Ginsburg Makes Strides Towards Gender Equality in Sessions v. Morales-Santana

By: Wesley Walker[1]

     On June 12, 2017, the United States Supreme Court issued an opinion in Sessions v. Morales-Santana,[2] written by Justice Ginsberg, and held part of the Immigration and Nationality Act (hereinafter the “Act”) to be unconstitutional.[3]  The Act was designed to set a standard by which children could obtain citizenship if one parent was a U.S. citizen but the other was not.[4]  For married couples, the Act contains a “ten/five” rule whereby the U.S. citizen parent must have lived in the United States for ten years before the child’s birth, at least five of which were after the parent turned fourteen years old.[5]  One section[6] of the Act made the ten/five rule applicable to unmarried U.S. citizen fathers, but an additional subsection[7] provided an exemption from this requirement for unmarried U.S. citizen mothers.  Under the Act, a child born out of wedlock to a female U.S. citizen would gain citizenship if the mother lived in the United States for one continuous year, regardless of other factors.  However, if a male U.S. citizen and a female non-citizen conceived a child, that child could only receive U.S. citizenship if the father had lived in the United States for ten years over the course of his life, and for five years after he turned fourteen.

     In Morales-Santana, Luis Ramon Morales-Santana challenged the constitutionality of the ten/five rule claiming it unjustly classified him as an alien, which was one of the factors that led to his deportation.[8]  His classification as an alien stemmed from Morales-Santana’s father, José Morales, not satisfying the five-year requirement after reaching the age of fourteen.[9]  José Morales moved from Puerto Rico only twenty days before his nineteenth birthday and conceived Luis with a non-citizen.[10]  José held Luis out as his own child, married his mother, and added his name to Luis’s birth certificate.[11]  Despite these facts, an immigration judge denied Luis’s claim for citizenship and in turn deprived his father of equal protection.[12]  On review, the Board of Immigration Appeals affirmed the immigration judge’s decision but was later overturned by the Second Circuit.[13]  The case was remanded, and a petition for certiorari was granted because a circuit split existed on the issue of derivative citizenship.[14]

     At the outset of the opinion, Justice Ginsberg discussed the requirements Congress enacted to acquire U.S. citizenship.[15]  She then traced the family history of Morales-Santana that led to the unique and precarious situation surrounding his putative citizenship.[16]  Justice Ginsburg noted that this allegation of a violation of the Equal Protection Clause of the U.S. Constitution was unique since Morales-Santana claimed that the gender-based discrimination occurred against his father and not himself.[17]  Though the traditional approach is that “[one] cannot rest his claim to relief on the legal rights . . . of third parties”[18] an exception to the rule exists when “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor’s ability to protect his own interests.”[19]  Ginsberg discussed both of these factors briefly and concluded they were both met due to the father-son relationship, and the fact that José Morales was deceased.[20] For that reason, the Court held that Morales-Santana was the best proponent of his father’s claim.

     Ginsberg took an almost sarcastic approach when discussing the legislative history of the provision that Morales-Santana challenged. Discussing a line of past cases, she described the heightened level of scrutiny that gender-based legislation must satisfy in order to meet the guarantee of equal protection.[21]  Ginsberg held that this case was no different and there must be an “exceedingly persuasive justification” for the difference between citizenship obtained through a mother and a father under the Act.[22]  This justification, she discussed, must be an important governmental objective, which is served by a discriminatory law that is narrowly tailored to achieve that objective.[23]  However, she noted that this interest, viewed post-Obergefell, must be served in the present day, not just in the past: “[we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.”[24]

     The section at issue has always been a contentious subject, as are any tools used to legislate the marital relationship. At the time of this code’s inception, a woman was thought to be subservient to a man, and presumed to be the guardian of all children born to her.[25]  In 1940, Congress struck the father-controls assumption and simultaneously codified the mother-as-sole-guardian perception concerning unwed parents.[26]  At that time, fathers were deemed less qualified than mothers to raise a child.[27]  However, as time has passed, Ginsberg surmised that laws grounded in sexist and “anachronistic” language glaringly fail the equal protection guarantee post-1971.[28] In reading Ginsburg’s analysis, her passion for true “equal protection under the law” jumps out at the reader from the opinion. For such reasons, she, along with all the other Justices, concurred that these sections violated the equal protection guarantee.[29]

     Although the Morales-Santana case had a favorable outcome, Morales-Santana himself will not benefit from this decision. The Court held that jurisprudence, precedent, and legislative intent would run contrary to a decision in his favor.[30]  In exercising judicial restraint, and in classic Justice Ginsberg fashion,[31] she sided with the rationale of the U.S. Government in extending the ten/five requirement to children born to unmarried U.S. female citizens.[32]

     Many will see this as a landmark case as Justice Ginsberg’s opinion holds that “disparate criteria [based upon gender] . . . cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens . . . .”[33]  Justices Thomas and Alito joined in a concurrence, stating that “discrimination itself . . . perpetuat[es] archaic and stereotypic notions  incompatible with the equal treatment guaranteed by the Constitution.”[34]  However, this “pass the buck” to Congress mentality to amend the code could have a disparate impact on children born out of wedlock, as there is no guarantee that Congress will address this issue swiftly or at all.  Others have commented that Ginsburg’s ability to fuse the gender equality standard with Obergefell’s “equal dignity” rationale to demand a justification for sex discrimination that comports with our contemporary sense of fairness is exceptionally forward thinking.[35]  This new standard could significantly hinder any individual or entity from citing a law that is based upon archaic ideals as a basis for a denial of equal protection.

     But what does this all mean? The figurative football is in Congress’ possession, and in congressional politics there is no delay of game. As this case highlights, immigration has and will continue to be at the forefront of the political and legal debates in our country. However, one thing is certain: in the case of Morales-Santana, Justice Ginsberg boldly advanced the cause of equal protection and liberty and justice for all.

[1] Cumberland School of Law, Candidate for Juris Doctor, May 2018.

[2] Sessions v. Morales-Santana, No. 15-1191, 2017 WL 2507339, at *1, *18 (U.S. June 12, 2017).

[3] 8 U.S.C. § 1409 (2012), invalidated by Morales-Santana, 2017 WL 2507339, at *18.

[4] See id.

[5] 8 U.S.C. § 1401(g) (2012).

[6] 8 U.S.C. § 1409(a). Referred to as the “ten/five rule” by the author.

[7] 8 U.S.C. § 1409(c).

[8]  See Morales-Santana, 2017 WL 2507339, at *6.

[9] See id.

[10] Id.

[11] Id. at *7.

[12] Id.

[13] Id.

[14] Morales-Santana, 2017 WL 2507339, at *7.

[15] See id. at *8.

[16] See id.

[17] Id.

[18] Id. at *8 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).

[19] Id. (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)).

[20] Morales-Santana, 2017 WL 2507339, at *8 (U.S. June 12, 2017).

[21] Id. at *9.

[22] Id. (quoting United States v. Virginia, 518 U.S. 515, 531 (1996)).

[23] Id. (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

[24] Id. (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015)) (alterations in original).

[25] Id. at *10.

[26] Morales-Santana, 2017 WL 2507339, at *11.

[27] Id.

[28] Id. at *9 (citing Califano v. Westcott, 443 U.S. 76, 84 (1979); see id. at 88–89 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers)). Accord United States v. Virginia, 518 U.S. 531-34 (1996); Califano v. Goldfarb, 430 U.S. 199, 206–07 (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648–53 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688–91 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76–77 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).

[29] Id. at *19.

[30] Morales-Santana, 2017 WL 2507339, at *18.

[31] Using men to advance the cause of equal protection based upon gender discrimination.

[32] Morales-Santana, 2017 WL 2507339, at *19.

[33] Id. at *16.

[34] Id. n.21.

[35] Mark J. Stern, Ruth Bader Ginsburg Affirms the “Equal Dignity” of Mothers and Fathers, Slate (June 13, 2017, 12:54 PM),

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