Justice Ginsburg and the Price of Equality
'The flood of news in recent days has all but swamped a fascinating Supreme Court decision that deserves more than a footnote to the term now coming to an end. The ruling defied expectations in nearly every way that counted and suggests a more complex picture of the Roberts court than its notably ideology-riven decisions usually offer.
The subject was citizenship, specifically the circumstances under which children born overseas to unmarried parents acquire United States citizenship when one parent is a citizen and the other isn’t. Cases dealing with citizenship have often sharply divided the court; in fact, six years ago, with Justice Elena Kagan recused, a four to four tie left the justices unable to resolve the precise question the court decided last week in Sessions v. Morales-Santana with near unanimity.
The justices typically defer to Congress in cases concerning citizenship. But this time, the court declared unconstitutional a provision of the Immigration and Nationality Act that makes the path to citizenship for foreign-born children of unmarried parents dependent on whether the citizen-parent is the mother or the father. An unwed mother can transmit her citizenship as long as she herself has lived in the United States for at least one year. But for unwed fathers, the prebirth residency requirement is five years (it was 10 years before a 1986 amendment). The differential treatment of mothers and fathers, six justices held in an opinion by Justice Ruth Bader Ginsburg, violates the constitutional guarantee of equal protection.
Justice Ginsburg’s distinctive voice was evident throughout the opinion, which drew on the sex discrimination cases she argued and won before the Supreme Court as a young advocate for women’s rights (many of those cases, like this one, had male plaintiffs) as well as on a landmark majority opinion she delivered early in her Supreme Court tenure that forced the all-male Virginia Military Institute to admit women. The greater burden placed on unwed fathers, she wrote in the new case, reflected age-old assumptions about unmarried parenthood and a stereotyped view of an unwed father’s ability to be a responsible parent: “Overbroad generalizations of that order, the court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives.” The law’s distinction between men and women, she wrote, “is stunningly anachronistic.”'>>>
https://www.nytimes.com/2017/06/22/opinion/ruth-bader-ginsburg-supreme-court.html?
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