Why does federal law still discriminate against fathers? And what can the Supreme Court do to address the discrimination?
These are questions raised in Lynch v. Morales-Santana, an equal protection case that will be argued before the Court on Wednesday. The case challenges a federal nationality statute, first enacted in 1940, that is one of the few in the U.S. Code that explicitly discriminates based on sex.
The law provides that when a child is born to an unmarried U.S. citizen mother living abroad, the child automatically becomes a U.S. citizen, so long as the mother previously lived in the U.S. for one year, at any age. In contrast, a U.S. citizen father can transmit citizenship to his non-marital child born abroad only if he resided in the U.S. for many more years, at an age set out by statute.
Whether or not Luis Ramon Morales-Santana can remain in the U.S., his home of more than 40 years, depends on whether the Court strikes down the more onerous paternal residency requirements. His father, a U.S. citizen, wed his mother, a Dominican citizen, after Morales-Santana’s birth in 1962, and they moved from the Dominican Republic to the United States. At the time, the law provided that an unmarried father could transmit U.S. citizenship to his child if he lived in the U.S. for 10 years prior to the child’s birth, five of which must be after the father was 14 years old. Because Morales-Santana’s father left the U.S. just weeks before his 19th birthday, and did not return until after his son’s birth, the Board of Immigration Appeals concluded that he could not satisfy the requirements and thus could not transmit citizenship to Morales-Santana. Had Morales-Santana been born to a U.S. citizen mother with the same history of residency as his father’s, he would be a U.S. citizen today.