On Monday, the Supreme Court struck down a federal immigration law that made it easier for children of U.S. citizen mothers to obtain citizenship than children of U.S. citizen fathers.

Per the Immigration and Nationality Act of 1952, the citizenship of children born outside of the United States to one U.S. citizen parent and one parent who is a citizen of another nation is decided differently depending on whether the U.S. citizen parent is the child’s mother or father. A child of a U.S. citizen mother would automatically become a U.S. citizen as long as the mother had lived in the U.S. for one year. However, a child of a U.S. citizen father would only automatically become a U.S. citizen if the father had lived in the U.S. for five years before the child was born, and if at least two of those years had occurred after the father had turned 14.

In an 8-0 decision in Sessions v. Morales-Santana, the Court held that such a “gender line” was “incompatible” with the Equal Protections Clause of the Fifth Amendment of the Constitution and was therefore unconstitutional. Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in November 2016 when the court heard the case.

Luis Ramón Morales-Santana has lived in the U.S. since he was 13. When Morales-Santana was born, the requirement was that fathers needed to have lived in the U.S. for 10 years before the child was born, five of which had to be after the age of 14–as opposed to the current requirement of five years in the U.S., including two after age 14.

His father, José Morales, moved to the Dominican Republic just 20 days before turning 19 and, therefore, did not meet the earlier requirement of living in the U.S. for at least five years after turning 14. Without his father satisfying that requirement, Morales-Santana was not considered a U.S. citizen. The U.S. government attempted to remove Morales-Santana from the country in 2000 based on several criminal convictions.

Morales-Santana asserted that the U.S. government’s refusal to grant him citizenship violated the Equal Protections Clause because it hinged on gender based classification of his parentage. Had Morales-Santana’s mother been a U.S. citizen and lived in the country for one year, he would have already been considered a citizen.

Justice Ruth Bader Ginsburg wrote the opinion of the court in which she explained that laws granting or denying benefits based on the sex of a parent are subject to “heightened scrutiny.”

Before 1940, Ginsburg said, standards for citizenship of children born abroad were rooted in two gender based assumptions. “In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child,” Ginsburg wrote, describing those assumptions. Children of married parents derived their citizenship status from their fathers, while children of unwed parents derived their citizenship status from their mothers.

The Nationality Act of 1940 eliminated fathers’ sole control over children’s citizenship, instead allowing either married U.S. citizen mothers or fathers to pass citizenship on to their child. The Act also codified unwed mothers’ ability to pass citizenship on to their child, but did not do so for unwed fathers since mothers were regarded as children’s sole guardians in cases in which the parents were not married.

The U.S. government argued that when a child is born to unwed parents, the mother is the only legally recognized parent at the child’s birth; the father is acknowledged after the fact. Ginsburg explained that, according to the U.S. government’s argument, the lengthier residency requirement for U.S. citizen fathers is warranted due to the “‘competing national influence’ of the alien mother.”

However, Ginsburg wrote that the assumption is based on “the long-held view that unwed fathers care little about, indeed are strangers to, their children.” Such a characterization, she says, “no longer passes equal protection inspection.”

The Court held that the gender-based distinction violated the equal protection clause, but did not decide whether the requirement for U.S. citizen mothers should be applied equally to fathers.

Ginsburg said Congress had made an exception for unwed mothers, but not for unwed fathers. Therefore, it is up to Congress, not the Court, to decide whether the standard for unwed mothers should be extended to unwed fathers.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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The U.S. Court of Appeals for the 10th Circuit recently ruled that states cannot deprive a person of the fundamental right to marry simply because he or she chooses a partner of the same sex. This marked the first time that a federal appeals court has weighed in on the matter, and the early thinking is that the Supreme Court may take this case. Finally, marriage equality in all 50 states, right?

This is all good, yeah, woohoo! (Sidenote: my gaydar sucks big time. Straight guys are gay, gay guys are straight. Hell, lesbians are twinks and vice versa, but I thought I had developed a fail-safe. To determine if a guy is family, I simply look down at his ring finger. Last week, I caught myself doing this. I looked down at this dude’s finger, which indeed was adorned with a ring. Done — he’s straight. Then I remembered the whole marriage equality thing: he’s gay! But, as he opened his clearly European mouth and uttered something about the weather, his Belfast burr turning “air” to “ire,” I remembered the Euro-metrosexual-monkey-wrench! Gay or straight, damnit?! Alas, I resigned myself to utter cluelessness.)

Courtesy of Quick Meme

In all seriousness, it’s really awesome that the lines between gay relationships and straight relationships are increasingly blurry. That’s not the endgame, though. Even if the Supreme Court takes this Utah case and sides with the 10th Circuit about the fundamental right to marry (big assumptions with the Roberts Court), it won’t affect other types of discrimination against the LGBTQ community. Marriage equality is only the opening salvo in a still-uphill battle for full equality. We ought not lose sight of that.

Don’t get me wrong, ever the Machiavelli in me says sure, get to marriage equality by any means necessary. Those means, under the reasoning of the 10th Circuit, would be the Fourteenth Amendment’s Due Process Clause. That is, if the Supreme Court rules favorably in this case, and on due process grounds, it would mean that no person, gay or straight, can be deprived of the right to marry. But due process deals only with “fundamental rights.” What about laws that discriminate against gay men in blood donation? What about workplace discrimination?

Courtesy of Matt Buck via Flickr

A decision on due process grounds would not touch these other types of discrimination, but a ruling under the Fourteenth Amendment’s Equal Protection Clause would. That would deal with all manner of discrimination against the LGBTQ community, including marriage equality.

Brief Equal Protection primer: Under the Fourteenth Amendment’s Equal Protection Clause, laws that single out a specific group for differential treatment or disproportionately impact that group, if challenged, are subject to judicial review. If the law discriminates on the basis of a suspect classification, such as race, it must satisfy the most exacting degree of review — strict scrutiny. Thanks to second-wave feminism, discrimination on the basis of sex/gender is subject to intermediate scrutiny. As it stands now, discrimination on the basis of sexual orientation is subject to the lowest, most deferential level of judicial review — rational basis review.

Blah, blah, blah, I’m losing you so let me get to the point. Until the Supreme Court rules on equal protection grounds rather than due process that sexual orientation-based discrimination merits a higher level of judicial scrutiny, discriminatory laws will continue to receive minimal judicial scrutiny.

I’m glad that marriage equality is sweeping across the country, and that the Supreme Court may finally have occasion to legalize it nationwide. Indeed, by no means would this be a pyrrhic victory. However, it would only nominally affect other issues of discrimination against the LGBTQ community, issues that are arguably more important than marriage equality.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [Victoria Pickering via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.

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Gather ‘round, Constant Reader (if I may be so presumptuous with my very first blog post). Let’s wax nostalgic for a tick.

There we go. That should set the mood.

It’s 1987. Hollywood’s been treating the world to some gems: Adventures in Babysitting; The Lost Boys; Nightmare on Elm Street III. On the politics front, the sun is setting on Reagan’s presidency and the Cold War. Most importantly, though, the Washington football team (which shall remain nameless) has made it to Super Bowl XXII. It’s halftime and they’ve just hung 35 second-quarter points on the Broncos — a Super Bowl record. By game’s end, the Washington football team’s quarterback, Doug Williams, would be become the first black quarterback to win the Super Bowl.

Despite Williams’ achievement, the idea persisted that black quarterbacks aren’t as smart as their white counterparts. Years later, this refrain played out to major controversy when Rush Limbaugh called Donovan McNabb, quarterback of the Philadelphia Eagles, overrated, explaining that the liberal, mainstream media with its PC bromides just wanted to see a black quarterback succeed.

Fast forward to this year. And thank you, by the way, for allowing me a momentary walk down memory lane. It does indeed warm my very gay heart cockles to talk football (usually 49ers). But, with that jaunt I have a point: the NFL appeared to have progressed by leaps and bounds when the St. Louis Rams drafted Michael Sam earlier this year, the first openly gay football player in the NFL.

Courtesy of PopWrapped

To boot, the cameras then panned to him planting an Al-and-Tipper-level kiss on his boyfriend.

Yeah, that disaster

Even more, Michael Sam is black and in an interracial relationship. Boom! Check, check, and check. Who’da thunk the NFL could be so forward? So au currant?

I tried to place the Michael Sam moment into the larger context of recent progress generally. In President Obama’s purportedly transcendent America, same-sex marriage has rapidly swept across the country. Just earlier this year, for instance, Judge John E. Jones III of Pennsylvania’s Middle District struck down Pennsylvania’s same-sex marriage ban, finding it in violation of the Constitution’s due process and equal protection clauses. Pennsylvania thus became the nineteenth state to effectively legalize same-sex marriage. Last year, the Supreme Court issued favorable rulings in the California Proposition 8 and DOMA cases.

Then I remembered that I’ve only ever lived really in the most liberal of hotbeds, Los Angeles and New York City, and I slowed my roll. In fact, I think we all ought to slow our rolls. While the LGBTQ community continues to march toward full equality, other minority communities are seeing their gains erode. Just look at the Supreme Court’s recent ruling upholding Michigan’s constitutional amendment banning affirmative action in admissions to the state’s public universities. (As an aside though, yay for Justice Sotomayor’s blistering, two-snaps-and-an-around-the-world smack down dissent!)

The LGBTQ community is rightfully and deservedly celebrating its recent electoral and legal victories. As a member of the community I have tempered my elation, though, because I feel deeply that the fortunes of “discrete and insular minorities” are intertwined. No doubt, the Michael Sam moment was indeed big; a watershed moment totally deserving of celebration. But let’s not get too ahead of ourselves. The NFL still makes its bones playing to the hyper-heteronormative crowd. Just sit through those Go-Daddy commercials during the Super Bowl. We aren’t yet living in the post-racial, post-gender, post-et-cetera world promised with the election of Barack Obama. Bigotry accumulated over time tends to pervade everything from society’s institutions to even its more subtle, discursive acts of culture. I’ll more fully celebrate the Michael-Sam-type moments when progress begins to happen on all fronts, not just one.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [VJnet via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.

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