In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court was asked to pass upon the constitutionality of a federal statute, the Immigration and Nationality Act. That Act created a comprehensive scheme to assess whether children born outside of the United States are entitled to U.S. citizenship by virtue of their U.S.-citizen parents. The Act conferred citizenship to children born abroad to unmarried U.S. citizens, but only if the parents satisfied particular residency requirements.  

The Act laid down the general rule that a child born abroad to an unwed U.S.-citizen parent may acquire U.S. citizenship if, before the child was born, that parent had been physically present in the United States for at least five years, two of which were after attaining fourteen years of age. The Act, however, created an exception that allowed an unwed U.S.-citizen mother to transmit her citizenship to the child if she had merely one year of continuous physical presence in the United States before the birth of the child. The statute, therefore, created two distinct residency requirements that depended solely on the gender of the parent.

The Court held “that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” Morales-Santana, 137 S. Ct. at 1686. In reaching this decision, the Court cited Kristin A. Collins’s article, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134 (2014). In this article, Collins uses wide-ranging archival research to examine the historical interactions between gender, race, nationality, and family law that led to the gender-based system for granting citizenship to children born abroad.

Using the historical research found in this article, the Morales-Santana Court examined Congress’s reasons for passing the current gender-biased scheme. The Court determined that “the Government has advanced no ‘exceedingly persuasive’ justification for . . . [the] gender-specific residency and age criteria.” Morales-Santana, 137 S. Ct. at 1698. Having determined that the gender-biased system established by Congress could not comport with the equal protection component of the Fifth Amendment’s Due Process Clause, the Court struck down the exception for unwed mothers, extending the five-year residency requirement to all U.S.-citizen parents abroad.

“[N]ew insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Id. at 1690 (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015) (alteration in original)). In Morales-Santana, the Court made plain that no longer could this “disparate criteria . . . withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.” Id. at 1698.