Why Does “Legitimacy” Matter in U.S. Nationality Law?
By: Betsy L. Fisher
Update: Just after publication, the Supreme Court ruled in Sessions v. Morales-Santana that gender-based distinctions in U.S. nationality law violate the Fifth Amendment's Equal Protection Clause.
Bad law makes bad cases. The recent case of Miranda v. Sessions, clearly demonstrates this principle. In Miranda v. Sessions, an individual with close ties to the United States, whose mother naturalized while he was still a minor, was denied U.S. citizenship because of reliance on antiquated notions of parental responsibility and gender roles. Although U.S. case law largely prohibits discrimination on the basis of gender stereotypes, and the international community is working to eliminate gender discrimination in nationality law, Miranda illustrates a lingering form of discrimination in U.S. nationality law.
Despite the court’s attention to issues of res judicata, the broader question raised by the case is: what role do findings of “legitimacy” have in nationality law? “Legitimacy” is a legal concept defining the legal rights and obligations of children to fathers; traditionally, a child of unmarried parents did not have a legal relationship with the child’s biological father. But in the day of DNA testing, why do such distinctions still matter?
Miranda was born outside the United States to unmarried parents and later moved to the United States with his biological mother. His biological parents later married, thus legally legitimating the relationship between Mr. Miranda and his father, although there is evidence that the father did not provide for or take a significant role in raising Mr. Miranda. Mr. Miranda’s mother became a naturalized U.S. citizen while Mr. Miranda was still a minor, and on that basis, Mr. Miranda asserted that he had obtained derivative U.S. citizenship as well.
Not so: the applicable law when Mr. Miranda was born, 8 U.S.C. 1432(a) provided that:
A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions: . . . . (3) . . . [T]he naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is unmarried and under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the [mother] . . . .
Congress eliminated this distinction of “legitimacy,” but only prospectively, leaving the nationality of individuals like Mr. Miranda subject to an antiquated gender stereotype: fathers are the head of the family, children should follow the status of their father rather than their mother, and that, when parents are not married, children should follow the status of their mother as “illegitimate” children. Because Miranda was legitimated, he followed his father’s nationality status. Miranda’s mother's naturalization did not result in Miranda becoming a naturalized citizen, even though he was under the care of his mother.
While these distinctions have been abolished in many areas of law, they remain in U.S. nationality law. Even after amending provisions that relate to the children of naturalizing parents, formerly in 8 U.S.C. 1432, this distinction still remains for children born to U.S. citizens—two entirely different sections cover births to U.S. citizens in wedlock (8 U.S.C. 1401) and out of wedlock (8 U.S.C. 1409). This distinction has survived judicial scrutiny thus far but faces a current challenge in the Supreme Court.
Of course, Congress has broad authority in setting immigration and nationality, but it must exercise its authority in ways that do not conflict with established constitutional rights, such as the guarantee of equal protection under the Fourteenth Amendment. Under that clause, many distinctions were struck down in the 1970s, particularly under litigation brought by now-Justice Ruth Bader Ginsburg.
As Cary Franklin noted, a prevailing principle in Equal Protection Clause sex discrimination cases is the anti-stereotyping theory, which “dictated that the state could not act in ways that reflected or reinforced traditional conceptions of men’s and women’s roles.” The assumption of 8 U.S.C. 1432(a) is that a child whose mother naturalizes, but whose father does not, has an attenuated tie to the United States. Notably, the assumption of 8 U.S.C. 1401 and 1409 is that a child born to a U.S. citizen mother out of wedlock has a closer tie to the United States than a child born out of wedlock to a U.S. citizen father. The juxtaposition of these statutes illustrates the arbitrariness of these stereotypes.
Assumptions that men are ill-suited to being caregivers, that men in all circumstances were better suited as executors of estates, that women were not entitled to benefits to support their spouses, and that women could be better trusted to drink alcohol, were all struck down as unconstitutional distinctions under the Fourteenth Amendment. Assumptions that men are always the leaders of families and that children—even those who are raised by their mothers—should follow their fathers’ status, or that children are not close to their biological fathers if their fathers are not married, are based on similarly harmful assumptions that should be rejected.
The international community, through two global campaigns, is working to end harmful gender-based distinctions in nationality law. UNHCR’s plan to end statelessness by 2024, as well as the Global Campaign for Equal Nationality Rights, aim to end gender-based discrimination. Ongoing distinctions in U.S. nationality law are outdated—and they also put the United States squarely at odds with international trends toward gender-neutral nationality laws.
Congress should amend nationality law to end distinctions of “legitimacy” and apply those changes prospectively and, failing their action to do so, courts should intervene to remove these harmful distinctions.
About the Author: Betsy L. Fisher is the Policy Director at the International Refugee Assistance Project. She is a graduate of the University of Michigan Law School, the University of Michigan Center for Middle Eastern and North African Studies, and Denison University. This post reflects her views only.