Sessions v. Morales-Santana
Does the Immigration and Nationality Act's imposition of a longer physical-presence requirement on unwed U.S. citizen fathers, compared to unwed U.S. citizen mothers, for transmitting citizenship to a child born abroad violate the Fifth Amendment's guarantee of equal protection?
The Decision
6-2 decision · Opinion by Ruth Bader Ginsburg · 2017
Majority Opinion— Ruth Bader Ginsburgconcurring ↓dissent ↓
In a 6–2 decision authored by Justice Ruth Bader Ginsburg, the Supreme Court held that the gender-based distinction in the INA's physical-presence requirements violated the constitutional guarantee of equal protection. However, the Court reversed the Second Circuit's chosen remedy, ruling that the proper fix was not to extend the shorter one-year requirement to unwed citizen fathers, but instead to apply the longer requirement to all parents equally — a result that meant Morales-Santana himself did not gain citizenship.
Justice Ginsburg's majority opinion applied the well-established standard of heightened scrutiny for laws that classify people based on sex. Under this standard, the government must show that a sex-based classification serves an important governmental objective and that the discriminatory means employed are substantially related to achieving that objective. The Court found that the INA's different physical-presence requirements failed this test. The law was rooted in the assumption that an unwed mother would naturally be the child's caretaker and primary influence, while an unwed father might have little connection to the child — precisely the kind of gender-based stereotype the Constitution does not permit Congress to encode into law.
The Court acknowledged that Congress had a legitimate interest in ensuring a meaningful connection between the citizen parent and the United States before allowing citizenship to pass to a child born abroad. But this interest did not justify the vast disparity between a ten-year requirement for fathers and a one-year requirement for mothers. The distinction was based not on any biological difference but on outdated generalizations about the roles of mothers and fathers.
On the critical question of remedy, the Court disagreed with the Second Circuit. The majority reasoned that the one-year physical-presence requirement for unwed citizen mothers was a narrow, targeted exception to the INA's general rule. The general rule — the longer physical-presence requirement — represented Congress's broader policy judgment about the connection needed to transmit citizenship. Rather than extending the exception to swallow the rule, the Court concluded that the appropriate judicial remedy was to strike the discriminatory exception and let the longer, gender-neutral general requirement govern all cases equally. This meant that Morales-Santana's father still did not meet the physical-presence threshold, and Morales-Santana therefore was not a citizen by birth. The Court noted that Congress was free to enact a uniform standard of its choosing going forward.
Justice Neil Gorsuch took no part in the consideration or decision of the case because he was not yet on the Court when the case was argued.
Concurring Opinions
There were no separate concurring opinions filed in this case.
Dissenting Opinions
Clarence Thomasjoined by Samuel Alito
Justice Thomas agreed that if the gender-based distinction were unconstitutional, the majority's chosen remedy of leveling up to the longer requirement was correct. However, he argued that the Court should not have reached the constitutional question at all, because Morales-Santana could not benefit from any remedy the Court might fashion — his father did not meet the longer physical-presence requirement regardless — and therefore the constitutional ruling was essentially an advisory opinion with no practical effect on the outcome of the case.
- The Court's constitutional holding was unnecessary to resolve the dispute because, under any possible remedy, Morales-Santana would still not qualify for citizenship, making the equal protection analysis a purely academic exercise.
- Courts should avoid deciding constitutional questions when the outcome of the case does not depend on the answer, consistent with longstanding principles of judicial restraint.
Background & Facts
Luis Ramón Morales-Santana was born in 1962 in the Dominican Republic. His father, José Morales, was a United States citizen who had been born and raised in Puerto Rico. His mother was a citizen of the Dominican Republic. His parents were not married at the time of his birth, though his father had acknowledged paternity and later married his mother. Morales-Santana moved to the United States in 1975 and lived there as a lawful permanent resident for decades.
The case arose when the government sought to deport Morales-Santana after he was convicted of certain criminal offenses. He applied for derivative citizenship — that is, he claimed he was automatically a U.S. citizen at birth because his father was a citizen. But there was a critical problem: under the Immigration and Nationality Act (INA), an unwed citizen father could only transmit citizenship to a foreign-born child if the father had been physically present in the United States for at least ten years before the child's birth, with at least five of those years occurring after the father turned fourteen. Morales-Santana's father had left Puerto Rico for the Dominican Republic just twenty days before his nineteenth birthday, meaning he fell barely short of the five-years-after-age-fourteen requirement.
Here was the striking disparity at the heart of the case: if Morales-Santana's mother had been the U.S. citizen parent instead of his father, she would have needed only one continuous year of physical presence in the United States before the child's birth to transmit citizenship. This dramatically different treatment — ten years for unwed citizen fathers versus one year for unwed citizen mothers — was the gender-based distinction Morales-Santana challenged as unconstitutional.
An immigration judge and the Board of Immigration Appeals ruled against Morales-Santana, concluding he was not a U.S. citizen and could be deported. He then appealed to the U.S. Court of Appeals for the Second Circuit, which reversed. The Second Circuit held that the gender-based difference in physical-presence requirements violated equal protection and that the proper remedy was to extend the shorter one-year requirement to unwed citizen fathers, thereby making Morales-Santana a citizen. The government, represented by Attorney General Jeff Sessions, petitioned the Supreme Court to review the case, and the Court agreed to hear it.
The Arguments
The government argued that the different physical-presence requirements for unwed citizen mothers and fathers were constitutional because they served important governmental objectives and were substantially related to achieving those objectives. Alternatively, even if the distinction was unconstitutional, the proper remedy was not to extend the shorter requirement to fathers but rather to apply the longer requirement to mothers, meaning Morales-Santana still would not qualify for citizenship.
- Congress had a legitimate interest in ensuring that a citizen parent had a sufficient connection to the United States before transmitting citizenship to a foreign-born child, and the different requirements reflected real differences in the circumstances of unwed mothers and fathers at the time the law was enacted.
- The one-year requirement for unwed mothers was a narrow exception to the general rule, originally designed to address the particular situation of children born abroad to citizen mothers who might otherwise be stateless, and should not be treated as the baseline for equal treatment.
- If the Court found the distinction unconstitutional, it should 'level up' by extending the longer ten-year requirement to everyone, rather than 'leveling down' by extending the shorter one-year period — because the longer requirement represented Congress's general policy choice.
Morales-Santana argued that the dramatically different physical-presence requirements imposed on unwed citizen mothers versus unwed citizen fathers constituted impermissible sex discrimination under the Fifth Amendment's equal protection guarantee, and that the proper remedy was to extend the more favorable one-year requirement to unwed citizen fathers like his own father.
- The gender-based distinction rested on the overbroad generalization that mothers are more likely to be the caregivers of children born out of wedlock and that their relationship to the child is somehow more certain or more important, which is exactly the type of sex-based stereotype the Constitution forbids.
- Under heightened scrutiny, the government could not show that the enormous disparity between one year and ten years of physical presence was substantially related to any important governmental interest.
- The Second Circuit correctly chose to extend the shorter, one-year physical-presence requirement to unwed citizen fathers as the appropriate remedy, which would make him a citizen at birth through his father.