country for a much longer period than unwed mothers before their children could gain automatic citizenship. Under the old law, an unwed mother needed only one year of continuous physical presence in the United States prior to the child’s birth. In contrast, an unwed father was required to have lived in the country for at least ten years, with five of those years coming after the age of 14. A federal appeals court had previously struck down the law and ruled that the one-year period must apply to both parents.

Justice Ruth Bader Ginsburg wrote the majority opinion, describing the gender-based distinction as “stunningly anachronistic.” She stated that the law was built on the stereotype that unwed fathers would not be involved in their children’s lives. Although the court found the rules unconstitutional, it did not grant citizenship relief to the plaintiff, a New York resident who brought the case to avoid deportation. Instead, the court ruled that a five-year residency period should apply to both mothers and fathers until Congress decides on a different length of time.

Justice Neil Gorsuch did not participate in the decision, as he had not yet been nominated when the court heard oral arguments. The opinion referenced Ginsburg’s historical work with the ACLU Women’s Rights Project in the 1970s and her 1996 opinion striking down sex-based admissions at the Virginia Military Institute.