Supreme Court Finds Law Unfair To Fathers, Decides To Treat Mothers Just As Bad
Don't blame Trump/Sessions for this one; this is an Obama/Lynch job.
The Supreme Court of the United States (photo by Drew Havens)
Today’s Supreme Court decision in Sessions v. Morales-Santana is a victory for modern sensibilities over outdated gender norms.
Unfortunately, it is also a critically stupid decision. Instead of uplifting people to a state of equality, it hobbles all people equally. The Court treats a one-eyed patient by stabbing out his other eye and calling it a day.
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It’s a complicated road to get there, but like many bad Court opinions, it starts with idiot policy.
Unbeknownst to most Americans, the United States has a double standard when it comes to parents conferring citizenship to their children while living abroad. For U.S. citizen mothers, it’s nearly automatic: a mother who births a child abroad with a non-citizen partner confers citizenship to her child so long as she lived continuously in the United States for at least a year. It’s pretty simple. You could go to the Moon, bone a Martian, and give birth in the Shire, and your Martian-Hobbit baby would be a U.S. citizen as long as you spent a year living in Jersey.
For fathers, the standard is ridiculous. Citizen fathers who conceive children birthed in foreign lands transmit their citizenship to their children only if they have lived continuously in the U.S. for ten years, five of with occurred after the age of 14.
It is literally a 1950s era rule. I guess the thought process was the mothers only have kids they intend to, while fathers might just be out there ejaculating into entire countries and can’t be expected to confer citizenship on everything they fertilize. Fathers makes “mistakes,” but mothers make babies? I really don’t get it, but that’s the rule.
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What I do know is that Luis Morales-Santana committed some manner of crimes and was subject to deportation during the Obama administration. Morales-Santana challenged his deportation to the Dominican Republic, claiming U.S. citizenship because his father, Jose Morales, was a U.S. citizen.
Jose could have conferred citizenship on Luis if Jose was a mother, but as a father Jose did not meet the more stringent requirements. The Obama administration sought to deport Luis Morales-Santana under this anachronistic rule.
This case is called Sessions v. Morales-Santana, and everybody would expect Jeff freaking Sessions to be a big fan of this rule. But when it initially went up for Supreme Court review, it was called “Lynch” v. Morales-Santana. Because the Obama administration was seeking to deport Luis under its theory of “Anti-immigrant white people will notice that I’ve been the GODDAMN DEPORTER-IN-CHIEF, and won’t elect a xenophobe just to get tough, right?”
I’ve heard liberals argue that the Obama administration and then-Attorney General Loretta Lynch fought the case just because they wanted to get a Supreme Court ruling ending this double standard. I’d like to think that. But it’s also entirely possible that the Obama administration was so terrified of seeming “weak” on immigration that they did patently awful things. It wouldn’t be the first time that the Obama administration’s desire to “look tough” led them to morally reprehensible decisions (see, e.g., drone strikes).
In any event, if liberals thought Morales-Santana would give the Court an opportunity to right a wrong, boy did Ruth Bader Ginsburg throw them a curveball. Writing for the majority (Chief Justice Roberts, and Justices Kennedy, Breyer, Sotomayor, and Kagan — Justices Thomas and Alito concurred in part in the judgment), Ginsburg wrote that gender distinctions of this kind deserved the highest scrutiny, and the government failed to meet the high standard. The government couldn’t show that there was any reason to treat the father materially differently than the mother, for the purposes of conferring citizenship to their children born abroad.
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BUT: Ginsburg and the Court decided that the way to fix this was to reduce the mother’s rights DOWN to the level of the father’s. The Court said that the mother’s ability to confer citizenship was the “exception” to the law (which it technically was) and that the Congressional standard (in 1958) was to require ten years of continuous citizenship, at least five of which must have been after the age of 14, before you can confer citizenship to your OWN DAMN CHILDREN if those kids are born abroad.
Again, don’t blame Trump/Sessions for this one. Don’t blame Justice Gorsuch and the seat the Republicans stole on the Supreme Court (Gorsuch took no part in the case). This is an Obama/Lynch job. They could have simply not enforced this hideous double standard upon Morales-Santana. This is RBG deciding that all she could do was hold mothers back instead of lifting fathers up.
Later, when you see a Latino complain that “both parties” treat them like a subclass here to steal “status” from all these good white Americans, issues like this are the reason why.
I shudder to think about how many people Sessions will try to deport, going forward, under the name of “equal protection.”
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
