I'm a little late getting to this, but as a decently informed Supreme Court enthusiast, I needed to throw out my two cents to discuss what I think is the legacy of Ruth Bader Ginsburg.
It is only lately that I have come to appreciate the jurisprudence of Ginsburg. In fact, I can point to a specific Supreme Court decision that made me more appreciative of her work and thought. That decision was the 2017 decision in Sessions v. Morales-Santana. This was an extremely technical case regarding sex equality. Ruth Bader Ginsburg wrote the opinion, and it was beautiful for being able to navigate the principles of equality on one hand and the cold hard force of legal reasoning on the other.
The law in question was rather obscure. At least, I never even thought about a law like this prior to reading about this case. If you are a U.S. citizen who has lived in the mainland United States all your life, you've never had to think about this law because it doesn't apply to you. But if you are an unmarried U.S. citizen who has a child outside of marriage and outside the United States, then you probably want to know if your child is a U.S. citizen or not. And that's exactly the law in question. What criteria must an unmarried U.S. citizen meet in order to qualify for conferring citizenship upon his or her offspring? And here's where the issue of equality comes in.
The law used to have two different standards for conferring citizenship. The law allowed a female U.S. citizen having a child outside of marriage and outside the United States to confer citizenship upon her offspring if she could show that she had lived in the United Stated for at least one full year. On the other hand, in order for a male U.S. citizen to confer citizenship upon his offspring born outside of marriage and outside the United States, he needed to show he had lived in the United Stated for at least ten years if the child was born prior to November 14, 1986 and five years if the child was born born after this date. (OK, I'm simplifying here. There's more to these laws than this, but this isn't a legal blog, so I ain't doing more.)
Can you say double standard? I knew you could. Yes, this law clearly and unmistakably treated men and women with two grossly different standards. And this isn't some old relic. This is a law that was still in practice and determining people's citizenship status as late as 2017.
Luis Ramon Morales-Santana was a non-citizen under this law. He was born in the Dominican Republic in 1962 to a Dominican mother and a Puerto Rican (read: U.S. citizen) father. His father, Jose Morales, had failed to meet the necessary residency requirements needed to impart citizenship upon his son by, get this, 20 days. Had Jose Morales lived in Puerto Rico for a mere 20 more days, he would have conferred citizenship upon Luis Ramon.
Luis Ramon Morales-Santana made some bad life decisions and ended up in jail. As a non-citizen, he was subject to deportation. He argued, however, that the law preventing him from being a U.S. citizen violated the equal rights amendment. If his father had been a woman, then his father would have met the necessary requirements for conferring citizenship. But for his father's biological sex, Luis Ramon would be a U.S. citizen. This sexist law needed to changed, Mr. Morales-Santana needed to be granted citizenship, and deportation needed to be taken off the table.
Ginsburg wrote the opinion, joined by five other justices. In it, she called out this law for what it was, a violation of equal protections under the law. But here's where the case gets interesting and where Ginsburg performed a completely unexpected move. Morales-Santana had assumed that if the law were found unconstitutional, he would received citizenship. But this didn't happen. Correcting the law to remove the unequal protection could be done one of two ways. The law for men could be made more lenient (in which case Morales-Santana would be a U.S. citizen) or the law for women could be made more strict. The Supreme Court did the latter, and with good reason.
If the court had changed the residency requirements for unmarried male citizens to conform to the less stringent requirements that applied to unmarried female citizens, this would have the unfortunate consequence of making it easier for unmarried individuals to confer citizenship than if they were married. Such an outcome would be completely unacceptable for the court to permit, as this would violate congress's intentions while at the same time creating its own unjustified inequality which itself would likely not withstand scrutiny. Faced with these facts, there was only one course of action. The standard for men was to remain the same, and the exception that was created for women was deemed unconstitutional.
This ruling was a pyrrhic victory for progressives. They won a battle for equal rights, but it ended up costing them in more stringent citizenship requirements. One progressive website (thinkprogress.org) ran an article entitled "The Supreme Court just made our ugly, messed up immigration law even uglier." This was followed by the subtitle, "Sometimes equality cuts against justice." Mr. Morales-Santana himself was, at the end of the day, never granted citizenship. I have not followed up on his deportation status.
Yes, equality does cut both ways. And in this case, it's difficult to see what other course of action there was. This opinion written by Ginsburg seems to me to be spot on. "Equality under the law" is great. But whereas many people hearing this phrase focus on equality, it is important to note that the law part can't just go away. When Solomon went to split the baby, sure, that was an exercise in equality, but it was also an exercise in the force of his legal powers. This opinion written by Ginsburg, in my humble opinion, strikes the perfect balance between equality and law. It removed the inequality, but it didn't reach a pie-in-the-sky resolution. It did the hard work of navigating the legal landscape and reaching a sound resolution, even if not ideal.
Learning about this court case greatly increased my appreciation for Ruth Bader Ginsburg's jurisprudence. When I read her opinions now, I am much more open to seeing her legal logic and reasoning. Ginsburg is often painted as an extreme leftist, as a justice who allowed her ideology to dictate her decisions. But I do not think this is a fair portrayal. She fought for equality. In fact that was her primary fight. But she allowed the double edge sword of equality to cut both ways. That is a quality that many saw in her, which I myself have only recently come around to seeing.
I will continue following the court and the legacy left by Ruth Bader Ginsburg.
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