Tp protect the gender equality, maybe we should insist that at least 4 out of 9 Supreme Court justices be female, if citizenship of unwed immigrant parents favors one sex against another.
We should similarly insist that 50% of all college degrees go to males, who currently get only 40% of degrees awarded.
2
Also, Justice Ginsburg's reasoning is strange. The "exception" to the rule was put in place for a reason. people who have children out of wedlock, aren't great planners as compared to people who get married and thus the shorter period of a year was to protect their rights.
By increasing the time limit for unwed mothers... Justice Ginsburg has done a great disservice to feminism and to spousal/parental justice. It is strange that someone who believes that homosexuals should have the right to marriage as a straight couple should ignore that basic fact that unwed mothers are often vulnerable and society usually treats them as an 'exception to the general rule' and gives them |privileges| for a certain reason.
By increasing the time limit for unwed mothers... Justice Ginsburg has done a great disservice to feminism and to spousal/parental justice. It is strange that someone who believes that homosexuals should have the right to marriage as a straight couple should ignore that basic fact that unwed mothers are often vulnerable and society usually treats them as an 'exception to the general rule' and gives them |privileges| for a certain reason.
Ginsburg has displayed Solomonic wisdom, realizing that had she chosen to level up, she would have lost the necessary majority. The decision is ultimately fair and is free of discrimination. Kudos to Ginsburg.
3
This ruling will increase the number of stateless children unless Congress acts quickly.
Most of the commenters here seem to be unaware of several key points:
-that the 5 year requirement to transmit citizenship mandates at least 2 of those years be after age 14.
-that most other countries do not give citizenship just because you're physically born in that country (no droit de la terre or birthright citizenship)
-that many countries will not give citizenship to the baby of a foreign unwed mother even if the father is a citizen
For these last two reasons, Congress tried to protect the babies of unwed mothers from becoming stateless by having the requirement for unwed mothers be "only" one year of continuous presence in the US pre-birth. (It's actually quite hard to prove you never left the country for 365 days so the threshold wasn't in fact lower. Because the US did not require passports for travel to Canada and Mexico until recently, none of those pre-passport-required years count since they assume you could have left the country during the 365 day window!!)
The requirement for everybody is now 5 years non-continuous presence with 2 of those years after age 14. This ignores biology: you can become a parent before age 16. It is easy to envisage other situations where this law will create stateless babies of American parents.
Most of the commenters here seem to be unaware of several key points:
-that the 5 year requirement to transmit citizenship mandates at least 2 of those years be after age 14.
-that most other countries do not give citizenship just because you're physically born in that country (no droit de la terre or birthright citizenship)
-that many countries will not give citizenship to the baby of a foreign unwed mother even if the father is a citizen
For these last two reasons, Congress tried to protect the babies of unwed mothers from becoming stateless by having the requirement for unwed mothers be "only" one year of continuous presence in the US pre-birth. (It's actually quite hard to prove you never left the country for 365 days so the threshold wasn't in fact lower. Because the US did not require passports for travel to Canada and Mexico until recently, none of those pre-passport-required years count since they assume you could have left the country during the 365 day window!!)
The requirement for everybody is now 5 years non-continuous presence with 2 of those years after age 14. This ignores biology: you can become a parent before age 16. It is easy to envisage other situations where this law will create stateless babies of American parents.
3
I am not sure if equality is achieved by leveling down i.e. requiring unwed mothers to have 5 years residency just like unwed fathers and strongly affects the right of the unborn/born child.
Children should not be penalized for their parents residency and the reason the US citizenship laws allow children of citizens of Americans living abroad the right to US citizenship is that residency or marital status of the parents doesn't change the fact of who they are. Every child of a citizen should have the RIGHT to become a citzen and by enacting this 5 years clause....
Children should not be penalized for their parents residency and the reason the US citizenship laws allow children of citizens of Americans living abroad the right to US citizenship is that residency or marital status of the parents doesn't change the fact of who they are. Every child of a citizen should have the RIGHT to become a citzen and by enacting this 5 years clause....
3
"Children should not be penalized for their parents residency..."
Sounds good. Maybe the child in question can go to Canada for free medical coverage. Or progressive countries like Sweden or Germany can foot the bill.
Sounds good. Maybe the child in question can go to Canada for free medical coverage. Or progressive countries like Sweden or Germany can foot the bill.
Thank God for Justice Ginsburg!
2
The OJ Simpson parole board is using an unconstitutional risk tool, by making it "riskier" for males than females to be released on parole. The 11-point score gives 0 for female, and 1 for male, and Nevada officials have been asked "why do I get a point for being a man?" This decision by Justice Ginsburg should therefore eliminate this sexist discrepancy.
"At the core of Ruth Ginsburg’s lifelong project is the conviction that there should be no separate spheres for men and women in the eyes of the law, and that distinctions based on what “most” men or women do, on the choices that “most” of them make, is an obstacle to full legal equality."
"At the core of Ruth Ginsburg’s lifelong project is the conviction that there should be no separate spheres for men and women in the eyes of the law, and that distinctions based on what “most” men or women do, on the choices that “most” of them make, is an obstacle to full legal equality."
4
I'm sure she'd agree that:
--Young women should be required to register for the draft, just as young men are required to do. There's no draft now, of course, but why have only one gender be at risk for non-voluntary service if we ever need to have another draft? Further, if a man does not register, he forfeits many federal and state benefits.
--We should get to work to help our boys and young men catch up in education, just as we got to work to help girls and young women catch up a generation ago.
Boys and young men commit suicide 4 times as much as girls and young women, according to the National Suicide Hotline. Boys are forced to take ritalin more, drop out more, are kicked out more, and go on to get only 40% of college degrees. Currently, this is all pretty much ignored.
--We should address the issues of sexual violence and domestic violence in the areas of female predators and male victims. According to a CDC study, men are just as likely to be victims of domestic violence attacks as are women (http://www.batteredmen.com/NISVS.htm). (http://www.batteredmen.com/index.htm)
--Young women should be required to register for the draft, just as young men are required to do. There's no draft now, of course, but why have only one gender be at risk for non-voluntary service if we ever need to have another draft? Further, if a man does not register, he forfeits many federal and state benefits.
--We should get to work to help our boys and young men catch up in education, just as we got to work to help girls and young women catch up a generation ago.
Boys and young men commit suicide 4 times as much as girls and young women, according to the National Suicide Hotline. Boys are forced to take ritalin more, drop out more, are kicked out more, and go on to get only 40% of college degrees. Currently, this is all pretty much ignored.
--We should address the issues of sexual violence and domestic violence in the areas of female predators and male victims. According to a CDC study, men are just as likely to be victims of domestic violence attacks as are women (http://www.batteredmen.com/NISVS.htm). (http://www.batteredmen.com/index.htm)
2
Maybe I didn't grasp all the nuance, but this decision seems like a way to have people figure it's simply best to get married.
1
Justice Ginsburg needs to recuse herself from the "travel ban" case headed to the high court. Her unprofessional, and frankly absurd, comments about moving to New Zealand should Donald Trump win the presidency make her a prejudiced justice. Go ahead and flag me. She needs to look at the calendar and her wonderful legacy.
5
When an obviously gifted person in a position of leadership wants to make a difference in society, she must choose a specific goal and use all her skills to achieve it. Ruth Bader Ginsberg has chosen feminism, the real deal, not the punching bag feminism exploited rhetorically in the current political wars.
In addition she has modeled in her judgments how a constitutional democracy should work with 3 co-equal, checked and balanced, branches. This is not "naive"; it is good teaching and adherence to standards, especially when those standards are subject to strong winds.
Today, we have a headless executive branch. The Chief Executive is incompetent, incoherent, and lazy. He farms out our military and foreign affairs conduct to a general and a former Exxon CEO. We are adrift in a raging sea.
The cure is censure, not censorship. People must stand up and confront the lack of leadership in the other two branches of government. Congress is abdicating its role, weakened by destructive polarization and loss of basic intelligence. It is great to see at least one Supreme Court justice on a steady course and showing the country how to actually implement the Constitution.
But, then, I'm just a historian, and the histrionic time in which we live is oblivious to calm assessments, leading huge pluralities of our citizen voters to lash out at imagined enemies.
In addition she has modeled in her judgments how a constitutional democracy should work with 3 co-equal, checked and balanced, branches. This is not "naive"; it is good teaching and adherence to standards, especially when those standards are subject to strong winds.
Today, we have a headless executive branch. The Chief Executive is incompetent, incoherent, and lazy. He farms out our military and foreign affairs conduct to a general and a former Exxon CEO. We are adrift in a raging sea.
The cure is censure, not censorship. People must stand up and confront the lack of leadership in the other two branches of government. Congress is abdicating its role, weakened by destructive polarization and loss of basic intelligence. It is great to see at least one Supreme Court justice on a steady course and showing the country how to actually implement the Constitution.
But, then, I'm just a historian, and the histrionic time in which we live is oblivious to calm assessments, leading huge pluralities of our citizen voters to lash out at imagined enemies.
6
The New York Times must be commended for superb on target writing of Linda Greenhouse. She is offering us a perfect greenhouse where diversity & inclusive can grow. In San Francisco (after participating in Washington Dc's Equality March) Playwright/professor/activist Dr. Larry Myers of St. John's University has ignited the
Playwrights Sanctuary. Endorsed by the late legendary Playwright Edward Albee, Myers Project is dealing with gender issues. Focusing on the most needy--gay homeless teens & those without resources who wish to have their unheard voices be heard- the Project will continue in Manhattan in fall.
Playwrights Sanctuary. Endorsed by the late legendary Playwright Edward Albee, Myers Project is dealing with gender issues. Focusing on the most needy--gay homeless teens & those without resources who wish to have their unheard voices be heard- the Project will continue in Manhattan in fall.
"a judicial restraint liberal"?
Could have fooled me, but this was a good opinion.
Could have fooled me, but this was a good opinion.
1
But shouldn't the leveling down apply only to the future? And allow Morales-Santana citizenship?
Surely there have been children of unwed mothers who have benefitted from this exception in the 54 years of Morales-Santana's life...?
Will they have their citizenship stripped retroactively?
If not there is still a violation of equal protection, no?
Surely there have been children of unwed mothers who have benefitted from this exception in the 54 years of Morales-Santana's life...?
Will they have their citizenship stripped retroactively?
If not there is still a violation of equal protection, no?
1
The article says the decision will be applied prospectively, but Mirales-Santana is being deported because of a criminal conviction.
I don't understand how people can condemn this law without knowing why the law was made this way.
I assume there had to be a reason.
My guess it has something to do with rape.
If a female is raped and a child is conceived it is logical to make it easier to
grant that child citizenship.
This is what I call a educated guess.
If you agree please comment.
I assume there had to be a reason.
My guess it has something to do with rape.
If a female is raped and a child is conceived it is logical to make it easier to
grant that child citizenship.
This is what I call a educated guess.
If you agree please comment.
3
This kind of thoughtful and insightful analysis is why I subscribe to the NYT.
Thank you!
Thank you!
2
God bless the RBG
(and the Independent Judiciary)
(and the Independent Judiciary)
With respect to the always-insightful Ms. Greenhouse, leveling down here wasn't the product of compromise. There is no constitutional basis for a judicial ruling expanding naturalization. That power is expressly delegated to Congress in Article I, section 8., cl.4, as the Supreme Court has repeatedly recognized. There likely was compromise on a separate issue: in Nguyen v. INS (2001), Justice Kennedy abandoned Justice Ginsburg's stricter version of intermediate scrutiny set out in United States v. Virginia (1996), when he sustained a related provision in the same statute at issue in the Morales-Santana case against an equal protection challenge. Justice Ginsburg's decision to distinguish, rather than overturn, Nguyen, was almost certainly a compromise needed to secure Kennedy's vote in this, more recent, case.
2
My mother came to US in 1912 as a 15 year old. In 1924 she became an American citizen. In 1931 she married my father a Polish citizen in Paris, France. I was born 8-6-1932 in Paris. By birth I was considered
Polish. I was naturalized by my parents as French. In 1934, my mother had to take me to the US while I was under the age of 2 in order to legally take her child to the Us. I wold have been unable to be taken to the US over the age of 2.
My father fortunately sold his business and came to the US still a Polish citizen. I remained a French citizen until my father became a citizen in 1939. My citizenship was derivative and I obtained a certificate from The Dept. Of Immigration when I was 19.
Both my parents were Jewish. If my parents had stayed in France, my father and I most likely would have been candidates for the death camp.am I now a citizen by birth.?
Polish. I was naturalized by my parents as French. In 1934, my mother had to take me to the US while I was under the age of 2 in order to legally take her child to the Us. I wold have been unable to be taken to the US over the age of 2.
My father fortunately sold his business and came to the US still a Polish citizen. I remained a French citizen until my father became a citizen in 1939. My citizenship was derivative and I obtained a certificate from The Dept. Of Immigration when I was 19.
Both my parents were Jewish. If my parents had stayed in France, my father and I most likely would have been candidates for the death camp.am I now a citizen by birth.?
1
How can we justify treating married parents differently to unmarried parents? Or that citizens who give birth abroad are treated differently than those who give birth in the US. We are all tax paying citizens, we should be allowed to transmit our citizenship equally.
Not only does the law treat these classes of citizens unequally, It is antiquated and arbitrary. I live in Switzerland, which does not grant citizenship to children born here. Had I not passed the "residency" test or had a parter who was able to transmit his German citizenship, my children would have been stateless.
Not only does the law treat these classes of citizens unequally, It is antiquated and arbitrary. I live in Switzerland, which does not grant citizenship to children born here. Had I not passed the "residency" test or had a parter who was able to transmit his German citizenship, my children would have been stateless.
2
That's fascinating. I wasn't aware that a they wouldn't grant citizenship on the basis of birth. Had your partner been Swiss, I assume that would have sufficed?
As for treating married and unmarried unequally, that is one of the things this case resolved. Now they are the same.
As for treating married and unmarried unequally, that is one of the things this case resolved. Now they are the same.
I am forced by the sheer competence of this essay - superbly well informed, historically instructive, topically relevant, and clearly written - to say thanks to the Post for publishing Ms. Greenhouse's columns, and to Ms. Greenhouse for writing them. Full marks from a decidedly non-lawerly reader.
14
"the Post"? This is the New York Times.
5
Ginsburg is my hero.
Closely followed by Linda Greenhouse.
Closely followed by Linda Greenhouse.
10
This is a classical Linda Greenhouse column -- so insightful. I almost missed it, the case that is.
Thank you Linda for your alertness and your wisdom.
Thank you Linda for your alertness and your wisdom.
8
Weren't the gender differences in the "old" requirements attributable to the basic idea that we know who your mother is, but fatherhood is harder to prove? Obviously, genetic testing makes both easy to figure out, but that's a recent development. Maybe the assumption driving the burden on father's is the reasonable notion that father who sticks around for longer more likely to actually be (or at least want to act as) the father?
5
Your speculation seems sound but Ginsburg throws it out the window as an old generalization about the nature of men and women. Maybe, but I'm interested in knowing what her beliefs are about the nature of men and women because apparently they are now incorporated into the equal protection clause.
2
I see what you're saying, but it's not speculation about the nature of men and women to say that (in the absence of testing), when a baby is born to any couple (married or unmarried), the birth itself tells us who the mother is. Not so with the father. That's observable biology. Agreed that technology enables confirmation of fatherhood that heretofore was not possible...but the nature of men and women on that front hasn't changed.
4
All across society and government we continue to see the past continue to be more important than the future.
3
Couldn't it just be that it's the right result? It seems pretty obvious it is. The special status for unwed mothers was an exception to the general rule. If the exception to the general rule violates the constitution, why would you throw out the general rule in favor of the exception, instead of throwing out the exception in favor of the general rule?
It's a harsh result in the context of the individual case, but the Supreme Court doesn't care about individual cases, it cares about issues.
It's a harsh result in the context of the individual case, but the Supreme Court doesn't care about individual cases, it cares about issues.
22
The "exception" to the rule was put in place for a reason. people who have children out of wedlock, aren't great planners as compared to people who get married and thus the shorter period of a year was to protect their rights.
By increasing the time limit for unwed mothers... Justice Ginsburg has done a great disservice to feminism and to spousal/parental justice. It is strange that someone who believes that homosexuals should have the right to marriage as a straight couple should ignore that basic fact that unwed mothers are often vulnerable and society usually treats them as an 'exception to the general rule' and gives them |privileges| for a certain reason.
By increasing the time limit for unwed mothers... Justice Ginsburg has done a great disservice to feminism and to spousal/parental justice. It is strange that someone who believes that homosexuals should have the right to marriage as a straight couple should ignore that basic fact that unwed mothers are often vulnerable and society usually treats them as an 'exception to the general rule' and gives them |privileges| for a certain reason.
"The justice noted that the immigration law’s basic framework dates from the 1940s and ’50s, “an era when the lawbooks of our nation were rife with overbroad generalizations about the way men and women are.”' I'd be interested in knowing Justice Ginsburg's opinions about "the way men and women are." She concluded that the old ones are "overbroad" so I guess hers are different (narrower?) than the ones she criticized. But the decision seems to turn on her finding that these generalizations about some essential qualities of men and women resulted in discrimination. I would like to know what generalizations about the way men and women "are" are constitutionally permissible in Justice Ginsburg's view.
1
Unwed immigrant parents now have the freedom to be treated equally unfairly by an arbitrary regulation. Who profited most by this political arrangement I wonder?
4
The point of this ruling is to treat female and male US citizens the same with regard to citizenship of children where one parent is a citizen and the other isnt, married or not, AND the child is born outside the US. An immigrant parent who obtains citizenship, leaves the country and has a child with a partner who is not a citizen will be treated the same as a US citizen who was born in the US, leaves the country and has a child with a partner who is not a US citizen.
3
You completely misread the article. Read it again- it's about SCJ ruling on citizenship for children born to US citizens abroad, not about immigrants at all. I guess when your mind is set against something, you tend to read your prejudices into everything you see.
This excellent news analysis is yet another example of why Linda Greenhouse truly is a treasure for the readers of the NYT.
9
The outcome in this case completely aside, it is refreshing to consider that the court acted solely based upon the constitution and deference to Congress who makes the law. Exactly how these branches of government are supposed to work.
15
A female US citizen who has resided in the US for just 4 years of her life and her non-citizen partner have a child outside of the US. If they are unmarried the child is a US citizen; if they are married the child is denied citizenship. Had the court extended this favor to the male partner, the same inequality would still apply toward married parents. Forget gender -- should the child of unmarried parents ever be given advantage over the child of married parents, as it pertains to citizenship, based solely on marital status. Why is surprising that the justices ruled as they did?
2
No, for married couples the requirement is five years. Before this ruling the requirement for unmarried fathers was 5 years, but for unmarried mothers was one year. Now it's five years for everyone, regardless of gender or marital status.
2
Kudos, applause and 21-gun salute to Justice Ginsburg. This case of pre-parental residence equality is clearly a decision on equal rights of the two natural genders (I emphasize, natural), and it has neither overtones of machismo, nor of militant feminism of the "touchy-feely", "goody-goodies", and "coochiemoochie".
1
By "leveling down" to the 5 year residency requirement from the 1 year requirement previously extended to unmarried mothers, isn't the Court thereby avoiding an (obvious) anticipated future challenge based on marital status? If the Court had decided to "level up" unmarried fathers to the 1 year requirement, then a married mother or father could bring a later challenge based on an advantage unmarried parents have. By "leveling down," ALL parents have the same rights; equality is achieved.
13
"...reflected age-old assumptions about unmarried parenthood and a stereotyped view of an unwed father’s ability to be a responsible parent..."
No i didn't. It reflected the eternal uncertainty of paternity. In a married couple, paternity may be equally uncertain, but a legal and cultural bonds differentiates them from unmarried couples. It's amazing to me how much we have forgotten about human beings in a state of nature.
No i didn't. It reflected the eternal uncertainty of paternity. In a married couple, paternity may be equally uncertain, but a legal and cultural bonds differentiates them from unmarried couples. It's amazing to me how much we have forgotten about human beings in a state of nature.
Linda, while I respect your analysis and frequently agree, I disagree with your conclusion on this one. Leveling down may be harsh, but it's the appropriate remedy for a court. An example will help clarify. Suppose a state enacted a program that offered monetary grants to small businesses in the state owned by women. Suppose a male-owned small business brought an action challenging the program. If a court (up to and including the Supreme Court) found the program unconstitutional, what would the appropriate remedy be - striking the program as a whole or requiring the state the offer the grants to male-owned businesses as well? There's no immediate clear answer, but once the program is found unconstitutional, it's up to the state to decide whether to offer it to all or cancel it entirely. Offering it to all would require a significant amount of funds, perhaps far exceeding the amount the state ever intended to spend.
5
I think that Ginsburg's maneuver is driven mostly by the pending Trump's "travel ban" case. I think that she tries to establish two things with this ruling:
- that Constitution should govern US immigration rules
- that immigration rules are the prerogative of Congress, and noone else
I think that she's getting ready to write an argument that Trump's travel ban is valid, because, just like unequal treatment of mothers and fathers is anti-constitutional, so are religion-based travel actions, and that President has no right to do such things because immigration belongs to Congress.
But that's just a guess; we'll see in a few months.
- that Constitution should govern US immigration rules
- that immigration rules are the prerogative of Congress, and noone else
I think that she's getting ready to write an argument that Trump's travel ban is valid, because, just like unequal treatment of mothers and fathers is anti-constitutional, so are religion-based travel actions, and that President has no right to do such things because immigration belongs to Congress.
But that's just a guess; we'll see in a few months.
1
Congress in its 1965 Immigration Law expressly forbids religious discrimination.
Trump may not constitutionally override this law.
That said, the Court may well punt. There's as yet no Circuit split decision to resolve.
Trump may not constitutionally override this law.
That said, the Court may well punt. There's as yet no Circuit split decision to resolve.
2
Trump did not declare a "religion-based" travel ban. Indeed, the most populous Muslim countries were not included in the the ban.
Thank God for Justice Ginsburg, for her life-long commitment to the true meaning of "equal protection of law," and thank God for Linda Greenhouse, for her unfailing ability to 'splain it all to us in clear but nuanced and highly astute form.
One point Greenhouse omitted: if Chief Justice Roberts voted with the majority, that means he was the one who assigned the opinion to Justice Ginsburg. (It's even possible that he voted with the majority in order to be able to assign the opinion.) I take that as a sign of great professional respect for Justice Ginsburg, and one that speaks well not just of Justice Ginsburg, but also of Chief Justice Roberts.
politicsbyeccehomo.wordpress.com
One point Greenhouse omitted: if Chief Justice Roberts voted with the majority, that means he was the one who assigned the opinion to Justice Ginsburg. (It's even possible that he voted with the majority in order to be able to assign the opinion.) I take that as a sign of great professional respect for Justice Ginsburg, and one that speaks well not just of Justice Ginsburg, but also of Chief Justice Roberts.
politicsbyeccehomo.wordpress.com
10
So during that five-year waiting period, does the U.S. consider the child to be a citizen of the non-citizen parent's country? What might the n-cpc have to say about the child's citizenship? Might this all end up with the child being stateless for five years?
It seems there is another class that has an argument--unmarried parents not having the same treatment under the law as married parents, for what reason?
It seems there is another class that has an argument--unmarried parents not having the same treatment under the law as married parents, for what reason?
2
Presumably the child is a citizen of whatever country it was born in. I know of no countries that deny citizenship to people born there simply because one parent wasn't a citizen (though I suppose such a country could theoretically exist and I just missed it)
U.S. and Canada are the only two developed nations that grant automatic citizenship at birth to the children of illegal and temporary immigrants.
6
I was presuming (wrongly) that the child would be born in the home country of the other parent. Clearly, that isn't always the case, but that was the scenario I had in mind.
Let me know when courts start treating men and women equally in divorce and custody proceedings.
6
God, I miss the Warren Court.
Yes, that Court's school desegregation decisions and other school policy issues yield marvelous results. (I am not endorsing segregation, but remarking that when the Court attempts to craft legislation and policy, intentions more often than not create even more problems and hardships. Read any account of the compulsory school busing cases--especially East Bay San Francisco, where liberal parents fought busing with venom and other adversarial methods.
Well... they way the men and women in Congress are is, they'd much prefer to avoid comprehensive immigration reform in favor of endless campaign fundraising.
Isn't it possible Justice Ginsburg was nudging Congress to act more deliberately?
Isn't it possible Justice Ginsburg was nudging Congress to act more deliberately?
2
Such Justices as Neil Gorsuch say that they do not make law but only interpret it. But the distinction is often blurry. To keep consistent with the law it is often necessary to do painful, 'unjust' things. Perhaps justices need to create or reinterpret laws to make them more humane. But the ultimate question is what is justice? We put 9 members on the court because the answer to this question is so slippery.
Personally I would have hoped that the court would have given both faters and mothers the one year decision. But justice is not always shaped by this, but by the climate in society. It was true in Dred Scott and it is true now.
Personally I would have hoped that the court would have given both faters and mothers the one year decision. But justice is not always shaped by this, but by the climate in society. It was true in Dred Scott and it is true now.
2
I can't see what would be just about giving priority to the children of unmarried couples over the children of married couples. And apparently neither could the court.
4
Leveling down was the right move in this case. Justice Ginsburg just set a precedent that has nothing to do with immigration. Gender aside, an unmarried mother was granted preferential treatment under the law. A married mother didn't not receive the same advantage. By taking away the unmarried mother's legal advantage, you've established an important corollary: When the law provides legal privilege to a married mother, an unmarried mother deserves the same protection. Smart move.
7
As the American father of a foreign born child, I was shocked to learn the requirements of passing American citizenship to my son when we went to a US consulate to file his paperwork. I am an American. I have a passport. Beyond proving those facts, how is it constitutional to place additional requirements?
6
Because the Constitution does not explicitly provide for citizenship to be inherited, at all. Going by certain strict readings, your son should not be a citizen until he can go through the naturalization process like any other immigrant.
7
Nonsense. Because his father is a citizen and presumably has lived in the US the requisite number of years (5) although born outside the United States his son is a NATURAL-BORN citizen (born a citizen) and does not require naturalization.
In fact, his son is eligible to the Presidency. You really ought to read athe Constitution and applicable laws.
In fact, his son is eligible to the Presidency. You really ought to read athe Constitution and applicable laws.
3
I imagine that objective reasoning justifying different requirements could have been that when the original law was passed DNA tests were not available, then later not easily available, to prove beyond doubt that a citizen-father was indeed the natural father of a claimant of citizenship, where the identity of the mother was less in doubt. Today, of course, such tests are fairly easily obtainable and can be admitted as evidence, so the rationale for such a difference is far less compelling.
As fewer and fewer reasons, even pretexts, for unequal treatment of the sexes before the law fall to science, it's good to see that the unequal treatment is addressed and eliminated. But a goad always is necessary, and as Linda points out Justice Ginsburg has never failed to be a sharp one indeed.
As fewer and fewer reasons, even pretexts, for unequal treatment of the sexes before the law fall to science, it's good to see that the unequal treatment is addressed and eliminated. But a goad always is necessary, and as Linda points out Justice Ginsburg has never failed to be a sharp one indeed.
7
It seems very strange to me that a woman who is an American citizen could give birth to a child who is not considered a citizen. That seems wrong on so many levels. How can the fruits of a citizen not be the same?
When we confer citizenship on someone, there are not "levels" of citizenship. These are Americans and their children should be treated as such. If a 5-year residency is the requirement for citizenship, fine, make all applicants undergo that. But don't penalize children based on arbitrary timelines and their parents' travel.
When we confer citizenship on someone, there are not "levels" of citizenship. These are Americans and their children should be treated as such. If a 5-year residency is the requirement for citizenship, fine, make all applicants undergo that. But don't penalize children based on arbitrary timelines and their parents' travel.
6
Wouldn't that mean that anyone anywhere in the world who was the direct descendant of an American citizen would also be a citizen?
4
Equal protection under the law, regardless of sex, is the essence of the ruling. Go Ginsburg!
7
AT this juncture, I would not want Congress to decide anything of any consequence. I say that even before I read the so-called health reform bill.
2
Who can possibly top Justice Bader- Ginsburg, Always the best and fairest Supreme court justice......ever.
4
the abortion laws apply equally to men and women. Men seem to very rarely have any opportunity to deal with them, however, since they very rarely become pregnant.
3
To reiterate another comment, when it comes to abortion only women have the right to make the decision. The father is totally excluded from the process, either pro or con. This is not a liberal vs. conservative issue. It is an issue of "equality". if "equality" is to be considered "pure".
2
I would fully support any man who wanted to have an abortion, it is his body and he can do with it what he likes
9
And what would you say to a man who is the father and you are the mother and he wants that abortion and you do not?
And what would you say to the man who is the father and you are the mother and he does not want that abortion and you do?
Reasons on both sides is a much more extensive discussion for a later day but answer these simple questions first.
And what would you say to the man who is the father and you are the mother and he does not want that abortion and you do?
Reasons on both sides is a much more extensive discussion for a later day but answer these simple questions first.
The ruling and RBG's opinion are spot on. The role of the court is to rule whether or a piece of legislation and law is constitutional. It is the role of Congress to create and recreate the laws and legislation.
26
Terrific essay. Why don't you come back full-time?
4
Justice Ginsberg has been way ahead of the rest of us on many issues. Thus, I'm sure she'd agree that:
--Young women should be required to register for the draft, just as young men are required to do. There's no draft now, of course, but why have only one gender be at risk for non-voluntary service if we ever need to have another draft? Further, if a man does not register, he forfeits many federal and state benefits.
--We should get to work to help our boys and young men catch up in education, just as we got to work to help girls and young women catch up a generation ago.
Boys and young men commit suicide 4 times as much as girls and young women, according to the National Suicide Hotline. Boys are forced to take ritalin more, drop out more, are kicked out more, and go on to get only 40% of college degrees. Currently, this is all pretty much ignored.
--We should address the issues of sexual violence and domestic violence in the areas of female predators and male victims. According to a CDC study, men are just as likely to be victims of domestic violence attacks as are women (http://www.batteredmen.com/NISVS.htm). (http://www.batteredmen.com/index.htm)
--Young women should be required to register for the draft, just as young men are required to do. There's no draft now, of course, but why have only one gender be at risk for non-voluntary service if we ever need to have another draft? Further, if a man does not register, he forfeits many federal and state benefits.
--We should get to work to help our boys and young men catch up in education, just as we got to work to help girls and young women catch up a generation ago.
Boys and young men commit suicide 4 times as much as girls and young women, according to the National Suicide Hotline. Boys are forced to take ritalin more, drop out more, are kicked out more, and go on to get only 40% of college degrees. Currently, this is all pretty much ignored.
--We should address the issues of sexual violence and domestic violence in the areas of female predators and male victims. According to a CDC study, men are just as likely to be victims of domestic violence attacks as are women (http://www.batteredmen.com/NISVS.htm). (http://www.batteredmen.com/index.htm)
9
I hope that the courts focus on reverse discrimination here previews a tougher stance in affirmative action down the road. We need to strike down race preferences once and for all.
7
I agree 100%. Strike down race preferences immediately after the grossly tilted playing field has been leveled. Once the institutional & systemic racial injustices that permeate many parts of our culture and society have been wiped out, affirmative action will be completely unnecessary. I applaud your sentiment and welcome your efforts to help right those deep wrongs.
4
Marriage is overrated, and almost never in the interest of women.
3
Actually,it is never in the interest of men. You got that backwards, especially in America,
2
Linda Greenhouse is one of the very few reasons I don't cancel my NYT subscription.
3
This decision is pure Ginsburg, but her goal is not equality of the sexes, her goal is equality of the sexes because that is how she sees the constitution. She pushes politics aside, to the best a human can, and judges cases as necessary. She is still a law professor at heart and she holds the constitution in high esteem.
7
There should be equality - both male and female parents should have to live in the US for 10 years before their child is considered an American.
2
What I found disappointing in this opinion -- apart from the outcome -- and even in Greenhouse's discussion, is the failure to acknowledge the underlying bias in the statutory framework. Ginsburg's analysis regarding the remedy hinges on the provision for mothers being framed as an exception to a more general rule (applicable to fathers). So the default is male, and the exception is female. (Similarly, the default is married, and the exception is unmarried.) Had the drafters of the original statute considered mothers first, then the longer residency period would have been the exception to the rule and the remedy would have gone the other way. When men are the default citizen and women the exception, everyone loses.
3
To me the underlying problem here doesn't have to do with where a person is born or who their parents are, it has to do with denying citizenship to someone who came to the US at age 13, 41 years ago. If that person becomes successful after 41 years of US American education and life as an adult, then that person is successful as a US American, since the influences of early childhood would become largely irrelevant compared to 41 years worth of influence in the US. By the same token, if that person exhibits flaws such as the commission of crimes, then they are a US American criminal; once again, how can 13 years of early childhood experiences be more formative than the subsequent 41 years of life in the US? I believe strongly that regardless of how they came here, someone who has lived in the US more than four decades is by any reasonable measure a US American, and if they want it, they should be awarded citizenship on that basis alone. I don't know exactly where the cut-off should be in terms of years of residence to qualify as a “de-facto US citizen”, but I am sure that 41 years is more than long enough.
6
I do not think there is anything in the law that mentions the marital status of the parents. I don't know where Greenhouse found that. This article seems to have confused a lot of the commenters, both with what it says and doesn't say.
1
Sec 301 does not mention marital status, but sec 309 is entirely devoted to children born out of wedlock. The law says that fathers of children born out of wedlock must agree to provide financial support until the child is 18, and the child must be "legitimated" before he/she turns 18, which is the legal process fathers have to use to establish parental rights.
2
Excellent. I also think that the science of paternity has advanced enough so that the differences in treatment of female and male parents can be harmonized. It was much easier in the past to establish maternity than paternity that the differential treatment was very commonsense, but now, well, set the time periods equally. I hope that means 5 years for both men and women, not 1 year for both?
3
The article is pretty clear that it is now five years for either parent. Did you actually read it?
3
One might reasonably wonder why the child of American citizens would not be an American citizen, period, without residence requirements. A very strange law.
9
By the same measure, a foreign mother with enough resources could schedule a C-section in the United States and give birth to an American citizen by default. Very strange.
1
If only one parent is a citizen and the two parents are not married, and the one citizen parent has not lived in the US for a long time but did live there at least (now, with this decision) five years of their life, this law defines the status of children.
2
Because the Fourteenth Amendment. Citizens must be born or naturalized in the United States. Even a preference for the foreign-born children of US citizens, versus other foreign-born persons, is not explicit in the Constitution.
1
Women and men are different, physically, mentally, emotionally. They may arrive at the same decision, but they reach that decision through very different processes. They need to have equal opportunity, but their differences must be recognized and I would say respected. It is part of what gives our world its vibrancy.
1
That unequal treatment existed in this situation has been resolved, and the solution seems appropriate. It reminded me of a case from overseas.
i am a female, naturalized American born in the UK. About thirty years ago in the UK men lobbied the government of the day for fairness under retirement pension law, as women could retire at age 60 and claim their full state pension while men had to wait until age 65 for the same benefit. After much debate the retirement age was raised to age 65 for women, commencing with women born in 1959, which includes me. men were frustrated as they wanted to retire at age 60, and women were furious at being made to wait an extra five years. The win did not feel like a win to many people, but it made sense. As the saying goes, "Be careful what you wish for!"
i am a female, naturalized American born in the UK. About thirty years ago in the UK men lobbied the government of the day for fairness under retirement pension law, as women could retire at age 60 and claim their full state pension while men had to wait until age 65 for the same benefit. After much debate the retirement age was raised to age 65 for women, commencing with women born in 1959, which includes me. men were frustrated as they wanted to retire at age 60, and women were furious at being made to wait an extra five years. The win did not feel like a win to many people, but it made sense. As the saying goes, "Be careful what you wish for!"
59
Given life expectancy, women should have to wait until later to retire, if anything. And that's ignoring that women are likely to work less hours and weeks every year (and thus contributing less towards the system that funds it).
2
I don't know how the funding or payment mechanism works, but if you're looking for fairness, then shouldn't those that contributed less simply be identified in actuality, rather than guessing by virtue of their gender?
1
Men and women in respect to many things are the same but not in all things,
Liberals will tell you different and then will not when it serves there purposes.
If there is no legal difference between the status of a mother a woman or a father a man then how can a mother have have the right to abort a pregnancy
if the father does not approve.
You can not unless there is a difference.
Liberals will say the life form I call a unborn child is really part of the woman's body.
If you agree with that opinion then you are saying there is a real legal difference and that would justify treating the mother child relationship differently from a father child one.
In my opinion you can not hold a opinion just as long as it conforms with your agenda.
This was bad decision and even liberals should see it.
Liberals will tell you different and then will not when it serves there purposes.
If there is no legal difference between the status of a mother a woman or a father a man then how can a mother have have the right to abort a pregnancy
if the father does not approve.
You can not unless there is a difference.
Liberals will say the life form I call a unborn child is really part of the woman's body.
If you agree with that opinion then you are saying there is a real legal difference and that would justify treating the mother child relationship differently from a father child one.
In my opinion you can not hold a opinion just as long as it conforms with your agenda.
This was bad decision and even liberals should see it.
6
You are conflating the mother-child relationship with the mother's relationship to her own body. They are two separate things.
Suppose, for example, that a husband wanted a vasectomy. He would not need his wife's permission and would not be subject to her wishes, even if she wanted children with him in the future.
This boils down to the ongoing difference between those who believe a fetus is entitled to all the rights of a person - superseding the rights of the mother - and those who don't.
Suppose, for example, that a husband wanted a vasectomy. He would not need his wife's permission and would not be subject to her wishes, even if she wanted children with him in the future.
This boils down to the ongoing difference between those who believe a fetus is entitled to all the rights of a person - superseding the rights of the mother - and those who don't.
5
If you contend a woman has a right to a abortion because she has the right to control her body .
I am against abortion and I do not accept the idea this life that is developing inside her is part of her body but for liberals who do that should be a reason to say the relationship a mother has with a child is different from the one a father has.
I think this would justify making a law that is based on a
relationship different for a mother than a father.
In this case citizenship is being given to a child based on a parent child relationship.
If you accept this argument then you should see this isn't about equality of the sexes.
It's about the relationship a parent has to its offspring's .
I am against abortion and I do not accept the idea this life that is developing inside her is part of her body but for liberals who do that should be a reason to say the relationship a mother has with a child is different from the one a father has.
I think this would justify making a law that is based on a
relationship different for a mother than a father.
In this case citizenship is being given to a child based on a parent child relationship.
If you accept this argument then you should see this isn't about equality of the sexes.
It's about the relationship a parent has to its offspring's .
2
Her uterus is part of her body, stone. Abortion is about a woman's right to bodily autonomy because the fetus is inside her and attached to her body - not because a fetus is part of her body. Pregnancy, labor and delivery are not trivial or risk-free processes, and bodily autonomy - not the status of the fetus - is what gives a woman the right to decide whether or not to continue a pregnancy.
Ironic, since in the USA all male citizens in every state, before all courts, at every level and before all law enforcement departments are generalized inferior to females. There exists unequal protection under the law, and the benefits are conferred upon women to the exclusion of men before the law.
5
Really? Want to work for lower wages? And therefore get less when you retire?Get shut out of the executive suite and senate conferences on health care? Have your authority questioned no matter your education and experience? Be subject to sexist ridicule for being too ugly or too pretty, too young or too old?" Have to deal with arrogant, smug, and oblivious men like yourself?
2
Funny, so typical, how you shift the subject to a woman's inability to stand up for herself by herself.
Equality before the law is the issue, women want equality, but that should be reflected in the courts, the laws and in law enforcement and society but it is not.
It is men who are second class citizens in this country not women.
Men should never enter into contract with women, no marriage, no children, no alimony, no child support, no lawsuits.
Equality before the law is the issue, women want equality, but that should be reflected in the courts, the laws and in law enforcement and society but it is not.
It is men who are second class citizens in this country not women.
Men should never enter into contract with women, no marriage, no children, no alimony, no child support, no lawsuits.
1
I believe that in the US any man who so chooses is free to not do any of those things.
"Equal but separate" has always been a matter in flux. Quite frankly, both men and women are social, and sexual, beings, opposites but complementary, a duality the Andean folks took for granted (as opposed to the dry individuality we tend to accept in the "West"), where males would share responsibilities, and pleasures, with women, as a matter of course. The 'macho' society we are encumbered with at present is far from ideal, and Ms Ginsburg, in her quiet yet firm grasp, represents. And as usual, wisdom is ingrained in women, kind enough to include us, men, in it's embrace, however undeserving and vain and arrogant we may appear to the world.
1
> The justices typically defer to Congress in cases concerning citizenship.
Justices take an oath to defer to the Constitution and to require Congress to defer to the Constitution. Justices who evade the Constitution must be removed. Our Constitution protects individual rights, not the democratic violation of individual rights. See _Judicial Review In An Objective Legal System_ by Tara Smith.
Justices take an oath to defer to the Constitution and to require Congress to defer to the Constitution. Justices who evade the Constitution must be removed. Our Constitution protects individual rights, not the democratic violation of individual rights. See _Judicial Review In An Objective Legal System_ by Tara Smith.
1
Should it come as a surprise that it depends on what the definition of "are" is?
Good analysis!
What a thoughtful analysis. If I were Prez, L.G. would be my nominee to the SCOTUS.
3
it's always a pleasure reading ms greenhouse's columns.
5
It is a sign of our times the remarkable Justice Ruth Bader Ginsburg penned a near Solomon-like ruling. It is just in terms of strict equality under the law, but ultimately harsh - like the close-fisted sentiment Republicans express every day.
This timeliness factor seems especially true considering a reference in the justice’s book, In My Own Words, to her lifelong favorite Emma Lazarus’ words that appear at the base of the Status of Liberty:
“… Give me your tired, your poor,
Your huddled masses yearning to breathe free,”
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me …”
Oh, say can you see America’s welcome mat being rolled back, tossed in the basement and not to be retrieved in our time. This is just another sign.
This timeliness factor seems especially true considering a reference in the justice’s book, In My Own Words, to her lifelong favorite Emma Lazarus’ words that appear at the base of the Status of Liberty:
“… Give me your tired, your poor,
Your huddled masses yearning to breathe free,”
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me …”
Oh, say can you see America’s welcome mat being rolled back, tossed in the basement and not to be retrieved in our time. This is just another sign.
1
One must also consider that Justice Ginsburg's decision now sets a potent equal protection precedent for lawmakers. Regardless of the specific outcome in this case, legislators must now think twice - and carefully - about treating men and women differently simply because they are men and women. Thus, Justice Ginsburg's opinion may end up being far more powerful than the result in this isolated case.
123
Agree. I find it offensive when one assumes that I, as a woman, support equality only when it purportedly favors women.
3
We need another supreme court justice just like Ginsburg.
13
I'm a little surprised that all it takes is for the parent of either gender to have lived in the US for only one year or for only five years to become an US citizen. Shouldn't the parent have to be herself or himself an US citizen to confer citizenship rights on the child? It seems way too easy to just live illegally in the US for one year or for five years, then--poof!--all of your children automatically gain US citizenship! That is too easy a standard that will encourage illegal immigration and people having US anchor babies. I think the standard should require that the parent himself or herself be an US citizen before the child gains citizenship rights.
8
Of course citizenship can't be transmitted by a non-citizen. The question is -- what about a citizen who has never actually lived in the US? Can *their* children become automatic citizens? Imagine a US citizen moves to France and has a child in France. That child can become a US citizen without ever setting foot in the US. But can that child transmit that citizenship to *their* children? The law says not unless the citizen parent has actually lived in the US for some period of their life -- but that amount of time is different depending on whether the parent is the mother or father.
2
Sheena, you misread the problem. At least one parent must be a citizen. In addition, there is a residency require for the parent that is a citizen. The problem was that this residency requirement was different if the parent that was a citizen was the father or the mother.
Got it?
Got it?
You completely missed the point. Only a US citizen can confer citizenship on his/her children...the issue was about US citizens who have a child while living abroad, and the rule had been different for US citizen mothers versus US citizen fathers.
1
Greenhouse says repeatedly that "the price was high." To who? To those children of unwed mothers who hoped to take advantage of the biased favorable treatment their cases got under law, certainly. But to who else? The law, the Court, democracy, the country in general all seem well served. I'm a supporter of immigration and of citizenship rights, and I am entirely untroubled. Every ruling has people who benefit and people who do not, that is why we call them judgments, something is in dispute. Harm is a consequence that needs to be considered, but it can never be controlling else law becomes absurd.
38
To whom?
4
You can handicap a Kentucky Derby winer to the point it cannot beat a lame plow mule. Go for it.
This article approaches the issue as if US citizenship is clearly better than Dominican citizenship. Under current circumstances that seems to me to be "stunningly anachronistic."
10
Plaintiff Morales-Santana is the one who sought U.S. citizenship, so he obviously thought remaining here was preferable to retiring to a country he hasn't see in 41 years. This case only impacts those individuals, like Morales-Santana, who wish to live in the U.S. and have citizenship status. It has no impact on anyone who thinks it is better not to be a U.S. citizen.
Can this ruling not be boiled down to this essence: It is for Congress, not the Court, to expand the scope of who is a citizen.
2
It's for Congress to decide, yes. But it's for the Court to decide if any laws the Congress passes unconstitutionally exclude people from the protection of the laws, whether they're citizens or not, and whether their rights generally have been violated.
12
Of course. That ruling was made. And then the Court must decide whether to expand or contract the unconstitutional law so it complies with equal protection. In the area of voting, the Court decided it would contract the law, because only Congress should expand who may be a citizen.
3
Hmmm....I wonder if the current political climate in regard to immigration and crime had something to do with her punting to Congress. Perhaps she didn't want to be called out if and when immigrants who, but for her decision, would not have been granted a visa then went on to commit serious crimes. Or perhaps Roberts did not want to be associated with a decision that could have had that consequence.
As a progressive I admire Justice Ginsburg, but she is also a fallible human being.
Her failure to retire when Obama could have named a worthy successor now puts the nation at risk: One more Trump judge and all may be lost.
I also criticized Senator Kennedy when he got sick. Not retiring when he could have practicably named his successor opened the door to GOP mischief in Mass., and perversely affected health care legislation.
It's not enough to have only good intentions. Sometimes ego has to be aside for the good of the nation.
Her failure to retire when Obama could have named a worthy successor now puts the nation at risk: One more Trump judge and all may be lost.
I also criticized Senator Kennedy when he got sick. Not retiring when he could have practicably named his successor opened the door to GOP mischief in Mass., and perversely affected health care legislation.
It's not enough to have only good intentions. Sometimes ego has to be aside for the good of the nation.
15
David Henry said: "[Ginsberg's] failure to retire when Obama could have named a worthy successor now puts the nation at risk: One more Trump judge and all may be lost."
Oh please. And what exactly happened with the last Supreme Court opening during the Obama administration? Oh right. The Senate illegally refused to hold hearings on his nominee, and that seat got filled by Trump. Had RBG resigned any time after the Senate flipped to Republicans, that would have meant two seats filled by Trump.
Also, RBG should stay on the Court as long as she feels her mind is sharp.
Oh please. And what exactly happened with the last Supreme Court opening during the Obama administration? Oh right. The Senate illegally refused to hold hearings on his nominee, and that seat got filled by Trump. Had RBG resigned any time after the Senate flipped to Republicans, that would have meant two seats filled by Trump.
Also, RBG should stay on the Court as long as she feels her mind is sharp.
11
You mean a worthy successor like Merrick Garland, who could have been easily confirmed? Oops.
2
She should have left after Obama was reelected, when there could have been no excuse to deny him.
You miss the point, besides being churlish.
You miss the point, besides being churlish.
1
It is a fair decision and does take in the long game. By eliminating the distinction of the gender of the parent, this ruling takes into account the acceptance of contemporary marriage and may even point to the idea that not being married is not a special status.
I also have to wonder how much Justice Ginsburg's Jewish heritage comes into play. In Judaism's more traditional groups, only the mother can pass along the natural jewishness of a child while the males get to conduct all the ceremonial rituals, political positions and have all the legal marital power. This extra layer of inequality must have certainly motivated RBG to change the status quo.
I also have to wonder how much Justice Ginsburg's Jewish heritage comes into play. In Judaism's more traditional groups, only the mother can pass along the natural jewishness of a child while the males get to conduct all the ceremonial rituals, political positions and have all the legal marital power. This extra layer of inequality must have certainly motivated RBG to change the status quo.
8
I drew that out, Unclebugs.
I made a scale of "Justice".
On one side of the scale I wrote: "female genetics".
On the other side I wrote: "Everything else".
From the ether of antiquity there was a cry of joy from the Patriarchs: "Yes! That's right! That's right!"
Thanks for your distinctions.
Well said.
I made a scale of "Justice".
On one side of the scale I wrote: "female genetics".
On the other side I wrote: "Everything else".
From the ether of antiquity there was a cry of joy from the Patriarchs: "Yes! That's right! That's right!"
Thanks for your distinctions.
Well said.
2
RBG is correct. There are actually 2 equal protection issues- The first is the nominal one- the treatment of unwed fathers vs unwed mothers regarding citizenship of their child. The second issue is the one that is more critical- the equality between treatment of married parents vs unmarried and was the impact considered by COngress at the time of enacment. WIth married parents the same length of residency applies to both parents equally.
15
I've always had great admiration for Justice Ginsburg even though I disagree with many of her more liberal interpretations of our constitution. The fact that she and Justice Scalia were good friends on the Court speaks volumes of her unassailable character as a person, apart from her judicial philosophy. Ironically, so called "liberals" were all but begging for her to resign during Obama's term so that the seat could be replaced by a democrat president. That is naked age discrimination and I commend Justice Ginsburg for not succumbing to the pressure. The Court has been her life and although she has slowed down a tad, she is still sharp as a tack. I wish her a long life and the right to retire whenever she feels it is the right time.
17
Including, I assume supporting her if she decides to hang until 2020 in hopes that a Democrat will replace Trump? If we're lucky, the senate will turn Democrat next year, and they can refuse to allow any Trump nominee even to have a hearing, as was of course done to Obama's nominee.
4
I agree with you. With age comes wisdom needed on the court. I do think a few Senators could be put out to pasture. Some of them never had any wisdom and some are just senile now.
Why isn't the explanation for adopting the longer position persuasive? It seems anomalous in the first place that unwed mothers would have a shorter residency requirement for passing on citizenship than would married parents.
13
Max--If you are an American citizen, any children born to you are also American, regardless of your marital status. Let's get rid of the $$500,000 nefarious sale of green cards, and stop letting foreigners come to this country to get American citizenship for their unborn children.
2
"Formal equality was achieved, to be sure, but it was equality with a price..."
We might say, when has equality ever been achieved, but at a price?
In this case, given that the "price" involves only potential benefits for an arbitrary class of prospective citizens--and that the achievement is Court enshrinement of a just and honorable principle--I reckon Justice Ginsburg has earned her title.
We might say, when has equality ever been achieved, but at a price?
In this case, given that the "price" involves only potential benefits for an arbitrary class of prospective citizens--and that the achievement is Court enshrinement of a just and honorable principle--I reckon Justice Ginsburg has earned her title.
31
I love to read Linda Greenhouse, but to be honest, this was not a hard case. The statute was a throwback to an earlier time, and based upon Supreme Court precedent, such an obvious inequality between men and women could not stand.
10
It is not about whether the case itself is "hard" -- it's about whether you can get at least four other members of the Court to agree.
5
Di you miss the part where the Justices deadlocked 4-4 on this very issue just a year ago. Do not take for granted Supreme Court precedent when the court has a majority formally committed to the roll back of such precedents.
2
I don't understand why Linda Greenhouse keeps talking about the rights of unmarried parents. The law that I can find (8 USC 1401) doesn't seem to distinguish between married and unmarried. When my wife (who is not a US citizen) and I had a child in Europe, I had to demonstrate at the US embassy that I passed the 5 year test. Does anybody know?
BTW, of course the whole politics of this are changing so fast. I know more and more people who do not want their kids to have US citizenship, and indeed I am wondering why we went to the trouble of getting US citizenship for our child. Indeed we had to lie about her citizenship (just listing the other citizenship) to get a bank account.
BTW, of course the whole politics of this are changing so fast. I know more and more people who do not want their kids to have US citizenship, and indeed I am wondering why we went to the trouble of getting US citizenship for our child. Indeed we had to lie about her citizenship (just listing the other citizenship) to get a bank account.
6
The article seems to say that married parents must have lived in the US for a time period of five years in order to transmit citizenship to their foreign-born children. By establishing the same five-year period for unmarried parents, isn't equal protection guaranteed? Why should unmarried mothers have a shorter time requirement than either unmarried men, or married men and women? Ginsburg's decision establishes a five-year period for all parents, which seems to eliminate the status of the parents as the deciding factor and rely on the residency period, instead.
14
If both parents are married and both citizens the child's citizenship is automatic. That did not change. It's only where one parent is a citizen and one is not and the child is born outside the US
Linda,
This piece offered an enlightening view into the SCOTUS and JRG. Her persuasive abilities come from a solid foundation of a completely fair and honest interpretation of the law. With this integrity comes the ability to argue, compromise and write decisions that do not allow counter arguments to be any less honest. It easily exposes any lack of integrity in regard to any counter argument. My respect for her service to the constitution and our citizenry has risen considerably. She makes me proud to be an American and blessed to live in a country that was served so well by it's founders in its design as a Democracy ruled by law.
This piece offered an enlightening view into the SCOTUS and JRG. Her persuasive abilities come from a solid foundation of a completely fair and honest interpretation of the law. With this integrity comes the ability to argue, compromise and write decisions that do not allow counter arguments to be any less honest. It easily exposes any lack of integrity in regard to any counter argument. My respect for her service to the constitution and our citizenry has risen considerably. She makes me proud to be an American and blessed to live in a country that was served so well by it's founders in its design as a Democracy ruled by law.
45
Regardless of "the way many people still order their lives", major biological and social differences remain between men and women. Procreation may be a fleeting act between 2 consenting people, but the 9-month follow-through, at least physically, rests on the female, which is partly why I'm guessing the original law was enacted. It is not all just anachronistic.
5
Biological differences should not lead to legal differences. In most cases (if not this one, before this SCOTUS decision) it's the person with female biology that gets the short end of the stick.
1
"Overbroad generalizations," "stereotyped view," "stunningly anachronistic"-- about men; from Justice Ginsburg. You getting this NYTimes writers and columnists on gender from someone you respect?
Time to examine assumptions, including in recent columns that if a man is bullied in the workplace by a higher ranking man (former FBI Director Comey pressured to do the wrong thing by the President) that women in your reporting often complain of, it is not so much evidence of "Now you know what we go through," but actually of something else improper, more general and less gender-specific. Don't let the personal and social experience determine the evidence. It may be something else that needs to be addressed.
Similarly, before you determine (always with certainty) that a woman being interrupted is further evidence of gender bias, how about thinking to actually ask men if that happens to them too. If so, then again it is actually evidence of something else.
You could at least bring up the specter of reverse discrimination. If you don't, how will we know if fear of it is widespread, whether it actually exists, and the really hard one that maybe we have to tolerate it for the sake of larger social fairness. If so, when does it go too far and how do we minimize the collateral damage?
Let's make the sacrifice of those men who died protecting women in that Portland train mean something by questioning what appears "obvious" and using that to tackle larger, more difficult issues.
Time to examine assumptions, including in recent columns that if a man is bullied in the workplace by a higher ranking man (former FBI Director Comey pressured to do the wrong thing by the President) that women in your reporting often complain of, it is not so much evidence of "Now you know what we go through," but actually of something else improper, more general and less gender-specific. Don't let the personal and social experience determine the evidence. It may be something else that needs to be addressed.
Similarly, before you determine (always with certainty) that a woman being interrupted is further evidence of gender bias, how about thinking to actually ask men if that happens to them too. If so, then again it is actually evidence of something else.
You could at least bring up the specter of reverse discrimination. If you don't, how will we know if fear of it is widespread, whether it actually exists, and the really hard one that maybe we have to tolerate it for the sake of larger social fairness. If so, when does it go too far and how do we minimize the collateral damage?
Let's make the sacrifice of those men who died protecting women in that Portland train mean something by questioning what appears "obvious" and using that to tackle larger, more difficult issues.
5
I'm all for equality. And I agree that a man can be intimidated by a man higher up the chain of command. Same goes for a woman superior. But, it is a fact that men dominate conversation and debate. There have been studies. It is fact. Try observing these interactions. You will find that there are a few women who dominate conversation, but they are the exception rather than the rule.
11
Plus, the workplace benefits and assists men far more than women -- the history of patriarchy and gender discrimination is a long one.
Trying to ignore that history is presenting run amok!
Trying to ignore that history is presenting run amok!
5
Someone (male or female) is born in the U.S. to alien parents and then leaves the U.S. at age 5, never to return. They have a kid in whatever country they grew up in and live in. That kid grows up in that other country, doesn't speak a word of English or know anything about the U.S. but decides as an adult that he/she wants to live in the U.S. and claims to be a natural born U.S. citizen because his parent was born here and lived here until age five. There's something wrong with that!
8
Martin: There is absolutely nothing wrong with that, in my opinion. Where is the problem?
You can't social engineer your way around the simple rule the US has had forever, and on which SCOTUS has already made a determination: if you are born here you are a US citizen, and the rights and privileges of US citizens without exception apply to you. Therefore, if Congress decides to grant, as a privilege of a citizen, citizenship to any child of a US citizen parent, that child will be a US citizen whether or not he or she knows anything about baseball and apple pie, and even if he or she speaks only Swahili. Congress can always change that, but I doubt it will.
Because let's say that child was born and outside the US for a day ... that presumably would be ok, anything else would seem grossly unfair. Problem is, where or more importantly how do you draw the line without getting embroiled in all kinds of inconsistencies, prejudices and unfairness.
The US is one of few countries that base citizenship on birth, not exclusively but as a “safe harbor”, and it is a simple rule that springs from the concept of equality. It is an American concept, and we are keeping it.
Second, on the other hand I am not sure that child you describe would be considered a “natural born citizen” (say for the purposes of the Presidency) rather than a naturalized citizen or just citizen. Probably not, but debates continue.
You can't social engineer your way around the simple rule the US has had forever, and on which SCOTUS has already made a determination: if you are born here you are a US citizen, and the rights and privileges of US citizens without exception apply to you. Therefore, if Congress decides to grant, as a privilege of a citizen, citizenship to any child of a US citizen parent, that child will be a US citizen whether or not he or she knows anything about baseball and apple pie, and even if he or she speaks only Swahili. Congress can always change that, but I doubt it will.
Because let's say that child was born and outside the US for a day ... that presumably would be ok, anything else would seem grossly unfair. Problem is, where or more importantly how do you draw the line without getting embroiled in all kinds of inconsistencies, prejudices and unfairness.
The US is one of few countries that base citizenship on birth, not exclusively but as a “safe harbor”, and it is a simple rule that springs from the concept of equality. It is an American concept, and we are keeping it.
Second, on the other hand I am not sure that child you describe would be considered a “natural born citizen” (say for the purposes of the Presidency) rather than a naturalized citizen or just citizen. Probably not, but debates continue.
4
Martin said: "Someone (male or female) is born in the U.S. to alien parents and then leaves the U.S. at age 5, never to return. They have a kid in whatever country they grew up in and live in."
You are misconstruing/misinterpreting the facts of the case. The issue in this case is whether a child who is born outside the U.S. and who has one vs. two U.S. CITIZEN parents has U.S. citizenship and when.
You are misconstruing/misinterpreting the facts of the case. The issue in this case is whether a child who is born outside the U.S. and who has one vs. two U.S. CITIZEN parents has U.S. citizenship and when.
4
Perhaps, but RBG and the Court's position is that it is Congress' call, not theirs. Their purview is whether men and women can be treated differently on this score and they said no. Then they were left to decide if that meant striking down the part where men had a higher standard or women a lower and they said that legal consistency and a reasonable view of Congressional intent meant striking the lower standard.
I'd say they were right on all three counts.
I'd say they were right on all three counts.
3
Thanks for bringing this to our attention.
6
What about legal rules based on the way most children are or behave? Are they not constraining of individuals, too?
Justice Ginsburg is precisely right. If anything, in her hand-off to Congress she makes it even more obvious that the Immigration and Nationality Act, chock full of patchwork fixes that require flowcharts to understand and apply, needs to be rewritten in its entirety. The need for comprehensive immigration reform, though agreed to in principle by both parties, has become a political football, or hot potato. Essentially it is a non-priority issue seen more as a time-wasting liability than not during our now-constant election cycles that demand quick-hit popular "now" issues to garner votes. Ginsburg took what she could reasonably get when she could get it to accomplish a significant purpose. Well played.
36
When you know that Ginsburg and Scalia were good friends (love the picture of them on an elephant) you understand what a complex, intelligent, surprising and wonderful justice the former is (and it makes me give pause before condemning the latter, too). We need more such (independent, complex, intelligent....) minds on the bench.
96
Yes Tom, and we will get those minds you describe, as soon as RBG vacates her seat, with a couple of others to follow. Problem?
1
It is definitely time for Ginsburg to retire. Soon, I hope.
7
Why? This was an wise decision with a majority that agreed with her. She deserves our respect. Some Americans have become so contemptuous of high intellect.
4
Why, when she is clearly doing such good work such as this ruling?
3
Yes, when we have the next democratic president!
The 4 republicans agreed with her, not on principle, of course, but because it furthers their anti-inmigration agenda. Transparent.
1
Why should citizenship be inheritable, like a gene?
If it should be inheritable, then it should follow the laws of genetics: USA DNA from 1 parent produces an offspring with 50% USA DNA, not 100%.
If it should be inheritable, then it should follow the laws of genetics: USA DNA from 1 parent produces an offspring with 50% USA DNA, not 100%.
1
That would disadvantage every Non Native American who has settled here. It should be made retroactive to the earliest settlements. Exempting yourself is not appropriate.
1
Why should citizenship be heritable, like a gene?
Because the Constitution. Amend it, and you are all set.
Oh, and there is a precedent for that 50% citizen thing. Only at that time, it was 3/5, not half. cf the 13th Amendment.
Because the Constitution. Amend it, and you are all set.
Oh, and there is a precedent for that 50% citizen thing. Only at that time, it was 3/5, not half. cf the 13th Amendment.
3
We who have witnessed Supreme Court Justice Ruth Bader Ginsburg in her wonderful work and quest for gender and all kinds of equality in the 1970s, 80s, 90s and up to today, when she is in her splendid 90s, still love her to bits! Her sweet face and jabot and robes should be on America's $20 bill someday!
78
Please! The Notorious RBG is "only" 84! May her Supreme Court tenure endure until she is, in fact, well into in her 90s.
politicsbyeccehomo.wordpress.com
politicsbyeccehomo.wordpress.com
2
In wondering what Judge Ginsberg was thinking it occurred to me that treating men and women the same under the law, even if it means adjusting the law down for one side, is a true step towards equality. If women demand special treatment they will continue to be viewed unequal. And as regards maternity and abortion the same applies. If we treated all female medical issues like all male medical issues you wouldn't have the crazy fight in the abortion circus. I'm for same laws for everyone.
64
Cool. Next child we have, I will ask my husband to get pregnant.
2
Except men can't get pregnant biologically. And that is the root of the circus.
2
RE: "... If we treated all female medical issues like all male medical issues you wouldn't have the crazy fight...
A few years ago the Republican legislature & spineless Democrat Gov. Jay Nixon set women back in Missouri when they created a special class exempting nursing mothers from jury duty (a judge cited for contempt a nursing woman who had refused to serve). I was aghast when a GOP state senator from St. Joseph--a physician, no less--opined, "Would you like to have a nursing mother on your jury?"(implying a nursing woman's biology could negatively impact the course of justice). As a woman who worked right up to the day of delivery, and nursed two children for fifteen months each while returning to work/attending conferences away from home/pumping & freezing/etc. in the 1980s (without all the fancy stuff today's moms have), I thought the woman should have been prosecuted--I wish some man would challenge this exemption under equal protection...too many people look to evade their civic responsibility, and this one was certainly absurd--wonder what RBG would have made of it..
A few years ago the Republican legislature & spineless Democrat Gov. Jay Nixon set women back in Missouri when they created a special class exempting nursing mothers from jury duty (a judge cited for contempt a nursing woman who had refused to serve). I was aghast when a GOP state senator from St. Joseph--a physician, no less--opined, "Would you like to have a nursing mother on your jury?"(implying a nursing woman's biology could negatively impact the course of justice). As a woman who worked right up to the day of delivery, and nursed two children for fifteen months each while returning to work/attending conferences away from home/pumping & freezing/etc. in the 1980s (without all the fancy stuff today's moms have), I thought the woman should have been prosecuted--I wish some man would challenge this exemption under equal protection...too many people look to evade their civic responsibility, and this one was certainly absurd--wonder what RBG would have made of it..
Justice Ginsburg was following what Justice Gorsuch said: "Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels."
Let us hope this trend of following the law (including the Constitution) rather than preferred outcomes continues on the Supreme Court - as well as all courts in this country.
Let us hope this trend of following the law (including the Constitution) rather than preferred outcomes continues on the Supreme Court - as well as all courts in this country.
2
Frankly, RBG is a heroine to me. As a female, 1st LT, Active Duty Army Nurse Corps officer in 1971, I was married to a civilian. As such, my husband was NOT allowed to go anywhere on FT Huachuca except to the Officer's Club (fat chance, as he was prior Marine enlisted). He could not use the PX, the Commissary, nor was he eligible for dependent medical care....unless he dropped dead under the flag pole & then they'd resuscitate him. I, as a married woman service member was paid as a single service member, to include no "dependant" status for my husband, no married pay in separate rations or in housing, nor could we live on post. This was for the duration of my AD, '71-'73. My fellow officers, married to either enlisted or fellow officers were paid as married in all aspects. RBG, I believe, as an ACLU attorney at the time, filed a brief defending the position of the either Nurse or Physical Therapist officer, married to a civilian, that filed the complaint that went forward to the Supreme Court. That Supreme Court decision put an end to sexist discrimination for females married to male civilians in the military. RBG has been at this ugly process of breaking down the sexist barriers in our society, to include those in the military. She is & will always remain my hero!
264
I was commissioned in the USAF in 1981, and learned about that case when I took an administrative law class while getting my masters in 1983. I was, and remain, very appreciative of the women who sued to get equal treatment so that when I joined that battle had already been won.
5
Thank you for your service, particularly in the face of hardship and discrimination from the military you both served. You and your husband are part of the the very best of this nation.
4
I'm sure you'll agree--as do every female serving in the military to whom I have spoken about it--that our young women must be required to register for the draft along with our young men. If men don't register, they stand to lose many federal and state benefits, along with, of course, being at risk for mandatory military service if there is ever another draft.
Why should all this fall only on males?
Why should all this fall only on males?
1
On a separate matter but involving her, Justice Ginsberg should recuse herself from the "Travel Ban" case.
After all, she made very disparaging comments about Trump prior to the election and her intent would not be pure.
After all, she made very disparaging comments about Trump prior to the election and her intent would not be pure.
6
Take that line of logic in the other direction - President Trump disparages virtually everything decent. Perhaps he should recuse himself from Office?
I think Justice Ginsburg has enough intelligence and maturity to separate her opinions about someone from the legality of the argument they make. I'm sure she had similar issues with Justice Scalia.
I think Justice Ginsburg has enough intelligence and maturity to separate her opinions about someone from the legality of the argument they make. I'm sure she had similar issues with Justice Scalia.
4
RUTH BADER GINSBERG'S Writing in the decision punts to Congress--this most dysfunctional, incompetent branch of US government at this writing--was due to her observance of judicial restraint. Lamentably, it seems to much to ask that this Congress, unwilling to abandon its roll of holding a stranglehold over the people's business for the past 8 years, is about to embark on further strangulation in its delusional cockamamie mishegoss to replace Obamacare, reform the tax code and fund infrastructure rebuilding and repair. None of the GOP's harebrained "plans" will come to fruition, the most salient reason being the party's ongoing civil war. With so many red states in the area that was once Dixie, it's hardly surprising that they aspire to a resurrection of the Civil War. Gender equality for men and women? Not on their watch, I fear.
4
The Notorious RBG has always played the long game. IN the guise
of restraint, she lays down markers that eventually become
equality for men and women
You don't have to be tall to be a giant.
of restraint, she lays down markers that eventually become
equality for men and women
You don't have to be tall to be a giant.
118
Excellent analysis!!
A single male can, with little investment, father many more children in a given block of time than can a woman. This fact of sexual dimorphism means that there will be a huge uptick in the number if foreign born children claiming American citizenship through paternal inheritance. Expect that American male ex-pstriots will become socially more attractive even as they show less commitment to their paramours. Also expect the Right to eliminate citizenship Rights for the children of unwed parents when one of them, male or female, is not a citizen. An interesting side-effect will be that a child born of an IVF surrogate outside if the US will not be a citizen.
3
Why would there be any uptick - the rule for unmarried men was not changed.
Someday I hope that Ginsburg is recognized as the great supreme court judge she is.
45
Perhaps someday fathers will be afforded similar equal treatment during a divorce.
1
Sorry Justice Ginsburg but it must be said.
Your heavy handed and very authoritarian manner in regards to gay marriage
and transgender rights helped put the disaster that is Trump in the White House.
Your obsession with political correctness alienated many moderates and
independents moving the Democrats away from the center and
more towards the radical fringes. Donald Trump as President is a direct
result of the erroneous SCOTUS decision on gay marriage.
You angered and alienated many good and upstanding people by calling
to question cherished and long standing mores held dear by many and
having those people wrongly labeled as haters and bigots. Trump in the White House is simply an answer to that push an attempt to restore the balance.
Admit it. You are a big reason Donald Trump is President. Are you proud of your work?
Your heavy handed and very authoritarian manner in regards to gay marriage
and transgender rights helped put the disaster that is Trump in the White House.
Your obsession with political correctness alienated many moderates and
independents moving the Democrats away from the center and
more towards the radical fringes. Donald Trump as President is a direct
result of the erroneous SCOTUS decision on gay marriage.
You angered and alienated many good and upstanding people by calling
to question cherished and long standing mores held dear by many and
having those people wrongly labeled as haters and bigots. Trump in the White House is simply an answer to that push an attempt to restore the balance.
Admit it. You are a big reason Donald Trump is President. Are you proud of your work?
A judicially restrained liberal jurist is spot on. The courts should not hold the bag for Congress; negotiated legislation has legitimacy where judicial fiats do not. Thank you RBG.
11
Citizenship and even membership in clans or membership in Judaism and Islam is matrilineal for a simple reason .... Birth from a woman is the only clear demarcation of descent. Ginsburg may this this is a decision based on equality but it is even more fundamental than that.
1
Interesting point about the historical constraints on determining decent lines. Of course, in the age of genetic technology, the determination of lineal decent is easily and objectively determined. Removing the anachronistic and now irrelevant effect of those historical constraints needs to be addressed judicially where it imposes or supports unequal treatment under the law. Ginsberg sees that clearly and argues the fundamentals on the issue. Justice Ginsberg certainly does look to the long-game, as we should wish of the remainder of the court. Intellectual myopia in a SCJ would be a lamentable quality.
23
This is an extremely misinformed post. The "rules" if you will, on who is or isn't a Jew or Muslim based on the tribal status of their mother was one way for unsophisticated desert dwellers to deal with the reality of rape and enslavement of conquered peoples.
When the vanquished had men and boys slaughtered or worse, matrilineal descent ensured that the offspring of surviving women were not marginalized within the larger group, even if they "looked different."
By the advent of Christianity, where baptism into the faith welcomed all comers, this birth distinction became irrelevant.
Fast forward 2000 years and now we have DNA testing, should that become necessary to establish parentage. No need to disfavor one gender.
I think a deeper question remains: the future of birthright citizenship for those children of non-citizens fortunate enough to be born on American soil. We are apparently alone or nearly so among nations in this Constitutional provision.
When the vanquished had men and boys slaughtered or worse, matrilineal descent ensured that the offspring of surviving women were not marginalized within the larger group, even if they "looked different."
By the advent of Christianity, where baptism into the faith welcomed all comers, this birth distinction became irrelevant.
Fast forward 2000 years and now we have DNA testing, should that become necessary to establish parentage. No need to disfavor one gender.
I think a deeper question remains: the future of birthright citizenship for those children of non-citizens fortunate enough to be born on American soil. We are apparently alone or nearly so among nations in this Constitutional provision.
2
How the citizenship of children born outside of the country should be decided may be a very complicated issue in general. The Supreme Court has just rendered a decision on a specific law that addresses that question in a specific way and I think this case was pretty clearly decided based on equality.
1
I would like to see open borders, but since that's not in the cards, I'm for a wall so that Mexican families stop dying in the desert.
Compromise? What a novel thought. Perhaps the Congress and many warring "tribes" in the Country should take note.
3
Look at the group portrait. Who's talking?
2
I was a single father for seven years. I applaud this decision. The concept and the word for it, equal, has a simple meaning.
23
Justice Roberts is an adoptive father which likely influenced him to join Justice Ginsburg in her opinion. Justice Ginsburg is correct in upholding equal protection for mothers and fathers in this case. Her observation that many family laws are outdated and based on assumptions from the 1940s and 50s is correct.
My husband and I are lawyers and adoptive parents. Our ties to our children are not based in biology. Nonetheless, both my husband and I deserve equal protection and recognition of our family and our rights and responsibilities as parents. Justice Roberts knows this firsthand and ruled accordingly.
My husband and I are lawyers and adoptive parents. Our ties to our children are not based in biology. Nonetheless, both my husband and I deserve equal protection and recognition of our family and our rights and responsibilities as parents. Justice Roberts knows this firsthand and ruled accordingly.
28
The author should not ascribe the "defied expectations" to the Court itself. These expectations may arise more from superficiality in the media's thinking than from the Court's decisions being "ideology-riven". After all, to the extent that they are driven by ideology, the Justices are not carrying the job that the Constitution gives them.
Perhaps the ideology is more in the eye of the journalistic observer, as it is on virtually every other issue that they cover. History shows us that Justices frequently surprise us by rising above their presumed ideologies; journalists seldom do.
Perhaps the ideology is more in the eye of the journalistic observer, as it is on virtually every other issue that they cover. History shows us that Justices frequently surprise us by rising above their presumed ideologies; journalists seldom do.
5
A continuing decline in jurisprudence. Leaving anything important up to congress is in itself meaningless.
6
I have been thinking about citizenship a lot lately. Many of us who are born here, of citizen-parents, tend to take citizenship for granted. In fact, it should be a highly valued, important characteristic, and I am not sure how many of us look at it that way.
This opinion makes sense to me - it eliminates a discriminatory clause in a law where Congress actually set a standard, then wrote in an unbalanced exception.
I have a friend who was a common pleas judge here in Pennsylvania for 20 years. He has said that one of the most enjoyable acts he had as a judge was presiding over granting of citizenship hearings. People from all over the world proudly swore to uphold the Constitution and conduct themselves as Americans and gleefully celebrated their acceptance into their new country. Naturalized citizens have a very different view of the differences and advantages that America offers compared to much of the world - would that those of us born here brought their enthusiasm, excitement, commitment and passion to our citizenship.
This case brings uniformity to the citizenship process. If the People think this is unfair, let them, through their elected representatives, rule on it. That's kind of what the Constitution says, isn't it? Perhaps if all of us - the representatives and represented alike - took this more seriously, things would go a little better.
"Our citizenship in the United States is our national character."
Thomas Paine
This opinion makes sense to me - it eliminates a discriminatory clause in a law where Congress actually set a standard, then wrote in an unbalanced exception.
I have a friend who was a common pleas judge here in Pennsylvania for 20 years. He has said that one of the most enjoyable acts he had as a judge was presiding over granting of citizenship hearings. People from all over the world proudly swore to uphold the Constitution and conduct themselves as Americans and gleefully celebrated their acceptance into their new country. Naturalized citizens have a very different view of the differences and advantages that America offers compared to much of the world - would that those of us born here brought their enthusiasm, excitement, commitment and passion to our citizenship.
This case brings uniformity to the citizenship process. If the People think this is unfair, let them, through their elected representatives, rule on it. That's kind of what the Constitution says, isn't it? Perhaps if all of us - the representatives and represented alike - took this more seriously, things would go a little better.
"Our citizenship in the United States is our national character."
Thomas Paine
42
This decision leaves more questions than answers. Does this ultimately mean that the Congress will have to change the immigration laws? If it were an American man, who was the unmarried parent, would he not be able to have the same rights as the unmarried American woman?
Incredibly unclear to me, but then I am not a lawyer, but I am an admirer of Justice Ginsburg. I have to believe that this is a wise decision.
Incredibly unclear to me, but then I am not a lawyer, but I am an admirer of Justice Ginsburg. I have to believe that this is a wise decision.
5
Sounds like it's now 5 years for everyone, married or unmarried. I agree that wasn't totally clear in the article.
1
“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.”
1) All "generalizations" are "overbroad", there is always an exception, but laws are made on generalizations, not on the exceptions. All laws have a "constraining impact" on marginal cases, but exceptions are decided at the discretion of the agency. In this case, no immigration official saw fit to make an exception for Mr. Morales-Santana, and given the decision by the Supreme Court, Immigration was correct.
2) That a "generalization" is "overbroad" doesn't mean that it is not true. Unwed fathers and unwed mothers are not alike in the biological costs to them for "bearing" children: a) a mother must bear the child for 9 months in her body, b) there is no limit to how many children a father can produce in any 9 month period. There are also social and economic costs to pregnancy.
3) Neither GInsburg nor Congress cite any data to back up their respective view on the matter, so to that extent, both are making legal decisions based on their personal perception of what is "stereotype" or "anachronistic."
1) All "generalizations" are "overbroad", there is always an exception, but laws are made on generalizations, not on the exceptions. All laws have a "constraining impact" on marginal cases, but exceptions are decided at the discretion of the agency. In this case, no immigration official saw fit to make an exception for Mr. Morales-Santana, and given the decision by the Supreme Court, Immigration was correct.
2) That a "generalization" is "overbroad" doesn't mean that it is not true. Unwed fathers and unwed mothers are not alike in the biological costs to them for "bearing" children: a) a mother must bear the child for 9 months in her body, b) there is no limit to how many children a father can produce in any 9 month period. There are also social and economic costs to pregnancy.
3) Neither GInsburg nor Congress cite any data to back up their respective view on the matter, so to that extent, both are making legal decisions based on their personal perception of what is "stereotype" or "anachronistic."
7
I think was an entirely sounds and well-thought-out decision. It actually irks me that Linda has argued that this is not in some way fair. If it takes one, five, or ten years to be granted transferable citizenship, so be it, and since zero does not seem like the correct answer, five seems much more "all in" on America than one year does to me. Whatever threshold was set, it shouldn't depend on a parents' gender and marital status, but "reasonably contributing to America" doesn't seem unreasonable.
20
I didn't read that Ms. Greenhouse found Justice Ginsberg's decision unfair. The word used was "fascinating". Are you sure you read the article?
4
Your wonderful article fills me we questions!
If those unmarried parents get married within five years of the birth of the child would that guarantee transmission of citizenship?
Would a child claiming American citizenship be required to produce DNA proof that she or he is of the American parent? Is such proof required when the parents are married?
If those unmarried parents get married within five years of the birth of the child would that guarantee transmission of citizenship?
Would a child claiming American citizenship be required to produce DNA proof that she or he is of the American parent? Is such proof required when the parents are married?
11
How long or when the birth parents were married is inconsequential as long as they prove marriage at the time of thechild's birth.. If the birth parents are not married at the time of the child's birth, the parent claiming US citizenship needs to prove he or she had a presence in the US for a specified period of time (and not immediately preceding the birth). That would apply to unmarried couples even where both are US citizens. The ruling only established the same physical presence time frame requirement for unmarried parents as it exists for married parents where only one of which is a US citizen.
Quite aside from the merits of the Supreme Court's reasoning here, in procedural terms this decision created a mess. The court decided to apply the five-year residency requirement ``prospectively". However, it is not clear from the text of the decision (or from the briefs by the government that the court's decision cites) what exactly ``prospectively" means here. One possibility is that they meant all cases of children born after June 12, 2017. The other possibility is that they meant all adjudications (by the State Department or by the DHS) occurring after June 12, 2017. If they meant the latter then the situation becomes very muddy. Typically the law in question is used by people living abroad to obtain a U.S. passport. But a U.S. passport only serves as proof of U.S. citizenship while the passport is valid (usually for 10 years). Suppose someone born in 1990 obtained a U.S. passport based on this law, entered the U.S. and is living here now. And suppose that person has lost their passport or simply let it expire, and now wants to apply for a new one. What happens if this person obtained their first passport based on their mother's citizenship, but the mother did not satisfy the 5-year residency requirement now imposed by the Court? Would their passport application be denied? What if that person now applies for a Certificate of Citizenship with the USCIS? Is that person now an illegal alien?
2
I imagine they mean the latter, but don't follow your logic on why a person whose citizenship has already been processed and granted would somehow become stripped of it by trying to renew their passport. That would be a retrospective application of the ruling.
7
You can't strip someone's existing valid citizenship based on a new SCOTUS interpretation of the law.
6
The problem is that when the State Department considers a passport application, they require a valid proof of U.S. citizenship. If someone's old passport is lost, stolen or damaged, that passport or its photocopy cannot be used as proof of U.S. citizenship for a new passport application. In such a situation the applicant needs to provide other evidence showing that that person is a U.S. citizen, essentially establishing the citizenship claim from scratch. See https://travel.state.gov/content/passports/en/passports/information/citi...
For someone who was born abroad out-of-wedlock to a U.S. citizen mother, that presumably (after the Supreme Court ruling) involves providing a proof that the mother satisfied a 5-year residency requirement (rather than just 1 year).
For someone who was born abroad out-of-wedlock to a U.S. citizen mother, that presumably (after the Supreme Court ruling) involves providing a proof that the mother satisfied a 5-year residency requirement (rather than just 1 year).
1
I am an admirer of Justice Ruth Bader Ginsburg, and in the Morales-Santana case she clearly was right about the violation of the constitutional guarantee of equal protection in the disparate treatment of men and women in the citizenship laws.
The price paid, however, for securing the vote of Chief Justice John G. Roberts, Jr. to reach a majority was too high. More importantly, the price was paid by Mr. Morales-Santana, not by Justice Ginsburg.
The price paid, however, for securing the vote of Chief Justice John G. Roberts, Jr. to reach a majority was too high. More importantly, the price was paid by Mr. Morales-Santana, not by Justice Ginsburg.
8
The "five year" compromise did not impact this plaintiff. His father lived in the US for nine years (the law at the time had a ten year requirement).
1
Ironically, it would appear that Justice Ginsberg agrees with the Trump administration that immigration law, as long as it offers equal protection across genders, should stand and be enforced unless and until it is repealed or amended by congress.
11
Equal protection applies to other factors besides gender...including race, nationality, religion...it also prohibits favoring one religion over another (Establishment Clause).
Please read the Constitution...there is little irony in Justice Ginsburg's decision.
Please read the Constitution...there is little irony in Justice Ginsburg's decision.
28
Remember the broken clock adage about still being right twice a day and far be it for me to EVER defend a Trump action!
But unanimous SCOTUS decisions are the most powerful, because they remove the bias we see so often in 5-4 decisions.
I fail to see the Constitutional problem with this decision, and as tough as it is for Mr. Morales-Santana, he IS a convicted criminal and his claim to US citizenship was as tenuous as it gets. I'd much rather see the SCOTUS spending its gravitas on protecting children brought here illegally who have gone on to be the kind of productive people we WANT as citizens.
Tangentially, on the broken clock: Yesterday, Trump called for legislation that would prevent immigrants from receiving welfare benefits for 5 years, without realizing that Bill Clinton signed EXACTLY that same legislation into existing law in 1996, but our angry, ignorant, narcissistic President thinks it's his own brilliant idea.
Back on topic, while I admire many of RBG's decisions and stands, if she's forced to leave the Court due to age, ill-health or, well, death while Trump or Pence is President, I will never forgive her. She should have retired immediately after Obama was re-elected to prevent a Neil Gorsuch from holding her seat, or a Merrick Garland from being denied a hearing.
But unanimous SCOTUS decisions are the most powerful, because they remove the bias we see so often in 5-4 decisions.
I fail to see the Constitutional problem with this decision, and as tough as it is for Mr. Morales-Santana, he IS a convicted criminal and his claim to US citizenship was as tenuous as it gets. I'd much rather see the SCOTUS spending its gravitas on protecting children brought here illegally who have gone on to be the kind of productive people we WANT as citizens.
Tangentially, on the broken clock: Yesterday, Trump called for legislation that would prevent immigrants from receiving welfare benefits for 5 years, without realizing that Bill Clinton signed EXACTLY that same legislation into existing law in 1996, but our angry, ignorant, narcissistic President thinks it's his own brilliant idea.
Back on topic, while I admire many of RBG's decisions and stands, if she's forced to leave the Court due to age, ill-health or, well, death while Trump or Pence is President, I will never forgive her. She should have retired immediately after Obama was re-elected to prevent a Neil Gorsuch from holding her seat, or a Merrick Garland from being denied a hearing.
2
Eh, what are you talking about? This has to do with inheritance of citizenship rights, not immigration. The rule applies both to parents who were native-born and naturalized. If a child born from uninterrupted 1620 Pilgrim stock permanently moves to France at the age of four, her kid won't be a US citizen.
5
is it too much to ask for constitutional protection against discrimination based on marital status? i'm all for granting citizenship to this plaintiff and others affected, but the rules should be the same for wed and unwed parents.
114
The economic consequences are quite different and create perverse incentives, this issue is more complicated than you admit.
4
This decision actually does just that. The original rule was actually more lenient towards unwed mothers.
"She explained that the general rule set by Congress for conveying citizenship to foreign-born children when the parents are married subjects citizen fathers and mothers to the longer residency requirement. The shorter requirement for unwed citizen mothers is itself an exception to the general rule."
"She explained that the general rule set by Congress for conveying citizenship to foreign-born children when the parents are married subjects citizen fathers and mothers to the longer residency requirement. The shorter requirement for unwed citizen mothers is itself an exception to the general rule."
17
yes, that's why this is a very rare instance in which I find myself agreeing with what is, on the surface, a relatively conservative interpretation.
1
When any branch of our government ignores principles in order to achieve a political outcome, we all lose in the long run. RGB is right that "the way that men and women are" is not just a harmful social stereotype but a disastrous distinction when carried over to the law. Making sure our citizenship rules are constitutional and fair is the Supreme Court's job. Making them more generous is the job of Congress, and if that is what America wants, it appears we need a new Congress.
151
I don't know why this issue was not addressed, but what justification is there for treating the claim of citizenship of a child based on the marital status of the parents? If the legal principle at the heart of this case is equal protection, shouldn't the claims of married and unmarried persons be treated the same?
210
In effect, this ruling does exactly that.
7
The equal protection clause guarantees that laws be applied equally to the sexes. But there is no such constitutional protection on the basis of marriage status.
3
Married and unmarried are not seen as equal in this society - different strictures on behavior, attitudes towards unmarried moms versus absent dads, and even the definition of marriage serve as examples. Marriage is a peculiarly religious status but this country isn't progressive enough to accept that the benefits and responsibilities conferred by it would be better-served via non-religious regulations or laws.
1
I wonder what this will do to the numbers of American mothers' newborns born abroad who end up stateless. The foreign countries in which we live have their own rules of citizenship and it seems inevitable that more newborns will fall between the cracks than before.
Meanwhile ultra-wealthy foreigners, couples in which neither parent is an American, can fly to the U.S. to give birth in American hospitals, ensuring their children acquire citizenship by place of birth.
Not mentioned in this article, though, is the status of the rule that allows U.S. grandparents who meet the residence requirements to apply for U.S. citizenship for their foreign-born grandchild if the grandchild's parents are ineligible to do so. I wonder if this rule is still in force.
Meanwhile ultra-wealthy foreigners, couples in which neither parent is an American, can fly to the U.S. to give birth in American hospitals, ensuring their children acquire citizenship by place of birth.
Not mentioned in this article, though, is the status of the rule that allows U.S. grandparents who meet the residence requirements to apply for U.S. citizenship for their foreign-born grandchild if the grandchild's parents are ineligible to do so. I wonder if this rule is still in force.
39
Children born to an American parent living abroad are U.S. citizens. The child should be registered with the U.S. embassy or consulate, and should spend 5 years in the U.S. before the age of 25. At least, this was the law in the 1960s. I do not know whether it has been revised.
5
Maybe the time has come for Americans living abroad permanently should, if they do not come back for a substantial length of time, lose their American citizenship. Often Expats leave because they do not like something about this country. So it really shouldn't bother them overmuch. Most who just work overseas come back to visit relatives on a fairly regular basis so if it is in their passports that they do so, say a week every 2 years, then there should be no problem.
Leave for good, you shouldn't be bothered by losing your citizenship here, you should have gotten it where you are living.
Leave for good, you shouldn't be bothered by losing your citizenship here, you should have gotten it where you are living.
1
It was in place when my son was born in London in 1987.
It seems clear that Roberts, Alito and Thomas would prefer for as few people as possible to be able to claim US citizenship according to this law, and have voted accordingly. Nothing to do with the doctrine.
28
Ms. Greenhouse writes, "Was this explanation persuasive? Not to me, actually, but then I wasn’t Justice Ginsburg’s primary audience."
Justice Ginsburg's reasoning (that, faced with curing an unconstitutional provision in the law, Congress would have dropped the exception for unmarried mothers rather than relax the general rule) persuaded me. Since I have not read the case and have only the author's account to go by, secretly I think it must have persuaded Ms. Greenhouse, too.
Another fine essay by Linda Greenhouse, and more evidence, if we need any, that being a "nation of laws" is not the glorious thing people seem to take it to be—time after time, courts rule on technicalities that are within the language of the law but which clearly do not lead to just, fair, or beneficial outcomes.
Justice Ginsburg's reasoning (that, faced with curing an unconstitutional provision in the law, Congress would have dropped the exception for unmarried mothers rather than relax the general rule) persuaded me. Since I have not read the case and have only the author's account to go by, secretly I think it must have persuaded Ms. Greenhouse, too.
Another fine essay by Linda Greenhouse, and more evidence, if we need any, that being a "nation of laws" is not the glorious thing people seem to take it to be—time after time, courts rule on technicalities that are within the language of the law but which clearly do not lead to just, fair, or beneficial outcomes.
166
Perhaps this case will be a wake-up call for parents who have children while living and traveling abroad. The decision to have a child abroad puts them in a tricky position of not really belonging. One can't assume that a child born abroad to an American parent is automatically a citizen. As demonstrated here, ignorance of the law won't spare you from the consequences of the law. Citizenship is prescious but often taken for granted.
33
Actually what the case was about was not American citizens having children abroad, it was whether people who are not married and not citizens but immigrants who live here for a specific amount of time. And, the case also rested on whether the parent was a father or a mother.
4
wolf201:
No, it is about citizen parents. If it were not, then all the children of deported aliens (who had lived here for 5 years) who are born back in the other countries would be US citizens.
No, it is about citizen parents. If it were not, then all the children of deported aliens (who had lived here for 5 years) who are born back in the other countries would be US citizens.
1
Women "lost" in this decision. How is that good in any way? There are notable differences between the sexes. So long as women aren't denied a benefit, what's the issue. Young women are charged less by auto insurers due to their claims history as a group but shouldn't be charged more for health insurance on the same basis. Women aren't drafted. Adjustments have been made to primary education when it has been shown that girls are at a disadvantage to boys. I don't get celebrating this.
23
Women achieved parity in this decision. Isn't that something to be applauded?
6
Quite a few years ago I happened to be in a group of mostly (or entirely) of women and one of them (proudly a Feminist) complained that it was unfair that women had to pay more for annuities compared to men.
Having worked at a life insurance company at one point, I could see what she was getting at. If you use 'gender' as one of your ratings criteria, women on average live longer than men, so ergo, you would want to charge them more. So I foolishly assumed what she was talking about was the elimination of 'gender' as a ratings criteria.
But ... that meant that men who pay higher life insurance premiums (since they as a group are more likely to die sooner) ought to then not pay higher life insurance premiums. So I mentioned that as a consequence of what she was talking about.
Nope. "Oh that's completely different," she responded, which meant the only thing she was interested in was situations where the woman was disadvantaged.
That has informed my view of Feminism ever since.
Having worked at a life insurance company at one point, I could see what she was getting at. If you use 'gender' as one of your ratings criteria, women on average live longer than men, so ergo, you would want to charge them more. So I foolishly assumed what she was talking about was the elimination of 'gender' as a ratings criteria.
But ... that meant that men who pay higher life insurance premiums (since they as a group are more likely to die sooner) ought to then not pay higher life insurance premiums. So I mentioned that as a consequence of what she was talking about.
Nope. "Oh that's completely different," she responded, which meant the only thing she was interested in was situations where the woman was disadvantaged.
That has informed my view of Feminism ever since.
4
The court wasn't asked to rule on health insurance or the draft or education.. The difference between the sexes where parenthood is concerned is cultural. The woman gives birth but the child is the product of two people. (And in cases of surrogacy even giving birth might not confer the status of parent.)
If men get into more accidents than women, then auto insurance is based on data, not on cultural differences between male and female roles. It is statistically more likely that a 20-year old man will cause a car accident than a 20-year old women. But it's entirely possible that if men sued the auto insurance industry on that basis, they would win! It would be interesting to see RBG rule on that case.
If men get into more accidents than women, then auto insurance is based on data, not on cultural differences between male and female roles. It is statistically more likely that a 20-year old man will cause a car accident than a 20-year old women. But it's entirely possible that if men sued the auto insurance industry on that basis, they would win! It would be interesting to see RBG rule on that case.
18
I wonder how many children this would apply to. An American citizen woman who has lived in the US for less than five years of her life but more than one, who has a child with a non-citizen, just can't be that common. It pretty much describes people gifted with second passports, who have never actually been here at all.
38
This would also apply to people who apply for and are granted citizenship, so while the numbers may not be huge the problem will still arise enough that this holding will affect many lives.
This case has me wondering about several cascading question s: is it easier for the children of US citizens to apply for and receive citizenship. Is there any kind of preference? Would the US deport the child of a US mother or father that failed to acquire citizenship because of this geographical loophole? To the last question it is highly doubtful in my opinion, even under the current administration.
This case has me wondering about several cascading question s: is it easier for the children of US citizens to apply for and receive citizenship. Is there any kind of preference? Would the US deport the child of a US mother or father that failed to acquire citizenship because of this geographical loophole? To the last question it is highly doubtful in my opinion, even under the current administration.
This applies primarily to children of first generation American emigrants to other countries. While citizenship automatically accrues to their children, the only way the grandchildren can get citizenship is if the children comply with the current law requiring one year US residence if at least one the grandchildren's parents is married. If unmarried, the rule changes.
Pretty rare, but common enough that a case made it all the way to the SCOTUS.
Pretty rare, but common enough that a case made it all the way to the SCOTUS.
4
Or serve in the military, in the diplomatic corp,....
Pinning gender equality to the equal protection clause has always been the long game for Ginsburg and other amazing legal minds of our times. Many had hoped that Roe v Wade would be decided on that basis, rather than the "penumbra of privacy" basis. I recently studied the papers of Harriet Pilpel (one of RBG's colleagues at the ACLU) housed at Smith College and learned that at the time of Roe, they also realized that the equal protection clause would eventually become the basis for homosexual (their words at the time) marriage.
I imagine RBG knew that it would be a long game, long ago. Any judicial compromise that solidifies the equal protection clause, and its impact on gender bias is just another smart move, by one of our smartest jurists. Live long notorious RBG!