Sessions v. Morales-Santana , 137 S. Ct. 1678 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SESSIONS, ATTORNEY GENERAL v. MORALES­
SANTANA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 15–1191. Argued November 9, 2016—Decided June 12, 2017
The Immigration and Nationality Act provides the framework for ac­
quisition of U. S. citizenship from birth by a child born abroad, when
one parent is a U. S. citizen and the other a citizen of another nation.
Applicable to married couples, the main rule in effect at the time here
relevant, 8 U.S. C. §1401(a)(7) (1958 ed.), required the U. S.-citizen
parent to have ten years’ physical presence in the United States prior
to the child’s birth, “at least five of which were after attaining” age
14. The rule is made applicable to unwed U. S.-citizen fathers by
§1409(a), but §1409(c) creates an exception for an unwed U. S.-citizen
mother, whose citizenship can be transmitted to a child born abroad
if she has lived continuously in the United States for just one year
prior to the child’s birth.
Respondent Luis Ramón Morales-Santana, who has lived in the
United States since he was 13, asserts U. S. citizenship at birth
based on the U. S. citizenship of his biological father, José Morales.
José moved to the Dominican Republic 20 days short of his 19th
birthday, therefore failing to satisfy §1401(a)(7)’s requirement of five
years’ physical presence after age 14. There, he lived with the Do­
minican woman who gave birth to Morales-Santana. José accepted
parental responsibility and included Morales-Santana in his house­
hold; he married Morales-Santana’s mother and his name was then
added to hers on Morales-Santana’s birth certificate. In 2000, the
Government sought to remove Morales-Santana based on several
criminal convictions, ranking him as alien because, at his time of
birth, his father did not satisfy the requirement of five years’ physical
presence after age 14. An immigration judge rejected Morales­
Santana’s citizenship claim and ordered his removal. Morales­
2 SESSIONS v. MORALES-SANTANA
Syllabus
Santana later moved to reopen the proceedings, asserting that the
Government’s refusal to recognize that he derived citizenship from
his U. S.-citizen father violated the Constitution’s equal protection
guarantee. The Board of Immigration Appeals denied the motion,
but the Second Circuit reversed. Relying on this Court’s post-1970
construction of the equal protection principle as it bears on gender-
based classifications, the court held unconstitutional the differential
treatment of unwed mothers and fathers. To cure this infirmity, the
Court of Appeals held that Morales-Santana derived citizenship
through his father, just as he would were his mother the U. S. citizen.
Held:
1. The gender line Congress drew is incompatible with the Fifth
Amendment’s requirement that the Government accord to all persons
“the equal protection of the laws.” Pp. 6–23.
(a) Morales-Santana satisfies the requirements for third-party
standing in seeking to vindicate his father’s right to equal protection.
José Morales’ ability to pass citizenship to his son easily satisfies the
requirement that the third party have a “ ‘close’ relationship with the
person who possesses the right.” Kowalski v. Tesmer, 543 U.S. 125,
130. And José’s death many years before the current controversy
arose is “a ‘hindrance’ to [José’s] ability to protect his own interests.”
Ibid. Pp. 6–7.
(b) Sections 1401 and 1409 date from an era when the Nation’s
lawbooks were rife with overbroad generalizations about the way
men and women are. Today, such laws receive the heightened scru­
tiny that now attends “all gender-based classifications,” J. E. B. v.
Alabama ex rel. T. B., 511 U.S. 127, 136, including laws granting or
denying benefits “on the basis of the sex of the qualifying parent,”
Califano v. Westcott, 443 U.S. 76, 84. Prescribing one rule for moth­
ers, another for fathers, §1409 is of the same genre as the classifica­
tions declared unconstitutional in Westcott; Reed v. Reed, 404 U.S.
71, 74, 76–77; Frontiero v. Richardson, 411 U.S. 677, 688–691; Wein-
berger v. Wiesenfeld, 420 U.S. 636, 648–653; and Califano v. Gold-
farb, 430 U.S. 199, 206–207. A successful defense therefore requires
an “ ‘exceedingly persuasive justification.’ ” United States v. Virginia,
518 U.S. 515, 531. Pp. 7–9.
(c) The Government must show, at least, that its gender-based
“ ‘classification serves “important governmental objectives and that
the discriminatory means employed” are “substantially related to
[achieving] those objectives.” ’ ” Virginia, 518 U.S., at 533. The clas­
sification must serve an important governmental interest today, for
“new insights and societal understandings can reveal unjustified ine­
quality . . . that once passed unnoticed and unchallenged.” Obergefell
v. Hodges, 576 U. S. ___, ___. Pp. 9–14.
Cite as: 582 U. S. ____ (2017) 3
Syllabus
(1) At the time §1409 was enacted as part of the Nationality
Act of 1940 (1940 Act), two once habitual, but now untenable, as­
sumptions pervaded the Nation’s citizenship laws and underpinned
judicial and administrative rulings: In marriage, husband is domi­
nant, wife subordinate; unwed mother is the sole guardian of a non-
marital child. In the 1940 Act, Congress codified the mother-as-sole­
guardian perception for unmarried parents. According to the stereo­
type, a residency requirement was justified for unwed citizen fathers,
who would care little about, and have scant contact with, their non-
marital children. Unwed citizen mothers needed no such prophylac­
tic, because the alien father, along with his foreign ways, was pre­
sumptively out of the picture. Pp. 9–13.
(2) For close to a half century, this Court has viewed with sus­
picion laws that rely on “overbroad generalizations about the differ­
ent talents, capacities, or preferences of males and females.” Virgin-
ia, 518 U.S., at 533. No “important [governmental] interest” is
served by laws grounded, as §1409(a) and (c) are, in the obsolescing
view that “unwed fathers [are] invariably less qualified and entitled
than mothers” to take responsibility for nonmarital children. Caban
v. Mohammed, 441 U.S. 380, 382, 394. In light of this equal protec­
tion jurisprudence, §1409(a) and (c)’s discrete duration-of-residence
requirements for mothers and fathers are anachronistic. Pp. 13–14.
(d) The Government points to Fiallo v. Bell, 430 U.S. 787; Miller
v. Albright, 523 U.S. 420; and Nguyen v. INS, 533 U.S. 53, for sup­
port. But Fiallo involved entry preferences for alien children; the
case did not present a claim of U. S. citizenship. And Miller and
Nguyen addressed a paternal-acknowledgment requirement well met
here, not the length of a parent’s prebirth residency in the United
States. Pp. 14–16.
(e) The Government’s suggested rationales for §1409(a) and (c)’s
gender-based differential do not survive heightened scrutiny. Pp. 16–
23.
(1) The Government asserts that Congress sought to ensure
that a child born abroad has a strong connection to the United States.
The statute, the Government suggests, bracketed an unwed U. S.­
citizen mother with a married couple in which both parents are U. S.
citizens because she is the only legally recognized parent at birth;
and aligned an unwed U. S.-citizen father with a married couple, one
spouse a citizen, the other, an alien, because of the competing na­
tional influence of the alien mother. This rationale conforms to the
long-held view that unwed fathers care little about their children.
And the gender-based means scarcely serve the suggested congres­
sional interest. Citizenship may be transmitted to children who have
no tie to the United States so long as their U. S.-citizen mother was
4 SESSIONS v. MORALES-SANTANA
Syllabus
continuously present in the United States for one year at any point in
her life prior to the child’s birth; but it may not be transmitted by a
U. S.-citizen father who falls a few days short of meeting §1401(a)(7)’s
longer physical-presence requirements, even if he acknowledges pa­
ternity on the day the child is born and raises the child in the United
States. Pp. 17–19.
(2) The Government also maintains that Congress wished to
reduce the risk of statelessness for the foreign-born child of a U. S.
citizen. But congressional hearings and reports offer no support for
the assertion that a statelessness concern prompted the diverse phys­
ical-presence requirements. Nor has the Government shown that the
risk of statelessness disproportionately endangered the children of
unwed U. S.-citizen mothers. Pp. 19–23.
2. Because this Court is not equipped to convert §1409(c)’s excep­
tion for unwed U. S.-citizen mothers into the main rule displacing
§§1401(a)(7) and 1409(a), it falls to Congress to select a uniform pre­
scription that neither favors nor disadvantages any person on the ba­
sis of gender. In the interim, §1401(a)(7)’s current requirement
should apply, prospectively, to children born to unwed U. S.-citizen
mothers. The legislature’s intent, as revealed by the statute at hand,
governs the choice between the two remedial alternatives: extending
favorable treatment to the excluded class or withdrawing favorable
treatment from the favored class. Ordinarily, the preferred rule is to
extend favorable treatment. Westcott, 443 U.S., at 89–90. Here,
however, extension to fathers of §1409(c)’s favorable treatment for
mothers would displace Congress’ general rule, the longer physical-
presence requirements of §§1401(a)(7) and 1409 applicable to unwed
U. S.-citizen fathers and U. S.-citizen parents, male as well as female,
married to the child’s alien parent. Congress’ “ ‘commitment to th[is]
residual policy’ ” and “ ‘the degree of potential disruption of the statu­
tory scheme that would occur by extension as opposed to abroga­
tion,’ ” Heckler v. Mathews, 465 U.S. 728, 739, n. 5, indicate that
Congress would likely have abrogated §1409(c)’s special exception,
preferring to preserve “the importance of residence in this country as
the talisman of dedicated attachment,” Rogers v. Bellei, 401 U.S.
815, 834. Pp. 23–28.
804 F.3d 520, affirmed in part, reversed in part, and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
THOMAS, J., filed an opinion concurring in the judgment in part, in
which ALITO, J., joined. GORSUCH, J., took no part in the consideration
or decision of the case.
Cite as: 582 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1191
_________________
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
PETITIONER v. LUIS RAMON MORALES-SANTANA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 12, 2017]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns a gender-based differential in the law
governing acquisition of U. S. citizenship by a child born
abroad, when one parent is a U. S. citizen, the other, a
citizen of another nation. The main rule appears in
8 U.S. C. §1401(a)(7) (1958 ed.), now §1401(g) (2012 ed.).
Applicable to married couples, §1401(a)(7) requires a
period of physical presence in the United States for the
U. S.-citizen parent. The requirement, as initially pre­
scribed, was ten years’ physical presence prior to the
child’s birth, §601(g) (1940 ed.); currently, the requirement
is five years prebirth, §1401(g) (2012 ed.). That main rule
is rendered applicable to unwed U. S.-citizen fathers by
§1409(a). Congress ordered an exception, however, for
unwed U. S.-citizen mothers. Contained in §1409(c), the
exception allows an unwed mother to transmit her citizen­
ship to a child born abroad if she has lived in the United
States for just one year prior to the child’s birth.
The respondent in this case, Luis Ramón Morales-
Santana, was born in the Dominican Republic when his
father was just 20 days short of meeting §1401(a)(7)’s
2 SESSIONS v. MORALES-SANTANA
Opinion of the Court
physical-presence requirement. Opposing removal to the
Dominican Republic, Morales-Santana asserts that the
equal protection principle implicit in the Fifth Amend­
ment1 entitles him to citizenship stature. We hold that
the gender line Congress drew is incompatible with the
requirement that the Government accord to all persons
“the equal protection of the laws.” Nevertheless, we can­
not convert §1409(c)’s exception for unwed mothers into
the main rule displacing §1401(a)(7) (covering married
couples) and §1409(a) (covering unwed fathers). We must
therefore leave it to Congress to select, going forward, a
physical-presence requirement (ten years, one year, or
some other period) uniformly applicable to all children
born abroad with one U. S.-citizen and one alien parent,
wed or unwed. In the interim, the Government must
ensure that the laws in question are administered in a
manner free from gender-based discrimination.
I
A
We first describe in greater detail the regime Congress
constructed. The general rules for acquiring U. S. citizen­
ship are found in 8 U.S. C. §1401, the first section in
Chapter 1 of Title III of the Immigration and Nationality
Act (1952 Act or INA), §301, 66 Stat. 235–236. Section
1401 sets forth the INA’s rules for determining who “shall
be nationals and citizens of the United States at birth” by
——————
1 As this case involves federal, not state, legislation, the applicable
equality guarantee is not the Fourteenth Amendment’s explicit Equal
Protection Clause, it is the guarantee implicit in the Fifth Amend­
ment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S.
636, 638, n. 2 (1975) (“[W]hile the Fifth Amendment contains no equal
protection clause, it does forbid discrimination that is so unjustifiable
as to be violative of due process. This Court’s approach to Fifth
Amendment equal protection claims has always been precisely the
same as to equal protection claims under the Fourteenth Amendment.”
(citations and internal quotation marks omitted; alteration in original)).
Cite as: 582 U. S. ____ (2017) 3
Opinion of the Court
establishing a range of residency and physical-presence
requirements calibrated primarily to the parents’ nation­
ality and the child’s place of birth. §1401(a) (1958 ed.);
§1401 (2012 ed.). The primacy of §1401 in the statutory
scheme is evident. Comprehensive in coverage, §1401
provides the general framework for the acquisition of
citizenship at birth. In particular, at the time relevant
here,2 §1401(a)(7) provided for the U. S. citizenship of
“a person born outside the geographical limits of the
United States and its outlying possessions of parents
one of whom is an alien, and the other a citizen of the
United States who, prior to the birth of such person,
was physically present in the United States or its out­
lying possessions for a period or periods totaling not
less than ten years, at least five of which were after
attaining the age of fourteen years: Provided, That
any periods of honorable service in the Armed Forces
of the United States by such citizen parent may be in­
cluded in computing the physical presence require­
ments of this paragraph.”
Congress has since reduced the duration requirement to
five years, two after age 14. §1401(g) (2012 ed.).3
Section 1409 pertains specifically to children with un­
married parents. Its first subsection, §1409(a), incorpo­
rates by reference the physical-presence requirements of
§1401, thereby allowing an acknowledged unwed citizen
parent to transmit U. S. citizenship to a foreign-born child
——————
2 Unless otherwise noted, references to 8 U.S. C. §§1401 and 1409 are
to the 1958 edition of the U. S. Code, the version in effect when re­
spondent Morales-Santana was born. Section 1409(a) and (c) have
retained their numbering; §1401(a)(7) has become §1401(g).
3 The reduction affects only children born on or after November 14,
1986. §8(r), 102 Stat. 2619; see §§12–13, 100 Stat. 3657. Because
Morales-Santana was born in 1962, his challenge is to the ten-years,
five-after-age-14 requirement applicable at the time of his birth.
4 SESSIONS v. MORALES-SANTANA
Opinion of the Court
under the same terms as a married citizen parent. Section
1409(c)—a provision applicable only to unwed U. S.-citizen
mothers—states an exception to the physical-presence
requirements of §§1401 and 1409(a). Under §1409(c)’s
exception, only one year of continuous physical presence is
required before unwed mothers may pass citizenship to
their children born abroad.
B
Respondent Luis Ramón Morales-Santana moved to the
United States at age 13, and has resided in this country
most of his life. Now facing deportation, he asserts U. S.
citizenship at birth based on the citizenship of his biologi­
cal father, José Morales, who accepted parental responsi­
bility and included Morales-Santana in his household.
José Morales was born in Guánica, Puerto Rico, on
March 19, 1900. Record 55–56. Puerto Rico was then, as
it is now, part of the United States, see Puerto Rico v.
Sanchez Valle, 579 U. S. ___, ___–___ (2016) (slip op., at 2–
4); 8 U.S. C. §1101(a)(38) (1958 ed.) (“The term United
States . . . means the continental United States, Alaska,
Hawaii, Puerto Rico, Guam, and the [U. S.] Virgin Is­
lands.” (internal quotation marks omitted)); §1101(a)(38)
(2012 ed.) (similar), and José became a U. S. citizen under
the Organic Act of Puerto Rico, ch. 145, §5, 39 Stat. 953 (a
predecessor to 8 U.S. C. §1402). After living in Puerto
Rico for nearly two decades, José left his childhood home
on February 27, 1919, 20 days short of his 19th birthday,
therefore failing to satisfy §1401(a)(7)’s requirement of five
years’ physical presence after age 14. Record 57, 66. He
did so to take up employment as a builder-mechanic for a
U. S. company in the then-U. S.-occupied Dominican
Republic. Ibid.4
——————
4 See generally B. Calder, The Impact of Intervention: The Dominican
Republic During the U. S. Occupation of 1916–1924, pp. 17, 204–205
(1984) (describing establishment of a U. S. military government in the
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Opinion of the Court
By 1959, José attested in a June 21, 1971 affidavit
presented to the U. S. Embassy in the Dominican Repub­
lic, he was living with Yrma Santana Montilla, a Domini­
can woman he would eventually marry. Id., at 57. In
1962, Yrma gave birth to their child, respondent Luis
Morales-Santana. Id., at 166–167. While the record
before us reveals little about Morales-Santana’s childhood,
the Dominican archives disclose that Yrma and José mar­
ried in 1970, and that José was then added to Morales­
Santana’s birth certificate as his father. Id., at 163–164,
167. José also related in the same affidavit that he was
then saving money “for the susten[ance] of [his] family” in
anticipation of undergoing surgery in Puerto Rico, where
members of his family still resided. Id., at 57. In 1975,
when Morales-Santana was 13, he moved to Puerto Rico,
id., at 368, and by 1976, the year his father died, he was
attending public school in the Bronx, a New York City
borough, id., at 140, 369.5
C
In 2000, the Government placed Morales-Santana in
removal proceedings based on several convictions for
offenses under New York State Penal Law, all of them
rendered on May 17, 1995. Id., at 426. Morales-Santana
ranked as an alien despite the many years he lived in the
United States, because, at the time of his birth, his father
did not satisfy the requirement of five years’ physical
presence after age 14. See supra, at 3–4, and n. 3. An
immigration judge rejected Morales-Santana’s claim to
citizenship derived from the U. S. citizenship of his father,
and ordered Morales-Santana’s removal to the Dominican
——————
Dominican Republic in 1916, and plans, beginning in late 1920, for
withdrawal).
5 There is no question that Morales-Santana himself satisfied the
five-year residence requirement that once conditioned a child’s acquisi­
tion of citizenship under §1401(a)(7). See §1401(b).
6 SESSIONS v. MORALES-SANTANA
Opinion of the Court
Republic. Record 253, 366; App. to Pet. for Cert. 45a–49a.
In 2010, Morales-Santana moved to reopen the proceed­
ings, asserting that the Government’s refusal to recognize
that he derived citizenship from his U. S.-citizen father
violated the Constitution’s equal protection guarantee.
See Record 27, 45. The Board of Immigration Appeals
(BIA) denied the motion. App. to Pet. for Cert. 8a, 42a–
44a.
The United States Court of Appeals for the Second
Circuit reversed the BIA’s decision. 804 F.3d 520, 524
(2015). Relying on this Court’s post-1970 construction of
the equal protection principle as it bears on gender-based
classifications, the court held unconstitutional the differ­
ential treatment of unwed mothers and fathers. Id., at
527–535. To cure the constitutional flaw, the court further
held that Morales-Santana derived citizenship through his
father, just as he would were his mother the U. S. citizen.
Id., at 535–538. In so ruling, the Second Circuit declined
to follow the conflicting decision of the Ninth Circuit in
United States v. Flores-Villar, 536 F.3d 990 (2008), see
804 F.3d, at 530, 535, n. 17. We granted certiorari
in Flores-Villar, but ultimately affirmed by an equally
divided Court. Flores-Villar v. United States, 564 U.S.
210 (2011) ( per curiam). Taking up Morales-Santana’s
request for review, 579 U. S. ___ (2016), we consider the
matter anew.
II
Because §1409 treats sons and daughters alike, Morales-
Santana does not suffer discrimination on the basis of his
gender. He complains, instead, of gender-based discrimi­
nation against his father, who was unwed at the time of
Morales-Santana’s birth and was not accorded the right an
unwed U. S.-citizen mother would have to transmit citi­
zenship to her child. Although the Government does not
contend otherwise, we briefly explain why Morales­
Cite as: 582 U. S. ____ (2017) 7
Opinion of the Court
Santana may seek to vindicate his father’s right to the
equal protection of the laws.6
Ordinarily, a party “must assert his own legal rights”
and “cannot rest his claim to relief on the legal rights . . .
of third parties.” Warth v. Seldin, 422 U.S. 490, 499
(1975). But we recognize an exception where, as here, “the
party asserting the right has a close relationship with the
person who possesses the right [and] there is a hindrance
to the possessor’s ability to protect his own interests.”
Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (quoting
Powers v. Ohio, 499 U.S. 400, 411 (1991)). José Morales’
ability to pass citizenship to his son, respondent Morales-
Santana, easily satisfies the “close relationship” require­
ment. So, too, is the “hindrance” requirement well met.
José Morales’ failure to assert a claim in his own right
“stems from disability,” not “disinterest,” Miller v. Al-
bright, 523 U.S. 420, 450 (1998) (O’Connor, J., concurring
in judgment), for José died in 1976, Record 140, many
years before the current controversy arose. See Hodel v.
Irving, 481 U.S. 704, 711–712, 723, n. 7 (1987) (children
and their guardians may assert Fifth Amendment rights
of deceased relatives). Morales-Santana is thus the “obvi­
ous claimant,” see Craig v. Boren, 429 U.S. 190, 197
(1976), the “best available proponent,” Singleton v. Wulff,
428 U.S. 106, 116 (1976), of his father’s right to equal
protection.
III
Sections 1401 and 1409, we note, date from an era when
the lawbooks of our Nation were rife with overbroad gen­
eralizations about the way men and women are. See, e.g.,
Hoyt v. Florida, 368 U.S. 57, 62 (1961) (women are the
——————
6 We explain why Morales-Santana has third-party standing in view
of the Government’s opposition to such standing in Flores-Villar v.
United States, 564 U.S. 210 (2011) (per curiam ). See Brief for United
States, O. T. 2010, No. 09–5801, pp. 10–14.
8 SESSIONS v. MORALES-SANTANA
Opinion of the Court
“center of home and family life,” therefore they can be
“relieved from the civic duty of jury service”); Goesaert v.
Cleary, 335 U.S. 464, 466 (1948) (States may draw “a
sharp line between the sexes”). Today, laws of this kind
are subject to review under the heightened scrutiny that
now attends “all gender-based classifications.” J. E. B. v.
Alabama ex rel. T. B., 511 U.S. 127, 136 (1994); see, e.g.,
United States v. Virginia, 518 U.S. 515, 555–556 (1996)
(state-maintained military academy may not deny admis­
sion to qualified women).
Laws granting or denying benefits “on the basis of the
sex of the qualifying parent,” our post-1970 decisions
affirm, differentiate on the basis of gender, and therefore
attract heightened review under the Constitution’s equal
protection guarantee. Califano v. Westcott, 443 U.S. 76,
84 (1979); see id., at 88–89 (holding unconstitutional
provision of unemployed-parent benefits exclusively to
fathers). Accord Califano v. Goldfarb, 430 U.S. 199, 206–
207 (1977) (plurality opinion) (holding unconstitutional a
Social Security classification that denied widowers survi­
vors’ benefits available to widows); Weinberger v. Wiesen-
feld, 420 U.S. 636, 648–653 (1975) (holding unconstitu­
tional a Social Security classification that excluded fathers
from receipt of child-in-care benefits available to mothers);
Frontiero v. Richardson, 411 U.S. 677, 688–691 (1973)
(plurality opinion) (holding unconstitutional exclusion of
married female officers in the military from benefits au­
tomatically accorded married male officers); cf. Reed v.
Reed, 404 U.S. 71, 74, 76–77 (1971) (holding unconstitu­
tional a probate-code preference for a father over a mother
as administrator of a deceased child’s estate).7
——————
7 See Gunther, In Search of Evolving Doctrine on a Changing Court:
A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) (“It
is difficult to understand [Reed] without an assumption that some
special sensitivity to sex as a classifying factor entered into the analy­
sis. . . . Only by importing some special suspicion of sex-related means
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Opinion of the Court
Prescribing one rule for mothers, another for fathers,
§1409 is of the same genre as the classifications we de­
clared unconstitutional in Reed, Frontiero, Wiesenfeld,
Goldfarb, and Westcott. As in those cases, heightened
scrutiny is in order. Successful defense of legislation that
differentiates on the basis of gender, we have reiterated,
requires an “exceedingly persuasive justification.” Virginia,
518 U.S., at 531 (internal quotation marks omitted);
Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981) (internal
quotation marks omitted).
A
The defender of legislation that differentiates on the
basis of gender must show “at least that the [challenged]
classification serves important governmental objectives
and that the discriminatory means employed are substan­
tially related to the achievement of those objectives.”
Virginia, 518 U.S., at 533 (quoting Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 724 (1982); alteration in
original); see Tuan Anh Nguyen v. INS, 533 U.S. 53, 60,
70 (2001). Moreover, the classification must substantially
serve an important governmental interest today, for “in
interpreting the [e]qual [p]rotection [guarantee], [we have]
recognized that new insights and societal understandings
can reveal unjustified inequality . . . that once passed
unnoticed and unchallenged.” Obergefell v. Hodges, 576
U. S. ___, ___ (2015) (slip op., at 20). Here, the Govern­
ment has supplied no “exceedingly persuasive justifica­
tion,” Virginia, 518 U.S., at 531 (internal quotation marks
omitted), for §1409(a) and (c)’s “gender-based” and “gender­
biased” disparity, Westcott, 443 U.S., at 84 (internal
quotation marks omitted).
1
History reveals what lurks behind §1409. Enacted in
——————
. . . can the [Reed] result be made entirely persuasive.”).
10 SESSIONS v. MORALES-SANTANA
Opinion of the Court
the Nationality Act of 1940 (1940 Act), see 54 Stat. 1139–
1140, §1409 ended a century and a half of congressional
silence on the citizenship of children born abroad to unwed
parents.8 During this era, two once habitual, but now
untenable, assumptions pervaded our Nation’s citizenship
laws and underpinned judicial and administrative rulings:
In marriage, husband is dominant, wife subordinate;
unwed mother is the natural and sole guardian of a non-
marital child.
Under the once entrenched principle of male dominance
in marriage, the husband controlled both wife and child.
“[D]ominance [of] the husband,” this Court observed in
1915, “is an ancient principle of our jurisprudence.” Mac-
kenzie v. Hare, 239 U.S. 299, 311 (1915).9 See generally
Brief for Professors of History et al. as Amici Curiae 4–15.
Through the early 20th century, a male citizen automati­
cally conferred U. S. citizenship on his alien wife. Act of
Feb. 10, 1855, ch. 71, §2, 10 Stat. 604; see Kelly v. Owen, 7
Wall. 496, 498 (1869) (the 1855 Act “confers the privileges
of citizenship upon women married to citizens of the United
States”); C. Bredbenner, A Nationality of Her Own:
Women, Marriage, and the Law of Citizenship 15–16, 20–21
(1998). A female citizen, however, was incapable of con­
ferring citizenship on her husband; indeed, she was sub­
ject to expatriation if she married an alien.10 The family of
——————
8 The provision was first codified in 1940 at 8 U.S. C. §605, see §205,
54 Stat. 1139–1140, and recodified in 1952 at §1409, see §309, 66 Stat.
238–239. For simplicity, we here use the latter designation.
9 This “ancient principle” no longer guides the Court’s jurisprudence.
See Kirchberg v. Feenstra, 450 U.S. 455, 456 (1981) (invalidating, on
equal protection inspection, Louisiana’s former “head and master”
rule).
10 See generally C. Bredbenner, A Nationality of Her Own: Women,
Marriage, and the Law of Citizenship 58–61 (1998); Sapiro, Women,
Citizenship, and Nationality: Immigration and Naturalization Policies
in the United States, 13 Politics & Society 1, 4–10 (1984). In 1907,
Congress codified several judicial decisions and prevailing State De­
Cite as: 582 U. S. ____ (2017) 11
Opinion of the Court
a citizen or a lawfully admitted permanent resident en­
joyed statutory exemptions from entry requirements, but
only if the citizen or resident was male. See, e.g., Act of
Mar. 3, 1903, ch. 1012, §37, 32 Stat. 1221 (wives and
children entering the country to join permanent-resident
aliens and found to have contracted contagious diseases
during transit shall not be deported if the diseases were
easily curable or did not present a danger to others);
S. Rep. No. 1515, 81st Cong., 2d Sess., 415–417 (1950)
(wives exempt from literacy and quota requirements).
And from 1790 until 1934, the foreign-born child of a
married couple gained U. S. citizenship only through the
father.11
For unwed parents, the father-controls tradition never
held sway. Instead, the mother was regarded as the
child’s natural and sole guardian. At common law, the
mother, and only the mother, was “bound to maintain [a
nonmarital child] as its natural guardian.” 2 J. Kent,
Commentaries on American Law *215–*216 (8th ed.
1854); see Nguyen, 533 U.S., at 91–92 (O’Connor, J.,
dissenting). In line with that understanding, in the early
20th century, the State Department sometimes permitted
——————
partment views by providing that a female U. S. citizen automatically
lost her citizenship upon marriage to an alien. Act of Mar. 2, 1907, ch.
2534, §3, 34 Stat. 1228; see L. Gettys, The Law of Citizenship in the
United States 119 (1934). This Court upheld the statute. Mackenzie v.
Hare, 239 U.S. 299, 311 (1915).
11 Act of Mar. 26, 1790, ch. 3, 1 Stat. 104; Act of Jan. 29, 1795, §3, 1
Stat. 415; Act of Apr. 14, 1802, §4, 2 Stat. 155; Act of Feb. 10, 1855, ch.
71, §2, 10 Stat. 604; see 2 J. Kent, Commentaries on American Law
*52–*53 (8th ed. 1854) (explaining that the 1802 Act, by adding “fa­
thers,” “seem[ed] to remove the doubt” about “whether the act intended
by the words, ‘children of persons,’ both the father and mother, . . . or
the father only”); Kerber, No Constitutional Right To Be Ladies: Women
and the Obligations of Citizenship 36 (1998); Brief for Professors of
History et al. as Amici Curiae 5–6. In 1934, Congress moved in a new
direction by allowing a married mother to transmit her citizenship to
her child. Act of May 24, 1934, ch. 344, §1, 48 Stat. 797.
12 SESSIONS v. MORALES-SANTANA
Opinion of the Court
unwed mothers to pass citizenship to their children, de­
spite the absence of any statutory authority for the prac­
tice. See Hearings on H. R. 6127 before the House Com­
mittee on Immigration and Naturalization, 76th Cong., 1st
Sess., 43, 431 (1940) (hereinafter 1940 Hearings); 39 Op.
Atty. Gen. 397, 397–398 (1939); 39 Op. Atty. Gen. 290, 291
(1939). See also Collins, Illegitimate Borders: Jus San-
guinis Citizenship and the Legal Construction of Family,
Race, and Nation, 123 Yale L. J. 2134, 2199–2205 (2014)
(hereinafter Collins).
In the 1940 Act, Congress discarded the father-controls
assumption concerning married parents, but codified the
mother-as-sole-guardian perception regarding unmarried
parents. The Roosevelt administration, which proposed
§1409, explained: “[T]he mother [of a nonmarital child]
stands in the place of the father . . . [,] has a right to
the custody and control of such a child as against the
putative father, and is bound to maintain it as its natu-
ral guardian.” 1940 Hearings 431 (internal quotation
marks omitted).
This unwed-mother-as-natural-guardian notion renders
§1409’s gender-based residency rules understandable.
Fearing that a foreign-born child could turn out “more
alien than American in character,” the administration
believed that a citizen parent with lengthy ties to the
United States would counteract the influence of the alien
parent. Id., at 426–427. Concern about the attachment of
foreign-born children to the United States explains the
treatment of unwed citizen fathers, who, according to the
familiar stereotype, would care little about, and have
scant contact with, their nonmarital children. For unwed
citizen mothers, however, there was no need for a pro­
longed residency prophylactic: The alien father, who might
transmit foreign ways, was presumptively out of the pic­
ture. See id., at 431; Collins 2203 (in “nearly uniform
view” of U. S. officials, “almost invariably,” the mother
Cite as: 582 U. S. ____ (2017) 13
Opinion of the Court
alone “concern[ed] herself with [a nonmarital] child” (in­
ternal quotation marks omitted)).
2
For close to a half century, as earlier observed, see
supra, at 7–8, this Court has viewed with suspicion laws
that rely on “overbroad generalizations about the different
talents, capacities, or preferences of males and females.”
Virginia, 518 U.S., at 533; see Wiesenfeld, 420 U.S., at
643, 648. In particular, we have recognized that if a “stat­
utory objective is to exclude or ‘protect’ members of one
gender” in reliance on “fixed notions concerning [that
gender’s] roles and abilities,” the “objective itself is illegit­
imate.” Mississippi Univ. for Women, 458 U.S., at 725.
In accord with this eventual understanding, the Court
has held that no “important [governmental] interest” is
served by laws grounded, as §1409(a) and (c) are, in the
obsolescing view that “unwed fathers [are] invariably less
qualified and entitled than mothers” to take responsibility
for nonmarital children. Caban v. Mohammed, 441 U.S.
380, 382, 394 (1979).12 Overbroad generalizations of that
order, the Court has come to comprehend, have a con­
straining impact, descriptive though they may be of the
——————
12 Lehr v. Robertson, 463 U.S. 248 (1983), on which the Court relied
in Tuan Anh Nguyen v. INS, 533 U.S. 53, 62–64 (2001), recognized
that laws treating fathers and mothers differently “may not constitu­
tionally be applied . . . where the mother and father are in fact similarly
situated with regard to their relationship with the child,” Lehr, 463
U.S., at 267. The “similarly situated” condition was not satisfied in
Lehr, however, for the father in that case had “never established any
custodial, personal, or financial relationship” with the child. Ibid.
Here, there is no dispute that José Morales formally accepted paren­
tal responsibility for his son during Morales-Santana’s childhood. See
supra, at 5. If subject to the same physical-presence requirements that
applied to unwed U. S.-citizen mothers, José would have been recog­
nized as Morales-Santana’s father “as of the date of birth.” §1409(a);
see §1409(c) (“at birth”).
14 SESSIONS v. MORALES-SANTANA
Opinion of the Court
way many people still order their lives.13 Laws according
or denying benefits in reliance on “[s]tereotypes about
women’s domestic roles,” the Court has observed, may
“creat[e] a self-fulfilling cycle of discrimination that
force[s] women to continue to assume the role of primary
family caregiver.” Nevada Dept. of Human Resources v.
Hibbs, 538 U.S. 721, 736 (2003). Correspondingly, such
laws may disserve men who exercise responsibility for
raising their children. See ibid. In light of the equal
protection jurisprudence this Court has developed since
1971, see Virginia, 518 U.S., at 531–534, §1409(a) and
(c)’s discrete duration-of-residence requirements for unwed
mothers and fathers who have accepted parental responsi­
bility is stunningly anachronistic.
B
In urging this Court nevertheless to reject Morales­
Santana’s equal protection plea, the Government cites
three decisions of this Court: Fiallo v. Bell, 430 U.S. 787
(1977); Miller v. Albright, 523 U.S. 420; and Nguyen v.
INS, 533 U.S. 53. None controls this case.
The 1952 Act provision at issue in Fiallo gave special
immigration preferences to alien children of citizen (or
——————
13 Even if stereotypes frozen into legislation have “statistical
support,” our decisions reject measures that classify unnecessarily and
overbroadly by gender when more accurate and impartial lines can be
drawn. J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 139, n. 11
(1994); see, e.g., Craig v. Boren, 429 U.S. 190, 198–199 (1976);
Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975). In fact, unwed
fathers assume responsibility for their children in numbers already
large and notably increasing. See Brief for Population and Family
Scholars as Amici Curiae 3, 5–13 (documenting that nonmarital fathers
“are [often] in a parental role at the time of their child’s birth,” and
“most . . . formally acknowledge their paternity either at the hospital or
in the birthing center just after the child is born”); Brief for American
Civil Liberties Union et al. as Amici Curiae 22 (observing, inter alia,
that “[i]n 2015, fathers made up 16 percent of single parents with
minor children in the United States”).
Cite as: 582 U. S. ____ (2017) 15
Opinion of the Court
lawful-permanent-resident) mothers, and to alien unwed
mothers of citizen (or lawful-permanent-resident) children.
430 U.S., at 788–789, and n. 1. Unwed fathers and their
children, asserting their right to equal protection, sought
the same preferences. Id., at 791. Applying minimal
scrutiny (rational-basis review), the Court upheld the
provision, relying on Congress’ “exceptionally broad power”
to admit or exclude aliens. Id., at 792, 794.14 This case,
however, involves no entry preference for aliens. Morales-
Santana claims he is, and since birth has been, a U. S.
citizen. Examining a claim of that order, the Court has
not disclaimed, as it did in Fiallo, the application of an
exacting standard of review. See Nguyen, 533 U.S., at
60–61, 70; Miller, 523 U.S., at 434–435, n. 11 (opinion of
Stevens, J.).
The provision challenged in Miller and Nguyen as viola­
tive of equal protection requires unwed U. S.-citizen fa­
thers, but not mothers, to formally acknowledge
parenthood of their foreign-born children in order to
transmit their U. S. citizenship to those children. See
§1409(a)(4) (2012 ed.).15 After Miller produced no opinion
——————
14 In 1986, nine years after the decision in Fiallo, Congress amended
the governing law. The definition of “child” that included offspring of
natural mothers but not fathers was altered to include children born
out of wedlock who established a bona fide parent-child relationship
with their natural fathers. See Immigration Reform and Control Act of
1986, §315(a), 100 Stat. 3439, as amended, 8 U.S. C. §1101(b)(1)(D)
(1982 ed., Supp. IV); Miller v. Albright, 523 U.S. 420, 429, n. 4 (1998)
(opinion of Stevens, J.).
15 Section 1409(a), following amendments in 1986 and 1988, see §13,
100 Stat. 3657; §8(k), 102 Stat. 2618, now states:
“The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of
this title, . . . shall apply as of the date of birth to a person born out of
wedlock if—
“(1) a blood relationship between the person and the father is estab­
lished by clear and convincing evidence,
“(2) the father had the nationality of the United States at the time of
the person’s birth,
16 SESSIONS v. MORALES-SANTANA
Opinion of the Court
for the Court, see 523 U.S., at 423, we took up the issue
anew in Nguyen. There, the Court held that imposing a
paternal-acknowledgment requirement on fathers was a
justifiable, easily met means of ensuring the existence of a
biological parent-child relationship, which the mother
establishes by giving birth. See 533 U.S., at 62–63.
Morales-Santana’s challenge does not renew the contest
over §1409’s paternal-acknowledgment requirement
(whether the current version or that in effect in 1970), and
the Government does not dispute that Morales-Santana’s
father, by marrying Morales-Santana’s mother, satisfied
that requirement.
Unlike the paternal-acknowledgment requirement at
issue in Nguyen and Miller, the physical-presence re­
quirements now before us relate solely to the duration of
the parent’s prebirth residency in the United States, not
to the parent’s filial tie to the child. As the Court of Ap­
peals observed in this case, a man needs no more time in
the United States than a woman “in order to have assimi­
lated citizenship-related values to transmit to [his]
child.” 804 F.3d, at 531. And unlike Nguyen’s parental-
acknowledgment requirement, §1409(a)’s age-calibrated
physical-presence requirements cannot fairly be described
as “minimal.” 533 U.S., at 70.
C
Notwithstanding §1409(a) and (c)’s provenance in tradi­
——————
“(3) the father (unless deceased) has agreed in writing to provide
financial support for the person until the person reaches the age of 18
years, and
“(4) while the person is under the age of 18 years—
“(A) the person is legitimated under the law of the person’s residence
or domicile,
“(B) the father acknowledges paternity of the person in writing under
oath, or
“(C) the paternity of the person is established by adjudication of a
competent court.”
Cite as: 582 U. S. ____ (2017) 17
Opinion of the Court
tional notions of the way women and men are, the Gov­
ernment maintains that the statute serves two important
objectives: (1) ensuring a connection between the child to
become a citizen and the United States and (2) preventing
“statelessness,” i.e., a child’s possession of no citizenship at
all. Even indulging the assumption that Congress intended
§1409 to serve these interests, but see supra, at 9–13,
neither rationale survives heightened scrutiny.
1
We take up first the Government’s assertion that
§1409(a) and (c)’s gender-based differential ensures that a
child born abroad has a connection to the United States of
sufficient strength to warrant conferral of citizenship at
birth. The Government does not contend, nor could it,
that unmarried men take more time to absorb U. S. values
than unmarried women do. See supra, at 16. Instead, it
presents a novel argument, one it did not advance in
Flores-Villar.16
An unwed mother, the Government urges, is the child’s
only “legally recognized” parent at the time of childbirth.
Brief for Petitioner 9–10, 28–32.17 An unwed citizen fa­
ther enters the scene later, as a second parent. A longer
physical connection to the United States is warranted for
the unwed father, the Government maintains, because of
the “competing national influence” of the alien mother.
Id., at 9–10. Congress, the Government suggests, de­
signed the statute to bracket an unwed U. S.-citizen mother
with a married couple in which both parents are U. S.
——————
16 In Flores-Villar, the Government asserted only the risk-of­
statelessness rationale, which it repeats here. See Brief for United
States, O. T. 2010, No. 09–5801, at 22–39; infra, at 19–23.
17 But see §1409(a) (unmarried U. S.-citizen father who satisfies the
physical-presence requirements and, after his child is born, accepts
parental responsibility transmits his citizenship to the child “as of the
date of birth”).
18 SESSIONS v. MORALES-SANTANA
Opinion of the Court
citizens,18 and to align an unwed U. S.-citizen father with
a married couple, one spouse a citizen, the other, an alien.
Underlying this apparent design is the assumption that
the alien father of a nonmarital child born abroad to a
U. S.-citizen mother will not accept parental responsibil­
ity. For an actual affiliation between alien father and
nonmarital child would create the “competing national
influence” that, according to the Government, justifies
imposing on unwed U. S.-citizen fathers, but not unwed
U. S.-citizen mothers, lengthy physical-presence require­
ments. Hardly gender neutral, see id., at 9, that assump­
tion conforms to the long-held view that unwed fathers
care little about, indeed are strangers to, their children.
See supra, at 9–13. Lump characterization of that kind,
however, no longer passes equal protection inspection.
See supra, at 13–14, and n. 13.
Accepting, arguendo, that Congress intended the diverse
physical-presence prescriptions to serve an interest in
ensuring a connection between the foreign-born nonmari­
tal child and the United States, the gender-based means
scarcely serve the posited end. The scheme permits the
transmission of citizenship to children who have no tie to
the United States so long as their mother was a U. S.
citizen continuously present in the United States for one
year at any point in her life prior to the child’s birth. The
transmission holds even if the mother marries the child’s
alien father immediately after the child’s birth and never
returns with the child to the United States. At the same
time, the legislation precludes citizenship transmission by
a U. S.-citizen father who falls a few days short of meeting
§1401(a)(7)’s longer physical-presence requirements, even
——————
18 When a child is born abroad to married parents, both U. S. citizens,
the child ranks as a U. S. citizen at birth if either parent “has had a
residence in the United States or one of its outlying possessions, prior
to the birth of [the child].” §1401(a)(3) (1958 ed.); §1401(c) (2012 ed.)
(same).
Cite as: 582 U. S. ____ (2017) 19
Opinion of the Court
if the father acknowledges paternity on the day of the
child’s birth and raises the child in the United States.19
One cannot see in this driven-by-gender scheme the close
means-end fit required to survive heightened scrutiny.
See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142,
151–152 (1980) (holding unconstitutional state workers’
compensation death-benefits statute presuming widows’
but not widowers’ dependence on their spouse’s earnings);
Westcott, 443 U.S., at 88–89.
2
The Government maintains that Congress established
the gender-based residency differential in §1409(a) and (c)
to reduce the risk that a foreign-born child of a U. S. citi­
zen would be born stateless. Brief for Petitioner 33. This
risk, according to the Government, was substantially
greater for the foreign-born child of an unwed U. S.-citizen
mother than it was for the foreign-born child of an unwed
U. S.-citizen father. Ibid. But there is little reason to
believe that a statelessness concern prompted the diverse
physical-presence requirements. Nor has the Government
shown that the risk of statelessness disproportionately
endangered the children of unwed mothers.
As the Court of Appeals pointed out, with one excep­
——————
19 Brief for Respondent 26, n. 9, presents this example: “Child A is
born in Germany and raised there by his U. S.-citizen mother who
spent only a year of her life in the United States during infancy; Child
B is born in Germany and is legitimated and raised in Germany by a
U. S.-citizen father who spent his entire life in the United States before
leaving for Germany one week before his nineteenth birthday. Not­
withstanding the fact that Child A’s ‘legal relationship’ with his U. S.­
citizen mother may have been established ‘at the moment of birth,’ and
Child B’s ‘legal relationship’ with his U. S.-citizen father may have been
established a few hours later, Child B is more likely than Child A to
learn English and assimilate U. S. values. Nevertheless, under the
discriminatory scheme, only Child A obtains U. S. citizenship at birth.”
For another telling example, see Brief for Equality Now et al. as Amici
Curiae 19–20.
20 SESSIONS v. MORALES-SANTANA
Opinion of the Court
tion,20 nothing in the congressional hearings and reports
on the 1940 and 1952 Acts “refer[s] to the problem of
statelessness for children born abroad.” 804 F.3d, at 532–
533. See Collins 2205, n. 283 (author examined “many
hundreds of pre-1940 administrative memos . . . de­
fend[ing] or explain[ing] recognition of the nonmarital
foreign-born children of American mothers as citizens”; of
the hundreds, “exactly one memo by a U. S. official . . .
mentions the risk of statelessness for the foreign-born
nonmarital children of American mothers as a concern”).
Reducing the incidence of statelessness was the express
goal of other sections of the 1940 Act. See 1940 Hearings
430 (“stateless[ness]” is “object” of section on foundlings).
The justification for §1409’s gender-based dichotomy,
however, was not the child’s plight, it was the mother’s
role as the “natural guardian” of a nonmarital child. See
supra, at 9–13; Collins 2205 (“[T]he pronounced gender
asymmetry of the Nationality Act’s treatment of nonmari­
tal foreign-born children of American mothers and fathers
was shaped by contemporary maternalist norms regarding
the mother’s relationship with her nonmarital child—and
——————
20 A Senate Report dated January 29, 1952, is the sole exception.
That Report relates that a particular problem of statelessness accounts
for the 1952 Act’s elimination of a 1940 Act provision the State De­
partment had read to condition a citizen mother’s ability to transmit
nationality to her child on the father’s failure to legitimate the child
prior to the child’s 18th birthday. See 1940 Act, §205, 54 Stat. 1140
(“In the absence of . . . legitimation or adjudication [during the child’s
minority], . . . the child” born abroad to an unmarried citizen mother
“shall be held to have acquired at birth [the mother’s] nationality
status.” (emphasis added)). The 1952 Act eliminated this provision,
allowing the mother to transmit citizenship independent of the father’s
actions. S. Rep. No. 1137, 82d Cong., 2d Sess., 39 (1952) (“This provi­
sion establish[es] the child’s nationality as that of the [citizen] mother
regardless of legitimation or establishment of paternity . . . .” (emphasis
added)). This sole reference to a statelessness problem does not touch
or concern the different physical-presence requirements carried over
from the 1940 Act into the 1952 Act.
Cite as: 582 U. S. ____ (2017) 21
Opinion of the Court
the father’s lack of such a relationship.”). It will not do to
“hypothesiz[e] or inven[t]” governmental purposes for
gender classifications “post hoc in response to litigation.”
Virginia, 518 U.S., at 533, 535–536.
Infecting the Government’s risk-of-statelessness argu­
ment is an assumption without foundation. “[F]oreign
laws that would put the child of the U. S.-citizen mother at
risk of statelessness (by not providing for the child to
acquire the father’s citizenship at birth),” the Government
asserts, “would protect the child of the U. S.-citizen father
against statelessness by providing that the child would
take his mother’s citizenship.” Brief for Petitioner 35.
The Government, however, neglected to expose this sup­
posed “protection” to a reality check. Had it done so, it
would have recognized the formidable impediments placed
by foreign laws on an unwed mother’s transmission of
citizenship to her child. See Brief for Scholars on State­
lessness as Amici Curiae 13–22, A1–A15.
Experts who have studied the issue report that, at the
time relevant here, in “at least thirty countries,” citizen
mothers generally could not transmit their citizenship to
nonmarital children born within the mother’s country.
Id., at 14; see id., at 14–17. “[A]s many as forty-five coun­
tries,” they further report, “did not permit their female
citizens to assign nationality to a nonmarital child born
outside the subject country with a foreign father.” Id., at
18; see id., at 18–21. In still other countries, they also
observed, there was no legislation in point, leaving the
nationality of nonmarital children uncertain. Id., at 21–22;
see Sandifer, A Comparative Study of Laws Relating to
Nationality at Birth and to Loss of Nationality, 29 Am. J.
Int’l L. 248, 256, 258 (1935) (of 79 nations studied, about
half made no specific provision for the nationality of non-
marital children). Taking account of the foreign laws
actually in force, these experts concluded, “the risk of
parenting stateless children abroad was, as of [1940 and
22 SESSIONS v. MORALES-SANTANA
Opinion of the Court
1952], and remains today, substantial for unmarried U. S.
fathers, a risk perhaps greater than that for unmarried
U. S. mothers.” Brief for Scholars on Statelessness as
Amici Curiae 9–10; see id., at 38–39. One can hardly
characterize as gender neutral a scheme allegedly attend­
ing to the risk of statelessness for children of unwed U. S.­
citizen mothers while ignoring the same risk for children
of unwed U. S.-citizen fathers.
In 2014, the United Nations High Commissioner for
Refugees (UNHCR) undertook a ten-year project to elimi­
nate statelessness by 2024. See generally UNHCR, End­
ing Statelessness Within 10 Years, online at http://
www.unhcr.org/en-us/protection/statelessness/546217229/
special-report-ending-statelessness-10-years.html (all
Internet materials as last visited June 9, 2017). Cogni­
zant that discrimination against either mothers or fathers
in citizenship and nationality laws is a major cause of
statelessness, the Commissioner has made a key compo­
nent of its project the elimination of gender discrimination
in such laws. UNHCR, The Campaign To End Stateless­
ness: April 2016 Update 1 (referring to speech of UNHCR
“highlight[ing] the issue of gender discrimination in the
nationality laws of 27 countries—a major cause of state­
lessness globally”), online at http://www.unhcr.org/ibelong/
wp-content / uploads / Campaign-Update-April-2016.pdf;
UNHCR, Background Note on Gender Equality, Nationali­
ty Laws and Statelessness 2016, p. 1 (“Ensuring gender
equality in nationality laws can mitigate the risks of
statelessness.”), online at http://www.refworld.org/docid/
56de83ca4.html. In this light, we cannot countenance risk
of statelessness as a reason to uphold, rather than strike
out, differential treatment of unmarried women and
men with regard to transmission of citizenship to their
children.
In sum, the Government has advanced no “exceedingly
persuasive” justification for §1409(a) and (c)’s gender­
Cite as: 582 U. S. ____ (2017) 23
Opinion of the Court
specific residency and age criteria. Those disparate crite­
ria, we hold, cannot withstand inspection under a Consti­
tution that requires the Government to respect the equal
dignity and stature of its male and female citizens.21
IV
While the equal protection infirmity in retaining a
longer physical-presence requirement for unwed fathers
than for unwed mothers is clear, this Court is not
equipped to grant the relief Morales-Santana seeks, i.e.,
extending to his father (and, derivatively, to him) the
benefit of the one-year physical-presence term §1409(c)
reserves for unwed mothers.
There are “two remedial alternatives,” our decisions
instruct, Westcott, 443 U.S., at 89 (quoting Welsh v. United
States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring
in result)), when a statute benefits one class (in this case,
unwed mothers and their children), as §1409(c) does, and
excludes another from the benefit (here, unwed fathers
and their children). “[A] court may either declare [the
statute] a nullity and order that its benefits not extend to
the class that the legislature intended to benefit, or it may
extend the coverage of the statute to include those who are
aggrieved by exclusion.” Westcott, 443 U.S., at 89 (quot­
ing Welsh, 398 U.S., at 361 (opinion of Harlan, J.)).22
——————
21 JUSTICE THOMAS, joined by JUSTICE ALITO, sees our equal protection
ruling as “unnecessary,” post, at 1, given our remedial holding. But, “as
we have repeatedly emphasized, discrimination itself . . . perpetuat[es]
‘archaic and stereotypic notions’ ” incompatible with the equal treat­
ment guaranteed by the Constitution. Heckler v. Mathews, 465 U.S.
728, 739 (1984) (quoting Mississippi Univ. for Women v. Hogan, 458
U.S. 718, 725 (1982)).
22 After silently following the path Justice Harlan charted in Welsh v.
United States, 398 U.S. 333 (1970), in several cases involving gender-
based discrimination, see, e.g., Wiesenfeld, 420 U.S., at 642, 653
(extending benefits); Frontiero v. Richardson, 411 U.S. 677, 690–691,
and n. 25 (1973) ( plurality opinion) (same), the Court unanimously
24 SESSIONS v. MORALES-SANTANA
Opinion of the Court
“[W]hen the ‘right invoked is that to equal treatment,’ the
appropriate remedy is a mandate of equal treatment, a
result that can be accomplished by withdrawal of benefits
from the favored class as well as by extension of benefits
to the excluded class.” Heckler v. Mathews, 465 U.S. 728,
740 (1984) (quoting Iowa-Des Moines Nat. Bank v. Ben-
nett, 284 U.S. 239, 247 (1931); emphasis deleted). “How
equality is accomplished . . . is a matter on which the
Constitution is silent.” Levin v. Commerce Energy, Inc.,
560 U.S. 413, 426–427 (2010).23
The choice between these outcomes is governed by the
legislature’s intent, as revealed by the statute at hand.
See id., at 427 (“On finding unlawful discrimination, . . .
courts may attempt, within the bounds of their institu­
tional competence, to implement what the legislature
would have willed had it been apprised of the constitu­
tional infirmity.”). See also Ayotte v. Planned Parenthood
of Northern New Eng., 546 U.S. 320, 330 (2006) (“the
touchstone for any decision about remedy is legislative
——————
adopted his formulation in Califano v. Westcott, 443 U.S. 76 (1979).
See id., at 89–90 (opinion for the Court); id., at 94–95 (Powell, J.,
concurring in part and dissenting in part). The appropriate remedy,
the Westcott majority held, was extension to unemployed mothers of
federal family-aid unemployment benefits provided by statute only for
families of unemployed fathers. Id., at 90–93. In the dissent’s view,
nullification was the proper course. Id., at 94–96.
23 Because the manner in which a State eliminates discrimination “is
an issue of state law,” Stanton v. Stanton, 421 U.S. 7, 18 (1975), upon
finding state statutes constitutionally infirm, we have generally re­
manded to permit state courts to choose between extension and invali­
dation. See Levin v. Commerce Energy, Inc., 560 U.S. 413, 427 (2010).
In doing so, we have been explicit in leaving open on remand the option
of removal of a benefit, as opposed to extension. See, e.g., Orr v. Orr,
440 U.S. 268, 283–284 (1979) (leaving to state courts remedy for
unconstitutional imposition of alimony obligations on husbands but not
wives); Stanton, 421 U.S., at 17–18 (how to eliminate unconstitutional
age differential, for child-support purposes, between male and female
children, is “an issue of state law to be resolved by the Utah courts”).
Cite as: 582 U. S. ____ (2017) 25
Opinion of the Court
intent”).24
Ordinarily, we have reiterated, “extension, rather than
nullification, is the proper course.” Westcott, 443 U.S., at
89. Illustratively, in a series of cases involving federal
financial assistance benefits, the Court struck discrimina­
tory exceptions denying benefits to discrete groups, which
meant benefits previously denied were extended. See, e.g.,
Goldfarb, 430 U.S., at 202–204, 213–217 (plurality opin­
ion) (survivors’ benefits), aff ’g 396 F. Supp. 308, 309
(EDNY 1975) (per curiam); Jimenez v. Weinberger, 417
U.S. 628, 630–631, and n. 2, 637–638 (1974) (disability
benefits); Department of Agriculture v. Moreno, 413 U.S.
528, 529–530, 538 (1973) (food stamps); Frontiero, 411
U.S., at 678–679, and n. 2, 691, and n. 25 (plurality opin­
ion) (military spousal benefits). Here, however, the dis­
criminatory exception consists of favorable treatment for a
discrete group (a shorter physical-presence requirement
for unwed U. S.-citizen mothers giving birth abroad).
Following the same approach as in those benefits cases—
——————
24 We note, however, that a defendant convicted under a law classify­
ing on an impermissible basis may assail his conviction without regard
to the manner in which the legislature might subsequently cure the
infirmity. In Grayned v. City of Rockford, 408 U.S. 104 (1972), for
example, the defendant participated in a civil rights demonstration in
front of a school. Convicted of violating a local “antipicketing” ordi­
nance that exempted “peaceful picketing of any school involved in a
labor dispute,” he successfully challenged his conviction on equal
protection grounds. Id., at 107 (internal quotation marks omitted). It
was irrelevant to the Court’s decision whether the legislature likely
would have cured the constitutional infirmity by excising the labor-
dispute exemption. In fact, the legislature had done just that subse­
quent to the defendant’s conviction. Ibid., and n. 2. “Necessarily,” the
Court observed, “we must consider the facial constitutionality of the
ordinance in effect when [the defendant] was arrested and convicted.”
Id., at 107, n. 2. See also Welsh, 398 U.S., at 361–364 (Harlan, J.,
concurring in result) (reversal required even if, going forward, Congress
would cure the unequal treatment by extending rather than invalidat­
ing the criminal proscription).
26 SESSIONS v. MORALES-SANTANA
Opinion of the Court
striking the discriminatory exception—leads here to ex­
tending the general rule of longer physical-presence re­
quirements to cover the previously favored group.
The Court has looked to Justice Harlan’s concurring
opinion in Welsh v. United States, 398 U.S., at 361–367,
in considering whether the legislature would have struck
an exception and applied the general rule equally to all, or
instead, would have broadened the exception to cure the
equal protection violation. In making this assessment, a
court should “ ‘measure the intensity of commitment to the
residual policy’ ”—the main rule, not the exception—“ ‘and
consider the degree of potential disruption of the statutory
scheme that would occur by extension as opposed to abro­
gation.’ ” Heckler, 465 U.S., at 739, n. 5 (quoting Welsh,
398 U.S., at 365 (opinion of Harlan, J.)).
The residual policy here, the longer physical-presence
requirement stated in §§1401(a)(7) and 1409, evidences
Congress’ recognition of “the importance of residence in
this country as the talisman of dedicated attachment.”
Rogers v. Bellei, 401 U.S. 815, 834 (1971); see Weedin v.
Chin Bow, 274 U.S. 657, 665–666 (1927) (Congress “at­
tached more importance to actual residence in the United
States as indicating a basis for citizenship than it did to
descent. . . . [T]he heritable blood of citizenship was thus
associated unmistakeably with residence within the coun­
try which was thus recognized as essential to full citizen­
ship.” (internal quotation marks omitted)). And the poten­
tial for “disruption of the statutory scheme” is large. For if
§1409(c)’s one-year dispensation were extended to unwed
citizen fathers, would it not be irrational to retain the
longer term when the U. S.-citizen parent is married?
Disadvantageous treatment of marital children in compar­
ison to nonmarital children is scarcely a purpose one can
sensibly attribute to Congress.25
——————
25 Distinctions based on parents’ marital status, we have said, are
Cite as: 582 U. S. ____ (2017) 27
Opinion of the Court
Although extension of benefits is customary in federal
benefit cases, see supra, at 23–24, n. 22, 25, all indicators
in this case point in the opposite direction.26 Put to the
choice, Congress, we believe, would have abrogated
§1409(c)’s exception, preferring preservation of the general
rule.27
V
The gender-based distinction infecting §§1401(a)(7) and
1409(a) and (c), we hold, violates the equal protection
principle, as the Court of Appeals correctly ruled. For the
reasons stated, however, we must adopt the remedial
course Congress likely would have chosen “had it been
apprised of the constitutional infirmity.” Levin, 560 U.S.,
at 427. Although the preferred rule in the typical case is
——————
subject to the same heightened scrutiny as distinctions based on
gender. Clark v. Jeter, 486 U.S. 456, 461 (1988).
26 In crafting the INA in 1952, Congress considered, but did not adopt,
an amendment that would have applied the shorter one-year continu­
ous physical-presence requirement now contained in §1409(c) to all
foreign-born children of parents with different nationalities. See
S. 2842, 82d Cong., 2d Sess., §301(a)(5) (1952).
27 Compare with the remedial issue presented here suits under Title
VII of the Civil Rights Act of 1964 challenging laws prescribing terms
and conditions of employment applicable to women only, e.g., minimum
wage, premium pay, rest breaks, or lunch breaks. Most courts, perhaps
mindful of the mixed motives implicated in passage of such legislation
(some conceiving the laws as protecting women, others, as discouraging
employers from hiring women), and, taking into account the economic
burdens extension would impose on employers, have invalidated the
provisions. See, e.g., Homemakers, Inc., of Los Angeles v. Division of
Industrial Welfare, 509 F.2d 20, 22–23 (CA9 1974), aff ’g 356 F. Supp.
1111 (1973) (ND Cal. 1973); Burns v. Rohr Corp., 346 F. Supp. 994,
997–998 (SD Cal. 1972); RCA del Caribe, Inc. v. Silva Recio, 429
F. Supp. 651, 655–658 (PR 1976); Doctors Hospital, Inc. v. Recio, 383
F. Supp. 409, 417–418 (PR 1974); State v. Fairfield Communities Land
Co., 260 Ark. 277, 279–281, 538 S.W.2d 698, 699–700 (1976); Jones
Metal Products Co. v. Walker, 29 Ohio St. 2d 173, 178–183, and n. 6,
281 N.E.2d 1, 6–9, and n. 6 (1972); Vick v. Pioneer Oil Co., 569
S.W.2d 631, 633–635 (Tex. Civ. App. 1978).
28 SESSIONS v. MORALES-SANTANA
Opinion of the Court
to extend favorable treatment, see Westcott, 443 U.S., at
89–90, this is hardly the typical case.28 Extension here
would render the special treatment Congress prescribed in
§1409(c), the one-year physical-presence requirement for
U. S.-citizen mothers, the general rule, no longer an excep­
tion. Section 1401(a)(7)’s longer physical-presence re­
quirement, applicable to a substantial majority of children
born abroad to one U. S.-citizen parent and one foreign-
citizen parent, therefore, must hold sway.29 Going for­
ward, Congress may address the issue and settle on a
uniform prescription that neither favors nor disadvantages
any person on the basis of gender. In the interim,
as the Government suggests, §1401(a)(7)’s now-five-
year requirement should apply, prospectively, to children
born to unwed U. S.-citizen mothers. See Brief for Peti­
tioner 12, 51; Reply Brief 19, n. 3.
* * *
The judgment of the Court of Appeals for the Second
Circuit is affirmed in part and reversed in part, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
——————
28 The Court of Appeals found the remedial issue “the most vexing
problem in this case.” 804 F.3d 520, 535 (2015).
29 That Morales-Santana did not seek this outcome does not restrain
the Court’s judgment. The issue turns on what the legislature would
have willed. “The relief the complaining party requests does not
circumscribe this inquiry.” Levin, 560 U.S., at 427.
Cite as: 582 U. S. ____ (2017) 1
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1191
_________________
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
PETITIONER v. LUIS RAMON MORALES-SANTANA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 12, 2017]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
concurring in the judgment in part.
The Court today holds that we are “not equipped to”
remedy the equal protection injury that respondent claims
his father suffered under the Immigration and Nationality
Act (INA) of 1952. Ante, at 23. I agree with that holding.
As the majority concludes, extending 8 U.S. C. §1409(c)’s
1-year physical presence requirement to unwed citizen
fathers (as respondent requests) is not, under this Court’s
precedent, an appropriate remedy for any equal protection
violation. See ante, at 23. Indeed, I am skeptical that we
even have the “power to provide relief of the sort requested
in this suit—namely, conferral of citizenship on a basis
other than that prescribed by Congress.” Tuan Anh Nguyen
v. INS, 533 U.S. 53, 73 (2001) (Scalia, J., joined by
THOMAS, J., concurring) (citing Miller v. Albright, 523
U.S. 420, 452 (1998) (Scalia, J., joined by THOMAS, J.,
concurring in judgment)).
The Court’s remedial holding resolves this case. Be-
cause respondent cannot obtain relief in any event, it is
unnecessary for us to decide whether the 1952 version of
the INA was constitutional, whether respondent has third-
party standing to raise an equal protection claim on behalf
of his father, or whether other immigration laws (such as
the current versions of §§1401(g) and 1409) are constitu-
2 SESSIONS v. MORALES-SANTANA
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
tional. I therefore concur only in the judgment reversing
the Second Circuit.