The 14th amendment to the United States Constitution states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The last clause, “or deny to any person within its jurisdiction the equal protection of the laws,”is referred to as the equal protection clause. Note that it indicates that no state shall deny a citizen equal protection.
The 5th amendment to the United States Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The penultimate clause, “nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law” is referred to as the due process clause. Note that the 5th Amendment, part of the original ten amendments called the Bill of Rights, limits the power of the federal government. Thus, the amendment indicates that the United States government cannot deprive a person of life, liberty, or property without due process of law.
Through the magic of court decisions over the centuries, such as this and this the two amendments have evolved into the general prohibition: The United States cannot deny a person equal protection.
The Supreme Court this week, in Sessions v. Morales-Santana, decided an immigration equal protection case. The question was whether a statute that treated the child of a United States citizen mother different from a United States citizen father violated equal protection. The case was thus one of whether the government could treat people differently based on gender.
The law in question states, or stated (the law was changed on November 14, 1986):
The following shall be nationals and citizens of the United States at birth: a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years…. 8 USC § 1401(a)(7) (1958).
This section applies to a child whose parents were a married couple. The section also applies to an unmarried couple, though provides requirements for the father, if the father is the United States citizen, to prove paternity. It is currently found at 8 U.S.C. § 1409(a).
Another section, now at 8 U.S.C. 1409(c) states:
A person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
To summarize, a child born to unmarried parents whose father is a United States citizen is a citizen at birth if the father lived in the United States for ten years before the child was born, at least five after the age of 14, while it the mother was a citizen, the mother had to live in the United States for one year before the child was born. To summarize even more – ten years for the father, one year for the mother. Hence the equal protection problem.
The government can, of course, treat people differently. It can draft some people into the military and not others. It can limit who can come into the United States based on where they were born, their education, or their relatives. It can vary the amount of money it can take from a person (taxes), based on how much he or she earns. So, the question in this case is whether the government can vary how it confers citizenship based on a parent’s gender.
As I discussed last week, for some kinds of immigration laws, all the government needs to do is show that the different treatment is rational. However, for gender discrimination, the courts require a higher standard. As the court pointed out in Morales-Santana, “The defender of legislation that differentiates on the basis of gender must show ‘at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’”
The court analyzed the distinction and explained that the distinction was based on old-fashioned considerations of parenthood and marriage and what was considered true when the law was passed in 1940 is not true today. Though, see, Steven Colbert, contra.
It thus concluded that the variant treatment for the children of mothers and fathers did not serve government objectives and thus the discrimination was unconstitutional. A big win for Mr. Morales-Santana, right? Wrong!
Mr. Morales-Santana suggested that the remedy for the discrimination he faced was that the child of an unwed father should be a citizen if the father lived in the United States for more than a year before the child was born. Of course, there was another remedy for the problem of discrimination – treat the unmarried child of an unmarred mother like an unmarried father or a married mother or father – by requiring the ten years (now five years) of residence. That is in fact what the Supreme Court did.
Hence, the double edged sword of equal protection. Assume in a given situation it is unfair that A is treated better than B. If so, the resolution could be that B gets treated as well as A or A gets treated as bad as B. In this case, A got treated as bad as B. So as of the date of the decision, June 12, 2017, (the court did not apply the decision retroactively), a child born of an unmarried mother is only a citizen if the mother lived in the United States for five years before the child was born, at least two and a half of those years after the mother turned 14. INA § 301(g).
One more thing: I also noted last week that one judge did not think that immigration laws need be rational at all. Note that in the Morales-Santana case, two justices, Thomas and Alito, did not concur that the statute could be evaluated by the Supreme Court for constitutionality at all – it just agreed that Mr. Morales was not a citizen. This could be a sign that we know only two judges are pre-disposed to believing that the Supreme Court cannot review an immigration laws’s (such as the travel ban) constitutionality. Justice Gorsuch sat this one out. If he is as Conservative as they say, at most three. Posted June 18, 2017.