ILLEGITIMATE CITIZENSHIP RULES.

• Author: Saucedo, Leticia

ABSTRACT

In 2017, the Supreme Court decided Sessions v. Morales-Santana, a challenge to 8 U.S.C. [section] 1409, the law governing the conferral of U.S. citizenship to children born abroad to parents who are U.S. citizens. As the Court noted in a forceful opinion, [section] 1409 imposed different and more onerous physical presence requirements on unwed fathers than unwed mothers, making it difficult for nonmarital fathers to transmit their U.S. citizenship to their foreign-born children. Such distinctions, the Court concluded, were rooted in archaic gender stereotypes and thus incompatible with equal protection principles.

Although Morales-Santana corrected the gender discrimination inherent in [section] 1409, it said nothing of the statute's other constitutionally infirm provisions. Although it has drawn little attention, [section] 1409 also discriminates on the basis of illegitimacy, which like gender, is a quasi-suspect classification for purposes of equal protection law. Specifically, [section] 1409 requires nonmarital children to prove that they have been legitimated by their unwed U.S. citizen fathers to establish their derivative citizenship claim. By contrast, foreign-born children in wedlock need not show that they have been legitimated; by virtue of their parents ' marriage, they are legally recognized as "legitimate" children. These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents to prove what should be regarded as their pre-existing citizenship. Crucially, in general, laws such as these that distinguish on the basis of a parents ' marital status constitute illegitimacy discrimination. Yet, the Court in Morales-Santana neglected to acknowledge this unequal treatment of nonmarital children, focusing instead on how [section] 1409 discriminated on the basis of gender and effectively allowing this unconstitutional practice to continue.

This Article calls attention to the prevalence of illegitimacy classifications in immigration law by identifying what we term "illegitimate citizenship rules. " In highlighting the pervasiveness of this form of discrimination, this Article makes three contributions. As a descriptive matter, these rules demonstrate the unfinished project within equal protection law of eviscerating discrimination against nonmarital children, which includes the treatment of such children in immigration law. As a doctrinal matter, the Article argues that the Supreme Court's narrow focus on the sex equality dimension of [section] 1409 rendered invisible the discrimination against nonmarital children. Finally, as the Article makes clear, by discriminating against nonmarital children, illegitimate citizenship rules promote and perpetuate the "traditional" family and thus discriminate against those families that do not comport with the heterosexual marital family model. The Article concludes by recommending that Congress seize the opportunity created by Morales-Santana to address and eventually eradicate the ongoing discrimination against nonmarital children who are born abroad.

INTRODUCTION I. THE RIGHTS OF NONMARITAL CHILDREN UNDER THE U.S. CONSTITUTION A. Equal Protection Rights of Nonmarital Children B. Removing Legal Distinctions Between Nonmarital and Legitimated Children C. Illegitimacy as a Quasi-Suspect Classification II. NONMARITAL CHILDREN AND LEGITIMATION RULES IN CITIZENSHIP LAW A. Proving Citizenship for Nonmarital Children in the Immigration and Nationality Act B. Pre-1952: Enforcing Legitimation Rules in the Face of Congressional Silence C. Equal Protection Challenges to Legitimation Rules and Congressional Advocacy: 1952-1986 D. The 1986 Amendments to the Legitimation Rules in Immigration Law and the 1988 Technical Corrections III. DERIVATIVE CITIZENSHIP CASES: SEX EQUALITY OVER ILLEGITIMACY DISCRIMINATION A. Miller v. Albright B. Nguyen v. INS C. Sessions v. Morales-Santana IV. HOW ILLEGITIMATE CITIZENSHIP RULES DISCRIMINATE AGAINST NONMARITAL CHILDREN AND PERPETUATE TRADITIONAL FAMILY NORMS A. The Historical Stereotypes Embedded in the Marriage Preference B. The Consequences of the Marriage Preference: How Derivative Citizenship Rules Perpetuate the Heterosexual Marriage Norm 1. The Marriage Preference and the Primary Caretaker Nonmarital Father 2. I Have Two Moms: The Heterosexual Marriage Preference, the LGBTQIA Partnership, and Artificial Insemination 3. I Have Two Dads: The Marriage Preference and Surrogacy Arrangements C. Dismantling the Marriage Preference CONCLUSION INTRODUCTION

"[S]tunningly anachronistic." (1) This is how the Supreme Court in Sessions v. Morales-Santana described a derivative citizenship law that, for more than half a century, explicitly discriminated on the basis of gender. (2) Derivative citizenship law, codified as 8 U.S.C. [section] 1409(c), imposes certain physical presence requirements that parents must satisfy in order to transmit U.S. citizenship to their children who are born abroad. (3) Married couples and unwed U.S. citizen fathers need to establish that they had ten years' physical presence in the United States prior to their child's birth. (4) Unmarried U.S. citizen mothers, however, merely had to establish one year of continuous physical presence. (5) Writing for the majority, Justice Ruth Bader Ginsburg explained that such preferential treatment violated the right of "all persons [to] 'the equal protection of the laws.'" (6) Noting that the different physical presence requirements for unwed fathers and mothers were grounded in stereotypes, (7) Justice Ginsburg wrote that the distinction "date[s] from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are." (8) Applying intermediate scrutiny, the Court ruled that the "gender line" that Congress drew is incompatible with the Constitution. (9) Unsurprisingly, commentators described Morales-Santana as a "landmark case" (10) and a "groundbreaking victory for gender equality." (11)

At the same time, many have expressed disappointment with the Court for its refusal to provide a remedy that would have conferred citizenship on the Petitioner, Luis Ramon Morales-Santana. (12) Indeed, others commented on the potential of the Morales-Santana case to have an adverse impact on unwed mothers and their children. (13)

Morales-Santana should be criticized for another reason. In examining the gender discrimination claim, the Court ignored a second distinct form of discrimination that also has lain within 8 U.S.C. [section] 1409 for more than half a century--discrimination on the basis of "illegitimacy." (14) Specifically, [section] 1409(a)(4)(A) requires foreign-born nonmarital children to prove that they have been "legitimated" by their unwed fathers before they turn eighteen years old in order for them to prevail on their citizenship claims. (15) By contrast, foreign-born children in wedlock need not show these requirements, including that they have been legitimated. By virtue of their parents' marriage, they are automatically and legally recognized as "legitimate" children. (16) These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents, specifically unwed fathers, to prove what should be regarded as their preexisting citizenship. (17) In other words, just as [section] 1409 unfavorably treated unwed fathers, it also disfavored nonmarital children. Crucially, such disparate treatment of nonmarital children--illegitimacy discrimination--is generally considered an equal protection violation. (18) Despite this differential treatment, the Supreme Court in Morales-Santana failed to acknowledge this constitutionally infirm provision. (19)

This Article calls attention to the prevalence of illegitimacy classification in immigration law by identifying what we term "illegitimate citizenship rules." In highlighting the pervasiveness of this form of discrimination, this Article makes three contributions. First, as a descriptive matter, these rules demonstrate the unfinished project within equal protection law of eviscerating discrimination against nonmarital children. Since the 1960s, the Supreme Court has generally held that laws that distinguished between nonmarital and marital children violated the Equal Protection Clause. (20) Although not all forms of marital preferences that essentially discriminate against children of unwed parents are struck down, such illegitimacy discrimination, like gender, is considered a quasi-suspect classification for purposes of equal protection analysis and is thus reviewed under heightened scrutiny. (21) Immigration law's ongoing deployment of these illegitimate citizenship rules, and the Court's uncritical examination of such laws, show that much work remains in ensuring equal treatment of children regardless of their parents' marital status.

Second, as a doctrinal matter, we analyze why the Supreme Court has elided this illegitimacy discrimination problem and argue that, ironically, the Court's focus on the sex equality dimension of [section] 1409 is to blame. Revisiting the Court's derivative citizenship cases--Miller v. Albright, (22) Nguyen v. INS, (23) and Morales-Santana (24)--we contend that the Court's emphasis on how [section] 1409 discriminated on the basis of gender rendered invisible the discrimination against nonmarital children. Finally, as this Article makes clear, by discriminating against nonmarital children, illegitimate citizenship rules promote and perpetuate the "traditional" family and thus discriminate against those families that do not comport with the heterosexual marital family model. (25)

The significant impact of these "illegitimate citizenship rules" should not go unnoticed. Millions of U.S. citizens who live abroad--to serve in the military, teach English, or work for the government and companies, among other reasons--must live by these rules. (26)...