Deference and Deferral: Constitutional Structure and the Durability of Gender-Based Nationality Laws

Collins, Kristin A.

doi:10.1017/cbo9781316481493.005

The Public Law of Gender 2016

DOI: 10.1017/cbo9781316481493.005

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Deference and Deferral: Constitutional Structure and the Durability of Gender-Based Nationality Laws

Kristin A. Collins¹

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2019

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Illegitimate Citizenship Rules

Saucedo

Villazor

2019

SSRN Journal

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In 2017, the Supreme Court decided Sessions v. Morales-Santana, a challenge to 8 U.S.C. § 1409, the law governing the conferral of U.S. citizenship to children born abroad to parents who are U.S. citizens. As the Court noted in a forceful opinion, § 1409 imposed different and more onerous physical presence requirements on unwed fathers than unwed mothers, making it difficult for nonmarital fathers to transmit their U.S. citizenship to their foreign-born children. Such distinctions, the Court concluded, were rooted in archaic gender stereotypes and thus incompatible with equal protection principles. Although Morales-Santana corrected the gender discrimination inherent in § 1409, it said nothing of the statute's other constitutionally infirm provisions. Although it has drawn little attention, § 1409 also discriminates on the basis of illegitimacy, which like gender, is a quasi-suspect classification for purposes of equal protection law. Specifically, § 1409 requires nonmarital children to prove that they have been legitimated by their unwed U.S. citizen fathers to establish their derivative citizenship claim. By contrast, foreign-born children in wedlock need not show that they have been legitimated; by virtue of their parents' marriage, they are legally recognized as "legitimate" children. These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents to prove what should be regarded as their pre-existing citizenship. Crucially, in general, laws such as these that distinguish on the basis of a parents' marital status constitute illegitimacy discrimination. Yet, the Court in Morales-Santana neglected to acknowledge this unequal treatment of nonmarital children, focusing

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Illegitimate Citizenship Rules

Saucedo

Villazor

2019

SSRN Journal

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show abstract

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Deference and Deferral: Constitutional Structure and the Durability of Gender-Based Nationality Laws

Cited by 1 publication

References 28 publications

Illegitimate Citizenship Rules

Illegitimate Citizenship Rules

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