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The United States Supreme Court this week decided a case that resulted in a unanimous agreement on an outcome but that exposed a vast gulf in philosophies.
The case was Sessions v. Morales-Santana, coming up from the U.S. Court of Appeals for the Second Circuit. A child was born abroad to an American father (now deceased) and a foreign mother who were not married to each other. The child sought admission to the United States as a citizen from birth. Under the act of Congress controlling such matters, the child was ineligible for admission because his late father had not satisfied requirements spelled out in the statute for years of actual residence by unwed fathers in the United States.
However, under the same statute, had the facts been reversed, and the child’s unwed mother been the American and the child’s father been the foreigner, then, on the same timeline of actual pre-birth residence in the U.S. (by the mother), the child would have been entitled to citizenship and admission.
On those facts the Second Circuit found a sex-based violation of the Equal Protection Clause of the Constitution and ordered that the child be awarded citizenship and admitted to the United States. The Government sought and obtained review in the Supreme Court. (The “Sessions” in the caption is the current Attorney General.)
Writing for the majority, Justice Ginsburg undertook a long disquisition in which she essentially embraced the Second Circuit’s approach to Equal Protection Analysis. She explained (using the term “gender” here, as throughout her opinion, to mean not a grammatical concept but “sex”):
Because §1409 [of the Immigration Act] treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana’s birth and was not accorded the right an unwed U. S.-citizen mother would have to transmit citizenship to her child.
Slip op. at 6. She analyzed further:
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida, 368 U. S. 57, 62 (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136 (1994); see, e.g., United States v. Virginia, 518 U. S. 515, 555–556 (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, 443 U. S. 76, 84 (1979)…,
Slip op. at 7-8.
If one wonders whether or not in the Ginsburgian view of American constitutional history, the ratification of the rejected “Equal Rights Amendment” would have made a difference, the answer, apparently, is not. She recalls that “Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child”, slip op. at 10. Those days began to wain in the New Deal era when “Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents” for immigration purposes. Slip op. at 12. Enlightenment eventually began to dawn in the 1970s:
For close to a half century … this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U. S., at 533; see Wiesenfeld, 420 U. S., at 643, 648. In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.” Mississippi Univ. for Women, 458 U. S., at 725.
Slip op. at 13. As such enlightenment has been achieved in America, so it has been found across the globe:
In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024. See generally UNHCR, Ending Statelessness Within 10 Years (all Internet materials as last visited June 9, 2017). Cognizant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key component of its project the elimination of gender discrimination in such laws.
Slip op. at 22. Hooray for the United Nations! The bottom line of this analysis, for Justice Ginsburg, is that to pass judicial muster a classification established by Congress at any time in the past
must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20).”
Slip op. 9. In short, the texts of our Constitution and statutes may not have changed, but if our “insights and societal understandings” have changed, well, then, the meanings of the texts of our Constitution and statutes may have changed, too, and if you want to know what the Constitution and laws mean you’re just going to have to wait to see how we feel about them based on our “insights and societal understandings” on the day you ask.
So, no surprise, near the end of her opinion Justice Ginsburg concludes:
The gender-based distinction infecting §§1401(a)(7) and 1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled.
Slip op. at 27. But wait! What does this mean in practical terms? We wish to treat the children of unwed fathers and unwed mothers alike, regardless of which unwed parent was the American. But are we to extend to everyone, children of unwed American fathers as well as children of unwed American mothers, the strict statutory rule applicable to the children of unwed fathers? or the generous statutory rule applicable to the children of unwed mothers?
Well, that’s a question for Congress (it’s good to know that some are left!):
Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.
Slip op. at 28. So the Second Circuit is affirmed, and the would-be immigrant wins, on the principle; but the Second Circuit is reversed, and the Attorney General wins, on the specific outcome in this case.
In her opinion for the majority, Justice Ginsburg was joined by Chief Justice Roberts, Justice Kennedy, Justice Breyer, Justice Sotomayor, and Justice Kagan.
Justice Thomas, joined by Justice Alito, filed a concurring opinion, the gist of which was, in the end the Court concluded that it was not equipped to provide a remedy in the case. That should have ended the matter; the entire analysis of the constitutionality of the immigration act and its interplay with “new insights and societal understandings” was unnecessary and irrelevant. That should have ended the matter.
Justice Gorsuch did not take part in the decision of the case.