Janet M. Calvo
This term the U.S. Supreme Court will consider the case, Lynch v. Luis Ramon Morales-Santana. Luis Morales-Santana was born in the Dominican Republic in 1962 to a United States citizen father, Jose Morales, and a Dominican mother. His parents were unmarried at the time. Luis Morales-Santana was “legitimated” by his parents’ marriage in 1970. He became a legal permanent resident of the U.S. in 1975 at age 13 when he moved to the U.S. with his parents. He has lived in the U.S. since that time, for over forty years. Before his birth, his father, Jose Morales, was physically present in Puerto Rico until just twenty days before his nineteenth birthday when he left Puerto Rico to work for an American company in the Dominican Republic, then occupied by the United States.
The case specifically addresses the constitutionality of gender differences in the acquisition of U.S. citizenship by statute through parentage. But the case is infused with issues about the historical record of discrimination in the United States based in gender and non-marital birth. The beginning words to the song, “Alexander Hamilton.” indicate the historical stereotypes regarding out of wedlock children and their parents: “How does a bastard, orphan, son of a
whore….Impoverished, in Squalor….The ten dollar founding father without a father….” The outcome of the case will be significant because of the standards the court may apply to gender discrimination, and to a remedy for discrimination in the context of citizenship, and the societal message sent about parental responsibility for non- marital children grounded in gender stereotypes.
The statute in effect at Luis Morales-Santana’s birth in 1962 required that that an out of wedlock father have ten years of physical presence in the U.S., five years of which had to be after the father’s fourteenth birthday. In contrast, an out of wedlock mother had to have continuous physical presence in the U.S. for only one year at any time prior to the child’s birth.
The United States Court of Appeals for the Second Circuit held that the gender based difference in the statute’s physical presence requirements violated the Equal Protection Provisions of the U.S. Constitution. The Second Circuit accepted Mr. Morales-Santana’s claim that he was a citizen at birth through his citizen father as a remedy for the statute’s gender discrimination. The federal government appealed to the U.S. Supreme Court.
This is not the first time the U.S. Supreme Court has addressed the issue of the constitutionality of the difference in physical presence requirements for mothers and fathers for derivative citizenship of their children. In 2011, the Supreme Court divided four to four in the case of United States v. Flores-Villar.
In its equal protection analysis, the Second Circuit first decided to apply intermediate “heighted” scrutiny since it determined that the statute discriminated on the basis of gender. The court stated;
“Under intermediate scrutiny, the government classification must serve actual and important governmental objectives, and the discriminatory means employed must be substantially related to the achievement of those objectives.”
“the justification for the challenged classification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” 
The court then turned to the question of whether the government had shown that the statute’s gender based distinction was substantially related to an actual and important governmental objective. The circuit court rejected the government’s two proposed objectives. The first assertion was that the legislature imposed the distinction to ensure a sufficient connection between the United States and the U.S. citizen’s child. The court did not see any reason “that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.”
The second government assertion was that the legislature imposed different physical presence requirement to reduce the level of statelessness among newborn children. The court found that the avoidance of statelessness was not the actual legislative purpose, and further, that the difference in the physical presence requirements was not substantially related to that goal. Rather, the historical legislative record reflected legislators’ gender-based generalizations concerning who would care for and be associated with a child born out of wedlock. Further, even if the potential for statelessness was the legislative concern, gender neutral alternatives could achieve that goal, such as providing citizenship to a child born to a citizen in the event that the child would otherwise be stateless.
The Second Circuit then decided that as a remedy for the equal protection violation Luis Ramon Morales-Santana was a U.S. citizen at birth because his citizen father met the one year of continuous physical presence required of a citizen mother. The court found that this remedy was most consistent with Congressional intent. The court rejected the contention that it was unlawfully affording citizenship. It held that the court was exercising its traditional remedial powers “so that the statute, free of its constitutional defect, can operate to determine whether citizenship was transmitted at birth.” In the court’s view, the judgment in Mr. Morales’ favor confirms his pre-existing citizenship acquired at birth rather than granting him rights that he did not possess.
Will the Supreme Court affirm the Second Circuit’s opinion? The outcome will not only affect Mr. Morales- Santana and others seeking derivative citizenship, but it will also convey messages about gender equality, parental responsibility and discrimination grounded in out of wedlock birth. 
 Lynch v. Morales-Santana, 136 S.Ct. 2545, June 28, 2016; http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/
 See, Serena Mayeri, Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality, 125 Yale L.J. 2292 (2016); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820208; Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134 (2014); http://www.yalelawjournal.org/article/illegitimate-borders-jus-sanguinis-citizenship-and-the-legal-construction-of-family-race-and-nation; Janet M. Calvo, Gender, Wives, and U.S. Citizenship Status: The Failure of Constitutional and Legislative Protection, The International Review of Constitutionalism, Volume 9, 2010, Number 2; https://calvo.commons.gc.cuny.edu/2016/10/02/gender-wives-and…tizenship-status/; Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, 63 Fla. L. Rev. 345 (2011)
 Morales–Santana v. Lynch, 804 F.3d 520 (2d Cir.2015).
 The case arose in the context of a removal case. The government claimed Mr. Morales-Santana was removable because of a criminal conviction. He claimed he was not removable because he was not an “alien” but a citizen at birth through his father. Morales–Santana v. Lynch, 804 F.3d 520 (2d Cir.2015).
 Flores-Villar v. United States, 564 U.S. 210 (2011);
For description of and commentary on Flores-Villar see posts by Professor Ruthann Robson on the Constitutional Law Blog, http://lawprofessors.typepad.com/conlaw/2010/03/gender-equal-protection-immigration-scotus-grants-cert-in-floresvillar analysis.html; http://lawprofessors.typepad.com/conlaw/2010/11/flores-villar-oral-argument-analysis-fathers-rights-or-citizenship-rights.html; http://lawprofessors.typepad.com/conlaw/2011/06/equally-divided-court-affirms-flores-villar-gender-differentials-in-immigration-statutes-remain-cons.html;http://lawprofessors.typepad.com/conlaw/2011/07/revisiting-flores-villar.html
 Morales–Santana v. Lynch, 804 F.3d 520 at 527
 Id at 530
 Morales–Santana v. Lynch, 804 F.3d 520 at 537.
 Morales–Santana v. Lynch, 804 F.3d 520 at 537-538.
 The law can reinforce or reject stigma against certain groups. See Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, 63 Fla. L. Rev. 345 at footnote 207 and the articles cited in that footnote (2011)