On Monday, the Supreme Court struck down a law that makes birthright citizenship more difficult to secure for a child born overseas out-of-wedlock if only the father, not the mother, is an American. The decision, in Sessions v. Morales-Santana, is both a victory for gender equity and a moment that reinforces Justice Ruth Bader Ginsburg’s legacy as the most influential women’s rights lawyer of the past half-century. In fact, she proved to be so influential that none of the other justices challenged her conclusion that the sex-based classifications at issue in the case violated the Equal Protection Clause. In a 6-2 decision, Justice Anthony Kennedy and Chief Justice John Roberts joined the Ginsburg opinion. Justices Clarence Thomas and Samuel Alito dissented on other grounds, but did not discount her analysis.
The case involved one of the few remaining sex-based classifications in federal law. Luis Ramón Morales-Santana was born in the Dominican Republic in 1962 to an unmarried couple, a US citizen father and a mother who was a citizen of the Dominican Republic. The US Code has long imposed sex-based physical presence requirements on out-of-wedlock citizen parents seeking citizenship for their children born abroad. Under the challenged law, citizen fathers were required to have 10 years’ physical presence in the United States, at least five of which occurred after the father’s 14th birthday. Out-of-wedlock citizen mothers, in contrast, were required to live in the United States for only one year prior to the child’s birth. Morales-Santana’s US father fell just 10 days short of his 10-year cutoff, but he would have easily satisfied the test applied to mothers. Morales-Santana filed suit seeking to strike down the discriminatory provisions and apply the lower, one-year standard to his case.
Ginsburg’s opinion for the Court surveys a series of cases in which she was involved as an attorney for the ACLU Women’s Rights Project, which she founded in the 1970s. In those cases, attorney Ginsburg carefully laid out the basis for heightened scrutiny of sex-based classifications. By 1974, she and her colleagues had achieved recognition of sex discrimination as a suspect classification under the Constitution’s Equal Protection Clause, subject to intermediate scrutiny. She spent the next decade litigating to enforce that understanding, with a series of cases successfully challenging sex-based benefit programs including Social Security and unemployment benefits.
By 1996, now as a member of the Supreme Court, Ginsburg was able to apply these cases from her new vantage, writing a powerful opinion striking down sex-based admissions policies of the Virginia Military Institute. The Morales-Santana decision striking down sex-based citizenship laws builds on this legacy, more than forty years in the making.
Yet the Morales-Santana opinion also makes clear that sex equality will not always result in expanded rights for women. In her 1970s litigation, Ginsburg was known for representing men who sought access to family supports available to women. Equalizing these benefits expanded the pie rather than undermining women’s access to them.
In Morales-Santana, however, Ginsburg’s opinion stops short of giving the relief that Morales-Santana needed in order to attain citizenship. Instead of expanding access to citizenship by adopting the one-year standard for all, the opinion extends the ten-year physical presence to mothers as well as fathers. Women and men are equal, certainly, but unless and until Congress acts, women seeking citizenship for their foreign-born, out-of-wedlock children will be in a significantly worse position than they were previously.
Ginsburg’s pursuit of formal equality for women and men has made a tremendous difference to women for decades. The Morales-Santana decision is a reminder — a hard one for Morales-Santana — that equality can be bitter as well as sweet.Martha Davis is professor of law at Northeastern University School of Law and previously served as vice president and legal director for the NOW Legal Defense and Education Fund