To a child born abroad seeking U.S. citizenship, it has traditionally mattered a great deal whether your mother or your father was a citizen of the United States. If your parents weren't married and your mother was a citizen, you could obtain citizenship as long as your mother had, at any time in her life, resided in the U.S. for a year.
In the same situation but where your father was a citizen, you could only derive citizenship from him if:
- He had resided in the U.S. for 10 years prior to your birth, and
- He was over the age of 14 for at least five of those years
This was the official position taken in the original Immigration and Naturalization Act, which was passed in 1952. Lawmakers at the time may have been picturing the most common scenarios in which children are born abroad to a U.S. parent. They may have pictured the majority of male parents as soldiers stationed abroad who didn't necessarily intend to have children. They may have assumed women would be more deliberate. The law seems especially well-tailored to those scenarios.
The government is not relying on those scenarios in defending the law, however. Instead, it seems to have argued that the restrictions were meant to ensure that any putative U.S. citizen child had a legitimate connection to our nation.
If so, the argument fails, according to the U.S. Supreme Court. In a unanimous ruling by the eight participating justices, Justice Ruth Bader Ginsburg pushed back. Assuming that argument is what Congress meant, she wrote, "the gender-based means scarcely serve the posited end."
In the case before the court, a man was denied citizenship because his father failed to meet the requirements by just a few days. Yet if his mother had been a U.S. citizen, he could have derived citizenship from her even if she had only lived in the States for a single year over the course of her entire lifetime.
"We hold that the gender line Congress drew is incompatible with the requirement that the government accord to all persons 'the equal protection of the laws,'" wrote Ginsburg. Justice Neil Gorsuch did not take part in the deliberations.
Ordinarily, such a ruling would allow the high court to provide relief to people in the situation being addressed. Unfortunately, the court can only invalidate the unconstitutional parts of the law, not rewrite them. Therefore, immigration officials will have to work out a gender-neutral way to determine child citizenship in these situations until Congress takes action to rewrite the Immigration and Naturalization Act.