Tag Archives: gender discrimination

U.S. Supreme Court to Hear Case Regarding Gender Discrimination In Derivative Citizenship; Lynch v. Luis Ramon Morales-Santana


Janet M. Calvo

This term the U.S. Supreme Court will consider the case,  Lynch v. Luis Ramon Morales-Santana[1]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 tfather-and-childhe 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.[2]  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….”[3] 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 us10dollarbill-series_2004abirth 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.[4] 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.[5]  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.[6]

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.” [7]

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.”[8]

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.”[9]  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.[10]

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. [11]


[1] Lynch v. Morales-Santana, 136 S.Ct. 2545,  June 28, 2016; http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/

[2] 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)

[3] https://www.youtube.com/watch?v=yIl1OIGzuDg

[4] Morales–Santana v. Lynch, 804 F.3d 520 (2d Cir.2015).

[5] 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).

[6] 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.htmlhttp://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

[7] Morales–Santana v. Lynch, 804 F.3d 520 at 527

[8] Id at 530

[9] Morales–Santana v. Lynch, 804 F.3d 520 at 537.

[10] Morales–Santana v. Lynch, 804 F.3d 520 at 537-538.

[11] 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)

Gender, Wives, and U.S. Citizenship Status


 Gender, Wives, and U.S. Citizenship Status: The Failure of Constitutional and Legislative Protection            Janet M. Calvo[1]


Historically, the citizenship of women as wives has not been fully protected by either the United States Constitution or the United States Congress.  Citizen women married to non-citizen men suffered the involuntary loss of citizenship.   Non-citizen women married to citizens suffered a subordinating process for the acquisition of citizenship.  Both the loss and acquisition of citizenship by wives were historically based in state imposed gender norms that devalued women.   Further, the easily accepted gender norms formed the constitutional basis for the involuntary expatriation of expanding groups of other citizens.   Legacies of this history persist in the failure of the Supreme Court and Congress to conclusively reject marriage as an expatriating act, the persistence of Congressional power to set expatriating acts, the continuing and proposed punishment for transnational connections, and an immigration system that impedes the family unity of citizens and their spouses.  This history and its legacies undermine a concept of citizenship grounded in the value of each individual citizen and a protection of individual capacity and choice.


The citizenship of women as wives has not been fully protected by either the United States Constitution or the United States Congress.  Citizen women married to non-citizen men suffered the involuntary loss of citizenship.   Non-citizen women married to citizens suffered a subordinating process for the acquisition of citizenship.   Laws limiting citizenship status undermined individual choice based in notions about gender combined with notions about “race” and association with the “foreign.”

Citizenship status was and continues to be important even in a rapidly globalizing world.[2]  Citizenship provides the basic right to indefinitely live in a country and not be forcibly removed. Citizenship, in a democracy like the United States, defines who has the right to determine how the society is run, who has the right to permanently gain the benefits the society has to offer,[3] as well as who takes responsibility for the society as a whole.[4]  The right to citizenship is the “right to have rights.”[5]  Yet, statutes and court decisions interpreting the U.S. Constitution have imposed societal views about gender, rather than protecting citizenship.  The gender views imposed have most often perpetuated the subordination of women and limited female choice.  Ironically, however, the views about women as wives provided practical personal advantage at times, for some women, even while limiting independent choice for women as a whole.

This article examines the constitutional and legislative protection of citizenship status in the United States through the lens of gender, particularly through the restrictions imposed on women as wives in the history of citizenship, a role historically ascribed to women. While the primary focus here is on gender, gender-based restrictions on citizenship intersect with race-based restrictions on citizenship.  Accordingly, the lens of “race” as conceived in the citizenship context is included for an understandable analysis of gender. The notions about gender and a women’s incapacity for agency and citizenship reflect a broader tension in U.S. concepts of citizenship also underlying the interrelated restrictions on citizenship based on racism and xenophobia.

This article first examines the loss of citizenship through marriage.   It details the constitutional adjudication that upheld the involuntary expatriation of wives.  It demonstrates how easily accepted gender norms formed the constitutional basis for the involuntary expatriation of not only women, but also expanding groups of other citizens.  Although the Supreme Court curtailed legislative power to involuntarily expatriate citizens, it has never fully rejected the notions of gender subordination underlying citizenship loss.  The article next turns to the legislative approach to gender based expatriation.  It shows how Congress intertwined gender, race and fear of the “foreign” to limit the legislation  that was purported to remove the expatriation of citizen women.  It examines the legacies of the expatriation of wives, including concerns about the constitutionality of marriage as an expatriating act, the persistence of Congressional power to set expatriating acts and the continuing and potential punishment for transnational connections.

This article then turns to the acquisition of citizenship by wives through marriage to U.S. citizens.  For a period of time, by statute, the wife of a U.S. citizen acquired U.S. citizenship by the fact of her marriage.  This article explains how for some women this promoted the unity of their families, even while imposing subordinating gender stereotypes.  It then turns to the legacy of imposing notions of independent citizenship on wives’ acquisition of citizenship; the current arduous road to citizenship status that still includes aspects of control of wives by their husbands.   The article concludes by asserting a view of citizenship in a democracy that values individual choice and dignity.

The Loss of Wives’ Citizenship Through Marriage


In the United States, women lost their citizenship through marriage to men who were not citizens, and the U.S. Supreme Court upheld this extraordinary outcome as constitutionalThe U.S. Constitution only directly addresses citizenship in two limited provisions. The original Constitution contained no definition of citizenship.  It merely included the authority for Congress to “establish a uniform rule of naturalization.”[6] The Fourteenth Amendment added in 1868 provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.”[7]

The Fourteenth Amendment did not include explicit rights for women as fought for by women’s rights advocates, many of whom had been active in abolitionist movements.[8]  However, these advocates believed that the Fourteenth Amendment’s guarantee of the privileges and immunities of citizenship to all those born or naturalized in the United States applied to them.[9]  The Supreme Court decisions in cases such as Bradwell v. State of Illinois[10] in 1873 and Minor v. Happersat[11] in 1875 disabused them of those notions by finding that endeavors such as practicing a profession and voting were not incidents of citizenship.[12]  These cases reflected the view that the proper place for women was not in the economic or political sphere.[13]

Yet, it was a shock to women in the United States when they discovered that, over forty years after its passage, the Fourteenth Amendment did not even protect their more basic right to base line citizenship.[14]  In 1907, Congress passed an Expatriation Act that stated that upon marriage a woman assumed the nationality of her husband.[15]  This resulted in the involuntary loss of citizenship for women who were born or naturalized in the United States if they married a man who was not a U.S. citizen, even if the couple lived in the United States.  Further, as a result, some women were rendered stateless and others were designated with the citizenship of a country with which they had no contact.[16]  Moreover, the law perpetuated deep gender discrimination.  Not only did male citizens not lose citizenship by marrying a non-citizen, but also under an 1855 statute, their wives gained U.S. citizenship through marriage.[17]

The 1907 and 1855 statutes infused the common law notion of coverture into citizenship.  Under the common law notion of coverture a wife was considered a feme covert, under the protection and influence of her husband, who was considered her baron, or lord.  Husband and wife were one, and the one was the husband.  Under this doctrine a wife could not make a contract with her husband or with others.  She could not engage in litigation.  She could not make a will.  The personal property that a woman owned before marriage and that she acquired during the marriage became her husband’s property. A husband had the use of his wife’s real property during the marriage.  The husband was the sole guardian of the couple’s children.[18]

However, by the turn of the twentieth century, coverture had been undermined by statutory changes. In the nineteenth century, state legislatures began to enact statutes that reduced the legal disabilities of married women.  These statutes, generally known as Married Women’s Property Acts, gave women greater control over the raising of children and the disposition of individual and family wealth.  By the turn of the century, all states had versions of such statutes.  Subsequently, additional laws began to be passed that specified the removal of married women’s legal disabilities.  These laws afforded married women rights including the right to joint custody of children, the right to sue and be sued, the right to contract, and the right to own and control real and personal property.[19]

In 1915, the U.S. Supreme Court in Mackenzie v. Hare upheld the constitutionality of the 1907 Act despite strong claims that the Fourteenth Amendment protected the citizenship of women.[20]  Ethel Mackenzie was born in and lived in California.  She was married to a British citizen who lived with her in California.  Her native California passed a law allowing female suffrage for women citizens and Mackenzie attempted to register to vote.[21]  However, she was denied because it was asserted she was not a U.S. citizen, because she had married a British citizen.  Ethel Mackenzie could not believe that Congress intended to take away her citizenship and so she challenged the denial of her registration to vote.[22]  The Supreme Court upheld the determination that she was not a U.S. citizen.[23]

The 1907 law and the 1915 Mackenzie decision upholding its constitutionality reinforced and perpetuated concepts of a subordinated role for women in U.S. society.  The statute imposed a more expansive view of coverture in the area of citizenship than had previously existed and did so at a time when coverture’s restraints were being loosened in other areas.  The Supreme Court infused the subordination concept underlying the coverture doctrine into the basic concept of citizenship and put a constitutional imprimatur on it.

Further, the Supreme Court established the constitutionality of the extraordinary notion of involuntary expatriation that endured deep into the twentieth century.  This notion allowed the expatriation not only of women, but also expanding groups of naturalized and native-born citizens.  Authority to involuntarily expatriate perpetuated the idea that some were worthy of citizenship and some were not.  Gender-based stereotypes thus formed the basis for a broader notion of government authority to remove the citizenship of others.  Because the Court so readily accepted subordinating gender norms, it was easy to slide into the extreme result of citizenship loss for connection with the “foreign.”  It was seen as inherently correct that women who deigned to associate with the “foreign” through marriage were not worthy of citizenship.  Today the legacy of that too easily accepted notion underlies attempts to denigrate the citizenship of some because they too have crossed some line of association with those in other countries.

Moreover, legislative responses to the decades-long struggle to legislatively regain nationality rights for women intertwined notions of gender inferiority with racial inferiority.  The legislation perpetuated the subordination of a woman’s status to her husband’s status.  Further,  it particularly penalized women who were considered racially inferior and women who married men who were considered racially inferior.

Constitutional Adjudication

Gender Subordination and the Basis for Involuntary Expatriation

Prior to the 1907 Act, women in the United States did not generally lose their citizenship because of marriage, even during the earlier days of the country when coverture was a stronger legal notion.[24]  The general view was that coverture addressed the relationship between husband and wife and not the relationship between female citizens and country.[25]  However, some cases held marriage combined with leaving the country could result in the suspension of citizenship.[26]  In 1830, in Shanks v. Dupont[27] the Supreme Court held that a woman had not lost her citizenship by marriage, but could have her citizenship suspended if she moved to her husband’s country of citizenship and lived there.[28]

Mackenzie argued for a similar interpretation of the 1907 Act.  She asserted that the Act did not apply to her because she was born in California and married her spouse in the United States and lived with him in the U.S.  The court rejected her argument. It found that the language of the 1907 law clearly removed the citizenship of all women who married non-citizens without regard to any other factor.[29]  Thus, the 1907 Act changed what had been the legal norm in the past.[30]  Mere marriage could result in involuntary loss of citizenship.  This was an extraordinary notion.  Marriage itself was the citizenship alienating conduct without any indication of lack of allegiance or the intent to give up citizenship.

The strengthening of gender subordination in the context of  citizenship was even more surprising in 1915 when the Supreme Court decided Ethel Mackenzie’s case because by then the notions of coverture had been somewhat loosened in other areas.[31]  Further, in 1915 the women’s suffrage movement was making headway as increasing numbers of states like California allowed women to vote, thus acknowledging the independent agency of women as citizens[32]

In the unanimous Mackenzie decision the Court acknowledged that there had been “much relaxation” of the principle of the “identity of husband and wife.”  However the court then proceeded to reassert the waning coverture notion as domestic policy and to expand the notion of female subordination into citizenship to justify government power.

The court stated:

The identity of husband and wife is an ancient principle of our jurisprudence….[I]n its retention as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity and give dominance to the husband.  It has purpose, if not necessity, in purely domestic policy; it has greater purpose, and it may be, necessity, in international policy.[33]

This view imposed coverture notions of the subordination of women as justification for government control and denial of the individual right to base line citizenship status.  The issue presented was not about the rights of husbands versus the rights of wives.  Indeed neither Gordon Mackenzie nor any other husband was afforded a right to choose whether his wife remained a citizen.[34] The court’s view of the appropriate subordination of women was a justification for an extraordinary expansion of legislative authority in the area of citizenship in general.

The Right to Citizenship

      Ethel Mackenzie argued what she understood to be the prevailing notion of citizenship, that the legislature could not remove citizenship without the consent of the citizen unless removal of citizenship was punishment for a crime.[35]  She further grounded her claim to citizenship in the Fourteenth Amendment, which clearly stated that all persons born or naturalized in the U.S. were citizens and had the privileges and immunities of citizenship.[36]

Her view had support in the prior American approach to the concept of expatriation.  The British notion was that the subject of a sovereign could not expatriate without the sovereign’s consent.  The United States rejected the notion of perpetual allegiance through an assertion of individual liberty to choose allegiance.[37]  In 1868, the same year as the passage of the Fourteenth Amendment, Congress passed an Act proclaiming that

“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.”[38]

Expatriation was viewed as grounded in the right of individual choice and liberty, as opposed to governmental control and domination.[39]

Ethel Mackenzie argued that the Constitution did not give any authority to Congress to remove citizenship.  It merely gave Congress the authority to grant citizenship by establishing a uniform rule of naturalization by the legislature.[40]  Further, she argued that the Fourteenth Amendment constitutionally protected citizenship and gave no authority to Congress to restrict the effect of birth in the United States as a sufficient and complete right to citizenship.[41]

The Supreme Court rejected these arguments.  First, it found that she had voluntarily expatriated because she had voluntarily entered into marriage, despite her express assertions that she had no intention of giving up her citizenship, and that she continued to want to retain it.[42]  The court agreed that the authority of Congress to impose expatriation against her explicit wishes was not an express power given in the Constitution.  However, the court found that Congressional authority was implied in attributes of sovereignty and the powers of nationality in intercourse with other countries.[43]  In the court’s view, involuntary expatriation of a woman because of her marriage was not arbitrary because her marriage to a non-citizen might bring the United States government into embarrassments and perhaps controversies with other countries.[44]

This reasoning thus set the bar very low for the reasonableness of Congressional action to involuntarily expatriate citizens.  The extreme result of citizenship loss could be based on behavior the legislature considered merely potentially embarrassing or a potential source of controversy with another country.  The concept of voluntary expatriation, grounded in notions of individual liberty, had been turned around into expansive legislative power to strip individuals of citizenship, despite their intent and clearly expressed choice.  Stripping a person of citizenship had severe consequences.  It removed the person’s unqualified right to live in and exit and enter the country and often the right to own property, engage in certain types of labor and vote.   Sometimes the citizen became stateless.[45]

After the sweeping expatriation authority established by the Mackenzie decision, an expanded concept of citizenship loss took hold.  The legislature could prescribe situations in which citizenship would be lost without regard to the intent or choices of the individual.  The 1907 law had included other grounds of expatriation such as living in a foreign state for certain times, taking an oath of allegiance or naturalizing in another state.[46]  Congress passed succeeding laws, specifically in 1940 and 1952, that increased the grounds for involuntary expatriation indicating additional behavior that would result in citizenship loss,[47] including residence in other countries, voting in an election in another country, and participating in institutions of a foreign country.[48]  Congressional authority to set conduct that resulted in involuntary expatriation went unchallenged for over forty years.  It was assumed that the Mackenzie decision had clearly established this authority.[49]  Although as explained below, the broadness of Congressional power in this regard was significantly curtailed by the Supreme Court in the late 1960s, the Mackenzie decision was never explicitly overruled.[50]  Grounded in easily accepted notions about gender, the governmental power to strip citizenship grew, but when this power was curtailed, the gender notions were not clearly rejected.

Starting in 1958, cases argued before the Supreme Court posed serious challenges to Congressional authority to involuntarily expatriate its citizenry.[51]  In Perez v. Brownwell, a native born United States citizen was expatriated because he voted in a Mexican political election.[52]  In a five to four decision the Supreme Court upheld the statute on reasoning similar to the reasoning in Mackenzie.  Justice Frankfurter, for the majority, noted that the power of Congress to enact legislation depriving individuals of their American citizenship was first raised in Mackenzie.[53]  In Perez, the court found that the Congressional power to expatriate for designated conduct was found in the necessary and proper clause of the Constitution.  Involuntary expatriation for voting in a foreign election was found to be a rational means of implementing the government’s power to conduct foreign affairs.[54]

In his dissent for three members of the court Chief Justice Warren attempted to distinguish Mackenzie as not terminating, but suspending, citizenship.  He stated:

The statute that the Court there sustained did not divest Mrs. Mackenzie of her citizenship. It provided that ‘any American woman who marries a foreigner shall take the nationality of her husband.  At the termination of the marital relation,’ the statute continues, ‘she may resume her American citizenship…’ Her citizenship was not taken away; it was held in abeyance.[55]

This, he further explained, was an acknowledged consequence of marriage, stating:

This clause merely expressed the well-understood principle that a wife’s nationality ‘merged’ with that of her husband’s. ….  During coverture the privileges and obligations of a woman’s citizenship gave way to the dominance of her husband’s….[56]

The majority opinion rejected this approach and reaffirmed the broad Congressional power established by the Mackenzie decision stating:

Congress can attach loss of citizenship only as a consequence of conduct engaged in voluntarily….But it would be a mockery of this Court’s decisions to suggest that a person, in order to lose his citizenship, must intend or desire to do so. The Court only a few years ago said of the person held to have lost her citizenship in Mackenzie v. Hare: ‘The woman had not intended to give up her American citizenship.’[57]

In the majority’s view, Mackenzie engaged in conduct to which Congress attached the consequence of denationalization irrespective of, and absolutely contrary to, her intentions and desires, and further, that this congressional action was constitutional.

Apparently, it seemed that neither the majority nor the dissent disapproved of Mackenzie’s loss of citizenship.  For the majority, Congress had broad authority to involuntarily expatriate citizens based on congressionally designated conduct.  For the dissent, the suspension of a married woman’s citizenship was explainable by the notion of a woman’s citizenship merely giving way to the dominance of her husband while she was married.  Either approach reflected a view of the citizenship of women as having diminished import.  The majority’s opinion, however, viewed the easily accepted gender norms as an acceptable basis for diminishing the import of citizenship for others as well.

After a series of other cases,[58] the Supreme Court returned to the issue of Congressional authority to involuntarily expatriate citizens in Afroyim v. Rusk,[59] this time with a slightly different court composition and a different five to four decision result.[60]  Afroyim, like Perez, had lost citizenship through voting in a foreign political election.  The dissent for four justices relied on Mackenzie for the proposition that Congress had the authority to involuntarily expatriate for certain conduct stating:

The Court held in Mackenzie that marriage between an American citizen and an alien, unaccompanied by any intention of the citizen to renounce her citizenship, nonetheless permitted Congress to withdraw her nationality. It is immaterial for these purposes that Mrs. Mackenzie’s citizenship might, under the statute there, have been restored upon termination of the marital relationship; she did not consent to the loss, even temporarily, of her citizenship.[61]

Contrary to the dissent, the majority opinion in Afroyim made no mention of Mackenzie.  However, it explicitly overruled Perez.  Justice Black writing for the majority stated that Congress lacked the power to deprive persons of citizenship in the absence of a specific grant of power, and further, that the Fourteenth Amendment established a constitutional rule that protected citizenship.  In Justice Black’s view, U.S. citizenship could not be lost unless a citizen voluntarily relinquished it.[62]  His opinion asserted that a person has a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.[63]

The opinion summarized the holding:

We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.[64]

However, gender was not mentioned.  Gender was not listed along with creed, color and race as a prohibited basis for citizenship loss.

In a subsequent case, the Supreme Court addressed the process for determining “voluntary” relinquishment and therefore its meaning.  In Vance v. Terrazas[65] the court held that the intent to expatriate could be found in a fair inference from conduct. An assertion of intent by a citizen did not resolve the issue.  Circumstantial evidence of conduct surrounding the designated expatriating act could establish the requisite intent to voluntarily expatriate.  Further, the court held that Congress had the authority to establish a mere preponderance of the evidence standard of proof to the expatriation determination.[66]

The State Department took the position that Mr. Terrazas was expatriated by his application for a certificate of Mexican nationality, which involved swearing allegiance to Mexico and renouncing his rights under any other nationality, including the U.S.  Terrazas had acquired dual nationality at birth since he was born in the United States and was also the son of a Mexican citizen.  The court ultimately held that the following process authorized by Congressional act was constitutional.  A statute could designate expatriating acts, here naturalizing in and taking an oath of allegiance to another country. The government first had to prove the expatriating act by a preponderance of the evidence.  The court held it was constitutional to presume the act to be voluntary, meaning not under duress or coercion.  This thereby shifted the burden to the citizen to prove the act was not voluntary.  If the citizen could not prove the act was involuntary, then the government had to satisfy its burden to prove that the act was performed with the necessary intent to relinquish citizenship.[67]

Terrazas was eventually found to have had the intent to voluntarily expatriate[68] by lower courts, despite his assertion of citizenship all the way to the U.S. Supreme Court.  After remand from the Supreme Court, the district court, affirmed by the circuit, found that a preponderance of the evidence supported the conclusion that Terrazas intended to relinquish his citizenship when he voluntarily committed the expatriating act.[69]  Thus, while Afroyim was reaffirmed to the extent that the Supreme Court held that intent to relinquish citizenship was required before expatriation, that concept was reigned in by a proof process that allowed citizenship to be taken away by a preponderance of circumstantial evidence.

 The Failure to Reject Subordinating Gender Norms

Still, the Afroyim decision was a major watershed in the constitutional protection of citizenship.  While the dissent in Afroyim still relied on Mackenzie, the majority never addressed the case.  Thus, the Supreme Court never explicitly rejected the concept of gender subordination that underlay the concept of constitutional governmental power to involuntarily expatriate citizens.[70]  This leaves some lingering doubt about whether the court was accepting the view that Mackenzie’s citizenship had been merely suspended through an acceptable norm of a husband’s dominance of a wife, as Justice Warren had suggested in his Perez dissent, and therefore, not a violation of the Constitution.

Further, the failure to declare the 1907 Act unconstitutional left the status of those who been expatriated under it uncertain.  As explained in the next section, by the 1960s there had been a series of statutes that provided various processes for different groups of women who had been expatriated to regain their citizenship.[71]  However, these statutory measures had additional qualifications and never automatically restored citizenship.  Moreover, as explained in more detail below, the immigration service continued to view expatriation through marriage under the 1907 Act as a constitutionally valid basis for removal of citizenship if it could be proven that the citizen wife married with the intent of giving up her citizenship.[72]

Although the Supreme Court has not overturned Mackenzie, the First Circuit and ironically, the Internal Revenue Service, have assumed the unconstitutionality of the 1907 Act.  In 1965, the First Circuit addressed the issue of the constitutionality of the 1907 Act in the context of derivative heritage citizenship.[73]  Angela Rocha claimed she was a U.S. citizen since her mother had been born in the United States.  In 1965, the court rejected her claim because it held that her mother had been expatriated under the 1907 act by her marriage to a Portuguese citizen in 1916 before Ms Rocha was born.  Further, in the court’s view, her mother’s expatriation was constitutional under the Mackenzie decision.[74]  However, after the Afroyim decision, the court withdrew this decision and ordered that Ms. Rocha be declared a citizen.  The court briefly stated that Afroyim refutes the rationale of Mackenzie and that under the reasoning of Afroyim, the 1907 Act would be unconstitutional.[75]

The United States Immigration and Naturalization Service, however, did not fully accept the premises of the Rocha decision.[76]  The Service took the position that expatriation by marriage under 1907 act remains a constitutional basis for citizenship loss despite the decision in Afroyim and notwithstanding the First Circuit’s decision in Rocha.  In the Service’s view:

[O]ne must ascertain the motivations and intentions of the citizen woman at the time she married the alien. It is conceivable that, to promote the most complete unity of husband and wife, and assure the closest possible marital union between the parties, a United States citizen woman who marries an alien may wish and intend to relinquish her citizenship and transfer her allegiance from the United States to the foreign state of which her husband is a national…..[77]In the agency’s view the notion of the unity of husband and wife persisted.

However, the Service’s interpretation does acknowledge the difficulties of proof :

[T]he citizen woman’s affirmative testimony that she did not intend to transfer her allegiance from the United States to the foreign state of which her husband was a national, or otherwise abandon her allegiance to a citizenship of the United States, will make it exceedingly difficult to sustain a finding of expatriation upon the basis of evidence from other sources.[78]

The Internal Revenue Service took a different approach.  An Internal Revenue Service ruling in 1975 addressed the tax liability of women who had been expatriated under the 1907 law.  The situation raised was that of a U.S. born woman who had been expatriated under the 1907 law because she had married a British citizen.  The issue presented was whether a woman in such a situation would be subject to U.S. gift and estate taxes and taxes on her income in and out of the United States.  The ruling determined that a woman expatriated under the 1907 law could be taxed as a U.S. Citizen.  The IRS merely asserted that, under current law, the 1907 law would be unconstitutional.  Therefore, in the IRS’s view, women expatriated under the 1907 law were and had always been United States citizens and could be taxed as citizens.[79]  However, this ruling stated it would not apply to income or estates until 1976.[80]

Thus, the Supreme Court eventually agreed with Ethel Mackenzie’s assertions that the Constitution protected citizenship and that a person could only be expatriated if she had the intent to relinquish her citizenship.  However, the Court did not appear to fully agree with her version of voluntary consent grounded in notions of individual choice and liberty.  A citizen’s clear assertion of intent to remain a citizen is not sufficient.  In the Supreme Court’s view a citizen’s assertions of intent can be undermined by circumstantial evidence showing that at the time of the purported expatriating conduct the citizen had the intent to give up her U.S. citizenship.  Additionally, the Supreme Court never fully rejected the gender norms underlying the 1907 Act since Mackenzie was never overruled.  Further, in the immigration service’s view, the Congressional choice to designate a woman’s marriage to a non-citizen as an expatriating act is constitutional if the government can demonstrate that at the time she married, she had the intent of giving up her citizenship through marriage. Ironically, the IRS, however, seems to have disagreed for purposes of subjecting those who had been involuntarily expatriated to tax liability as U.S. citizens.

Legislative changes

Like the Supreme Court, Congress never fully reversed the subordinating gender norms underlying the involuntary expatriation of wives.  There were numerous legislative changes, but none firmly and fully reversed the expatriation of wives against their wills. The 1907 law imposing involuntary expatriation on wives was modified legislatively.  However the modifications were done in a piece meal fashion and without retroactive effect.  It was not until 1931 that Congress declared that women citizens shall not cease to be citizens by reason of marriage.[81]  Moreover, this provision only applied to the future.   Wives who had been involuntarily expatriated faced numerous hurdles to regaining citizenship

Early attempts to change the law

The 1907 law had taken women’s rights advocates by surprise.[82]  The responses to attempts to change the law through legislation revealed that women’s transnational marriages provoked nationalistic and moralistic responses.[83]  Part of the resistance was grounded in concerns about naturalized citizens’ continuing connections with the country of their original nationality.[84]  The 1907 law had also provided for the denaturalization of naturalized citizens who lived in their native countries for two years.[85]  However, the antagonism to women who married non-citizens went beyond concerns about a person holding more than one citizenship or having other continuing connections with countries of origin.  Some women who were expatriated were left stateless, because not all other countries afforded citizenship to women who married their nationals.[86]  Further, gender norms trumped concerns about foreign associations since the foreign-born wives of U.S. citizens became U.S. citizens through marriage.  The loyalty of women who married non-citizens was called into question, but not the loyalty of male citizens who married foreign wives. [87]

The attitudes toward women who married foreign husbands were particularly revealed in the House Hearings, Relative to Citizenship of American Women Married to Foreigners.[88]  These hearings were held after Jeanette Rankin, a representative from Montana, introduced a bill in 1917 to amend the wife expatriation section of the 1907 bill.[89]  Committee members evidenced anger at American women who married foreign men and showed little compassion for the plight of women who were expatriated.[90]  National loyalty and personal loyalty were viewed as intertwined.  In one committee member’s view, the plight of the expatriated woman was “a good lesson to our American girls to marry American boys.”[91]

The fact that the United States had been involved in the First World War highlighted concerns about national loyalty.  As one commentator stated;

[W]e must recognize that this country is likely to forfeit some of an American-born woman’s original loyalty after her foreign marriage….A woman torn by double allegiance and with her affections pledged to a man in the enemy camp may easily be a very bad citizen indeed.[92]

However, as Ellen Spencer Mussey, the dean of the Washington College of Law, testified before the House Committee, a U.S. born woman who had married a citizen of one of the Central powers before the war was considered an alien enemy, even if she resided in the United States, while a German born woman married to an American citizen was not.[93]

The Cable Act and Amendments

The Mackenzie decision angered and energized suffragists.   The repeal of the Expatriation Act was high on suffragists’ agendas particularly after the Nineteenth Amendment to the U.S. Constitution assured women the right to vote in 1920.[94]  In 1922 Congress passed the Married Women’s Independent Citizenship Act, also known as the Cable Act, named after Representative Cable, who was an author of the bill.[95]  The Act, however, did not fully provide married women with independent citizenship.  First, the statute did not restore citizenship to those wives who had lost it, and second, the statute did not protect all wives from losing their citizenship in the future.

Further, as Professor Volpp[96] and other scholars have explained in detail[97], the Cable Act and a series of amendments intertwined notions of racial and ethnic inferiority with gender inferiority.  Views about gender and race supported the notion that some were not worthy of citizenship.  Those most disadvantaged were “non white” women and women, “white” or not, who married non-white non-citizen men.  In fact, for some the Cable Act made their situations worse than the 1907 law.[98]

The Intertwining of Gender, Race, Ethnicity in Citizenship

An understanding of the impact of the Cable Act and subsequent statutes requires an understanding of the “ineligible for citizenship” concept based in notions of ethnic and racial inferiority.   The first naturalization law in 1790 provided for naturalization for “free white aliens.”[99]  This led to years of mind-bending contention about who was “white.”[100]  In 1857, the Supreme Court’s decision in the Dred Scott case rejected the prevailing notion of citizenship through birth on U.S. soil by holding that free blacks born in the U.S. were not citizens.[101]  The post civil war Fourteenth Amendment in 1868 declared that all persons born or naturalized in the United States were citizens.  Thereafter, an 1870 statute allowed naturalization for those of African descent.[102]  However, the Chinese exclusion laws in 1882 specifically barred the naturalization of Chinese.[103]  Determinations of lack of whiteness also barred persons of various ethnicities from naturalization.  For example in the 1920’s the Supreme Court found that Japanese[104] were not Caucasian and therefore not white, Hindus[105] while Caucasian were not culturally white, and Filipinos[106] were not white persons, and thus all were ineligible for naturalization.  Being ineligible for naturalization meant being ineligible for citizenship.

In 1898, the question arose whether children born in the United States were U.S. citizens at birth, if their parents were ineligible for citizenship.  The Supreme Court determined in Wong Kim Ark[107] that the Fourteenth Amendment provision that all persons born in the U.S. were citizens protected the citizenship of those born in the U.S. despite their parents’ status.   Wong Kim Ark was a citizen through his birth on U.S. soil despite the fact that his parents were ineligible for naturalization because they were Chinese.[108]

Race based exclusions from naturalization were not totally eliminated until 1952,[109] although there were some earlier changes.  For example, a 1940 statute extended eligibility to races indigenous to the Western Hemisphere[110] and the Chinese were declared eligible for naturalization in 1943.[111]  The law now specifies that the right to naturalization cannot be denied or abridged because of race or gender[112]  However at the time of the Cable Act and many decades after, “ineligible for citizenship” or “ineligible to naturalize” were code phrases for not being sufficiently “white.”

The Provisions of the Cable Act and its Legislative Successors

The Cable act addressed two important issues related to the loss of wives’ citizenship.  Could wives in the future be expatriated through marriage?  What happened to the citizenship status of the women who had lost their citizenship under the 1907 law?  It also addressed the issue of acquisition of citizenship through marriage as more detailed below.[113]

The Cable Act provided that, generally, in the future a woman would not cease to be a citizen of the United States by reason of her marriage.  However, there were significant exceptions.  First, the citizenship of any woman who married a man “ineligible” for citizenship ceased.[114]  Second, the citizenship of a woman ceased if she married a non-citizen and lived in his country of citizenship for two years or lived anywhere outside of the U.S. for five years.[115]  Thus, while diminished, the premises of coverture continued since many women’s citizenship status was still controlled by the status of their husbands.

In 1930, the Act was amended to eliminate the cessation of wives’ citizenship based in foreign residence.  The 1931 amendment eliminated the cessation of citizenship for marriage to a man ineligible for citizenship.  The statute then read, “A woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after this section…takes effect….”[116]  Thus from 1931 onward marriage to a non-citizen was not designated as an expatriating act.[117]

However, none of these statutes or succeeding ones fully rejected marriage-based expatriation and restored citizenship to those who lost it through marriage to a non-citizen.   The Cable Act did not restore citizenship to all those involuntarily expatriated under the 1907 Act.  It merely allowed some, but not all, women who had been expatriated to petition for naturalization.[118]  Naturalization, however, required that the wife had to be eligible for citizenship. Thus, for example, a woman of Chinese heritage could not regain her citizenship because she could not naturalize.  Moreover, women who had lost their citizenship through marriage could only naturalize to regain citizenship if they had married men eligible for citizenship.  Thus, for example, a “white” woman who married an Asian man could not regain her citizenship.

Therefore, for some women, the Cable Act was worse than the 1907 Act.[119]  Under the 1907 law women who lost their citizenship through marriage could regain it if the marriage ceased through death or divorce.[120]  Under the Cable Act this provision was repealed. [121]  A woman who married a man ineligible for citizenship lost her citizenship and if she resided outside the United States her citizenship terminated.  If her marriage ended she could only request naturalization for which she had to be “racially qualified.”  Therefore some women, predominately Asian women, could not regain their citizenship since they were racially barred from naturalization.

The cases of Ng Fung Sing and Mary Das demonstrate the integration of gender and race disqualifications that underlay the law.  Ng Fung Sing was born in the United States and was therefore a United States Citizen at birth.  She was of Chinese heritage.  She married a Chinese man in 1920 and was widowed in 1924.  She left China to return to the United States.  She had been expatriated by the 1907 Act through her marriage to a non-citizen.  Under the 1907 Act she would have been able to regain her citizenship when widowed.  However, under the Cable Act she could not regain her citizenship through naturalization because as a Chinese person she was ineligible to naturalize.  Therefore, she could not be a citizen and was an alien.  As an alien of Chinese ethnicity, she was an alien excludable from the United States.  She was not allowed to enter the United States even though she was a native born citizen.[122]

Mary Das was a native born “white” U.S. citizen.  In 1914 she married a naturalized citizen who was a native of India. At the time he naturalized, Indians were considered Caucasian, and therefore “white.”  However, in 1923, the Supreme Court held that Indians were not “white.”[123]  Mr. Das was thereafter considered never to have been a lawful citizen.  Therefore, Mary Das was not a citizen, because under the 1907 law she lost her citizenship through marriage to a non-citizen.  Moreover, under the Cable act she could not regain her citizenship through naturalization because she was married to a man ineligible for citizenship.[124]

The laws regarding restoration of citizenship to women who lost their citizenship through marriage to non-citizens went through several amendments over the years and a number of women regained their citizenship through them.  However, none of the statutes simply restored citizenship to those who lost it.  The statutes provided qualifications and a required process.[125]

Currently there are two statutory processes through which women who lost their citizenship through marriage can regain it.  First, native-born women who lost citizenship through marriage, and whose marriage has terminated can resume citizenship upon taking an oath of allegiance.[126]     Other women, who lost citizenship through marriage to an alien prior 1922, or by marriage to an alien racially ineligible to citizenship between1922 and 1931, can be naturalized under the following conditions:  She acquired no other nationality other than by marriage;  She establishes good moral character and attachment to the United States;  She is a lawful permanent resident of the United States or resided continuously in the United States since her marriage.[127] Thus, women who lost their citizenship through marriage still have not been deemed citizens and face hurdles to restore their citizenship.

The Legacies of the Expatriation of Women Through Marriage

Under current law marriage is not an expatriating act, and citizenship cannot be removed based on notions about the subordination of women.  But there are still legacies of the failure of constitutional and legislative protection against the involuntary expatriation of wives.  These include the issue of the constitutionality of marriage as an expatriating act, the continuation of Congressional power to set expatriating acts, and the continuing and proposed punishment for transnational connections.

Concern About the Constitutionality of Marriage as an Expatriating Act

The first legacy of the involuntary expatriation of wives comes from the failure of the Supreme Court and Congress to explicitly reverse wives’ loss of citizenship.    The premises that penalized women for marrying “foreigners” were never explicitly rejected.  Therefore questions still linger.  Would Congress be able to constitutionally designate marriage as grounds for expatriation if the statute included that the marriage must have been entered into with the intent to give up U.S. citizenship?  If Congress did so could it treat women differently than men?  The immigration authorities’ statement regarding the lingering validity of the 1907 Act under Mackenzie would allow the designation of marriage as an expatriating act.[128]

The Supreme Court’s cases on citizenship loss accepted the notion that Congress can legitimately articulate acts that give rise to the issue of expatriation if they are done with the intent to relinquish citizenship.  However, since marriage has now been recognized as a fundamental right,[129] it would be difficult to assert that marriage could reasonably be a basis for citizenship loss, even with the proviso that the act needed to be accompanied by the intent to terminate citizenship.  Further, gender discrimination has been held to be unconstitutional in several cases using an intermediate scrutiny of legislative action.[130]   Therefore, it does not appear that Congress could constitutionally make marriage an expatriating act and/or treat men and women differently in this regard, even if Congress would politically choose such a course.  However, it should be noted that the passage of the 1907 act was a shock to many, including Ethel Mackenzie.  They could not believe Congress could constitutionally involuntarily expatriate wives or would choose to do so.

Congressional power to set expatriating acts

The second legacy is the Supreme Court’s determination that Congress has the authority to legislate the loss of citizenship.  Ethel Mackenzie argued that there is no authority in the Constitution to afford Congress the power to legislate on citizenship loss, especially after the passage of the Fourteenth Amendment.   The Supreme Court rejected this argument, but later restricted the Congressional authority to impose citizenship loss on citizens born or naturalized in the United States by requiring that the government prove a citizen’s intent to give up citizenship.[131]  However, the court did not restrict Congress from designating behavior that would constitute expatriating acts, and allowing the government to use circumstantial evidence to demonstrate that the act was engaged in with the intent of relinquishing citizenship.

The current statute continues to designate acts that can put a person in jeopardy of citizenship loss.  The extreme consequence of citizenship loss can be imposed through a process that does not have the protections of a criminal process and is not limited to designating behavior that would warrant the punishment of removal of citizenship.  Such extraordinary Congressional authority was initially grounded in notions of female subordination, not in any thoughtful analysis of the fundamental import of citizenship in a democracy.

The current nationality statute[132] states that U.S. citizens are subject to loss of citizenship if they perform certain specified acts voluntarily and with the intention to relinquish U.S. citizenship. Congress adopted the intent concept in 1986.  The statute now specifies that the acts of expatriation listed in the statute would terminate citizenship only if voluntarily performed “with the intention of relinquishing United States nationality.”[133]

These acts include: obtaining naturalization in a foreign state after obtaining the age of eighteen,[134] taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions[135] entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state,[136] accepting employment with a foreign government if (a) one has the nationality of that foreign state,[137] or (b) an oath or declaration of allegiance is required in accepting the position,[138] formally renouncing U.S. citizenship before a U.S. diplomatic or consular officer outside the United States,[139] formally renouncing U.S. citizenship within the U.S. (but only under strict, narrow statutory conditions),[140] and conviction for an act of treason.[141]

The Department of State is responsible for determining the citizenship status of a person located outside the United States or in connection with the application for a U.S. passport while in the United States.[142]  In 1990, the State Department adopted a policy that, in most cases, pursues loss-of-citizenship proceedings only when an individual affirmatively states that he or she intends to relinquish U.S. citizenship. [143]

The Department of State employs a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain United States citizenship when they engage in certain of the statutory acts.[144]  These include obtaining naturalization in a foreign state, subscribing to a declaration of allegiance to a foreign state, serving in the armed forces of a foreign state not engaged in hostilities with the United States,[145] and accepting non-policy level employment with a foreign government.[146]  A citizen who engages in any of these acts and intends to retain U.S. citizenship is not required to submit a prior a statement or evidence of her intent to retain U.S. citizenship, since such intent will be presumed. [147]  However, the State Department has stated that dual nationality may affect United States citizenship status, and that problems can be caused by dual nationality such as obligations on citizens of other countries that may place them in conflict with United States laws.[148]

On certain occasions when it comes to the attention of a U.S. consular officer that a U.S. citizen has performed these potentially expatriating acts, the consular officer will ask the applicant if there was intent to relinquish U.S. citizenship when performing the act. The citizen may answer “no”, at which point the consular officer will certify that it was not the person’s intent to relinquish U.S. citizenship and the citizen will have retained her citizenship.[149]

However, the presumption that a person intends to retain U.S. citizenship is not applicable in certain circumstances.  These include when the individual takes a policy level position in a foreign state, serves in the armed forces of a foreign state engaged in hostilities with the United States,[150] is convicted of treason,[151] or performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship.[152]

Therefore, while the Congressional authority to impose the loss of citizenship has been curtailed by Supreme Court decisions, the Congressional power authorized by the Supreme Court in Mackenzie for the legislature to impose the loss of citizenship still exists.  The current practical impact of the loss of citizenship statute has been eased by administrative presumptions that certain acts, without more, are not accompanied by intent to relinquish U.S. citizenship.  Yet, still, those who engage in the potentially expatriating acts have the potential to lose their U.S. citizenship.  Further, the administrative interpretation is not formal and is thus subject to administrative change.  Moreover, there is some legislative opposition to the current State Department’s approach to expatriation. A bill was introduced in 2005 that sought to force the State Department to abolish its policy on loss of citizenship and reinstate its pre-1990 policy “of viewing dual/multiple citizenship as problematic and as something to be discouraged, not encouraged.”[153]

Continuing and Potential Punishment for Transnational Connections

 A further legacy lies in persisting controversies grounded in the concerns about association with the “foreign” that also underlay the legislative response to women who married foreign men.  A justification for the expatriation of wives was that they could not have transnational associations and still be good loyal American citizens.  Current controversies about dual nationality and participation in the life of other countries address a similar question.[154]  In a globalizing world[155] can U.S. citizens who have transnational connections, including active participation in the political life in other countries, still be good Americans?[156]  A good sampling of opposite answers to this question was presented in testimony before the House Immigration Subcommittee on September 29, 2005.[157]

John Fonte, from the Hudson Institute, asserted in his oral testimony and prepared statement that dual citizenship is incompatible with the moral and philosophical basis of American constitutional democracy for two reasons.[158] First, dual allegiance challenges a core foundation as a civic nation by promoting a racial and ethnic basis for allegiance and by subverting the assimilation of immigrants.[159]  In his view national loyalty is essential to America because the United States is built on political loyalty, not heritage or religion.  Second, he asserted that dual allegiance violates a vital principle of American democracy: equality of citizenship.[160]  If some citizens are dual and some are not, the dual nationals are more equal than other citizens since they have additional advantages such as voting in two nations. Further, dual nationality allows other countries like Mexico to have undue influence on American policies.[161]

He then criticized the Afroyim decision, but pointed out a position taken by Chief Justice Earl Warren in his dissent in Perez, the case overruled in Afroyim.  Justice Warren stated:

If the Government determines that certain conduct by United States citizens should be prohibited because of injurious consequences to the conduct of foreign affairs or to some other legitimate governmental interest, it may within the limits of the Constitution proscribe such activity and assess appropriate punishment.[162]

Borrowing from this idea, Mr. Fonte then proposed that Congress pass a law thatprovides that the following acts by U.S. citizens be felonies subject to sanctions of a $10,000 fine and one year in jail for each act:  voting in an election of the foreign state in which the person were previously a subject or citizen, running for elective office of the foreign state in which the person was previously a subject or citizen, serving in any government body of the foreign state in which the person was previously a subject or citizen, using the passport of the foreign state in which the person was previously a subject or citizen,  taking an oath of allegiance to the foreign state in which the person was previously a subject or citizen,  serving in the armed forces of the foreign state in which the person was previously a subject or citizen.[163]

Professor Peter Spiro presented a different view in his testimony and prepared statement.[164]  He asserted that dual nationality poses affirmative benefits both for individuals and the nation. From a national perspective, dual citizenship presents a means for extending American constitutional values. Naturalizing aliens absorb American democratic mentalities.[165]  If they maintain dual citizenship, they will be able to put those democratic tendencies to work in their country of origin.  Further, acceptance of dual nationality promotes individual rights.  Restrictions on dual nationality comprise restrictions on identity and association.[166]

Professor Spiro also stated that prior concerns about dual nationality have no place in a modern world.  They were grounded in concerns about a sovereign’s total control over its subjects that have no place in modern democracies.  Further, dual citizenship does not dilute full civic engagement.  Individuals have and effectively manage multiple memberships in civic, religious and political organizations.  The communications revolution has made it easier to remain informed participants in multiple polities.  It is also not reasonable to assume that dual nationals will be the pawns of other nations. Citizens are not a docile herd.  Emigrants tend not to accept the command of homeland rulers. Moreover, there has already been a quiet rise in dual nationality and this has attracted little controversy. [167]

The issue of the role of U.S. citizens who have transnational associations has recently been raised in the context of the earthquake tragedy in Haiti.  Former President Bill Clinton, the United Nations Special Envoy to Haiti, urged the participation of U.S. citizens of Haitian heritage in the revitalization of Haiti.  He stated:

[T]he Haitian Diaspora community is committed to helping, and they are more welcome than ever before.  The parliament just approved dual citizenship for the Haitian Diaspora….  We have got Haitian-Americans who are dying to go down there and invest and build a future.”[168]

The New York Times reported that many Haitians living in the United States were encouraged to participate in the rebuilding of Haiti by a constitutional amendment.  The amendment would have given them the right to vote and run for office in Haiti.[169]

Yet, the question arises whether those who do take up the task of rebuilding Haiti will jeopardize their American citizenship.  Accepting foreign government employment especially at a policy level, naturalizing, serving in the army or taking an allegiance oath to another country are still potential expatriating acts.  Further, if Mr. Fonte had his way, a U.S. citizen who voted or ran for office or served as a government official in another country would be committing a felony.  Some, like former President Clinton, promote active transnational connections.  For others, however, these connections continue to be indicia of disloyalty.  Will those Haitian Americans who actively participate in Haiti be punished for their transnational associations, as were the American citizen wives who married non-citizens?

 Acquisition of Citizenship by Wives Through Marriage

Legislative Basis and Changes

Like the loss of wives’ citizenship though marriage, wives’ acquisition of citizenship through marriage was based in the concepts of gender subordination.  Unlike some other constitutions,[170] the U.S. Constitution does not address the issue of citizenship acquisition through marriage.  Citizenship through marriage in the U.S. is acquired through legislation, and therefore, what the legislature can give, the legislature can constitutionally remove.  From 1855 to 1922, by statute, non-citizen women who were eligible for naturalization acquired U.S. citizenship through marriage to a U.S. citizen.

In 1855, Congress passed a statute that provided that women eligible for naturalization who married U.S. citizens would acquire U.S citizenship through the marriage.[171]  The wives were deemed to be U.S. citizens and treated as such.  They did not have to consent to become citizens.  Candice Bredbenner has labeled this “conscripted allegiance.”[172]  Prior to the passage of the 1855 law, women had been able to maintain their premarital citizenship.  The 1855 law denied foreign-born women their independent civil and political identities.[173]  The wives had no say in it.  It was a matter of state policy.  One federal agent explained as follows:

The United States statute stands upon the ground of public policy, not on the ground of the wife’s consent…. She may object to this naturalization and protest ever so formally that she will not become an American citizen…it makes no difference.  The law, founded on a wise public policy, requires her nationality to be the same as her husband’s, and she becomes by operation of law an American citizen.[174]

However, as a practical matter, the law advantaged many women, their spouses and their families.  As the United States moved to imposing restrictions on immigration, the practical advantage of being a citizen, rather that an alien seeking entry, grew.[175]  Wives who were citizens were not subjected to medical, educational, and geographic exclusions applied to alien women. For example, Thalkla Nicola was diagnosed with trachoma, a chronic eye disease, and refused admission by immigration authorities in 1911.  However, a court determined that since she was married to a United States citizen and therefore had citizenship, she was not subject to exclusion based on her medical condition.[176]  For many foreign-born women, the law imposing citizenship on married women was a means of access into the United States and a vehicle for family reunification.[177]  The conveyance of citizenship also protected wives from deportation and statelessness and afforded a means to inherit property in the United States.[178]

While this law practically benefited many foreign wives, its passage was not designed to promote their interests.  Rather, it’s objective was to promote the interests of their husbands and the state.  A congressional sponsor explained that by the act of marriage the political character of the wife should conform to the political character of the husband.  In his view women had no political rights to infringe, so the new law merely assisted a husband.[179]  While American women who married “foreigners” were tainted with disloyalty, a similar taint did not attach to American men with “foreign” wives.  Representative Raker explained that “under tutelage of her kind American citizen husband” his wife became “an American and patriot at heart.”[180]

While the law made it easier for families to be together, the objective was to honor a man’s right to his family as a component of male power and privilege.  Nancy Cott noted, “passed with no ceremony and little debate, the 1855 law took a big step, in effect raising the doctrine of coverture to the level of national identity.”[181]

However, individual male privilege did not overcome concerns about race and ethnicity.  There were race based limitations imposed even on an American citizen male’s prerogatives.  The American citizen’s wife had to be eligible to be naturalized, and as detailed above, that was code for “white.”  Therefore, Asian wives and others considered not “white” could not become citizens even if married to U.S. citizens.[182] (Blacks were included in 1870 when those of African descent were allowed to naturalize.)

In 1922, the concept of automatic citizenship for the wives of citizens got caught in the push to address the involuntary expatriation of citizen women.  The assertion of independent citizenship for women underlay the attempts to rid the law of coverture based notions.[183]  The Cable Act eliminated the automatic citizenship for non-citizen wives of U.S. citizens.[184]  However, this only diminished, but did not eliminate gender notions in citizenship.

The underlying concerns about subordination based on gender pushed advocates to change the citizenship laws that were based on who women married, rather than on their  choice.  However, as choice was given to some women citizens, it was removed from women non-citizens.  There was no consideration to removing gender discrimination by affording citizenship to all spouses, and thereby promoting the developing notions of the constitutional right to family, marriage and child rearing.  In 1923[185] and 1925[186] the Supreme Court had begun the recognition of personal family matters as fundamental rights under the due process clause of the Fourteenth Amendment by recognizing a fundamental right of parents to make decisions about their children.[187]  However the court did not explicitly recognize the right to marry[188] and the right to keep a family together[189] until 1967 and 1977.[190]  Promotion of a right to family unity for both wives and husbands was not the prevailing objective in the approach taken to citizenship in the context of marriage.  Perceptions of gender subordination and racial inferiority were the prevailing notions.

Gender and racial norms still continued in the pathway to citizenship.  While the Cable Act removed automatic citizenship for wives, it also provided a streamlined naturalization process for the wives, but not the husbands, of U.S. citizens.[191]  The Cable Act further declared that the right to become a naturalized citizen would not be denied to a woman because of her sex or because she is a married women.[192]  Previously, it was generally held that a woman married to a noncitizen could not be naturalized as a U.S. citizen on her own petition.[193]

However, under the Cable Act, a woman still had to be eligible for naturalization, meaning sufficiently “white.”  It further stated that a woman could not be naturalized during her marriage if her husband was not eligible for citizenship.[194]  Therefore a woman could have been born sufficiently “white,” but she lost that privileged socially constructed status by marrying someone who was not “white” enough.  Notions of coverture requiring a wife’s status to follow her husband’s were thus intertwined with notions of racial inferiority to bar citizenship acquisition through naturalization.

Further, access to naturalization was controlled by access to immigration.  To be naturalized a person has to be admitted into the country, continue in a status that supports naturalization, and meet any set naturalization criteria.[195]  Spouse-based immigration status incorporated both the gendered notions of coverture and concepts of racial exclusion.[196]  The historical gender and racial-based restrictions on spouse-based immigration have been detailed elsewhere.[197]  The gendered and racially-based restrictions on citizenship access discussed here were in addition to restrictions on immigration based in gender and race.

The Legacy of Wives’ Acquisition of Citizenship Through Marriage

 Spouses of U.S. citizens no longer acquire citizenship through marriage and they do not have a constitutional right to do so.  The elimination of citizenship through marriage was grounded in the objective of removing gender subordination and establishing independent citizenship for women.  Ironically, this resulted in practical harm to women seeking to become U.S. citizens and to achieve family reunification.  Further, the spouse-based immigration system that followed included aspects of the coverture-like spousal subordination notions.[198]

The detriments of loss of derivative citizenship through marriage remain today.  There is a lay assumption that marriage to a U.S. citizen forms the basis for a relatively easy pathway to U.S. citizenship.  However, the road to citizenship for those married to U.S. citizens is often complicated, long, and filled with pitfalls. There are many non-citizen spouses who, today, would prefer citizenship upon marriage to a citizen, rather than the current arduous journey of becoming a citizen.

The spouse-based citizenship process particularly affects wives.  Statistically, spouse-based immigration is a significant component of immigration into the United States.  Overall, spouses of United States citizens comprised about twenty five percent of all immigrants legally admitted to the United States each year during the last quarter of the twentieth century.[199]  Further, women currently make up the majority of immigrating spouses.[200]

To become a U.S. citizen a person must first become a legal permanent resident.  There are numerous barriers to becoming and remaining a legal permanent resident through marriage to a U.S. citizen as detailed below.  If the spouse becomes a legal permanent resident she then has to wait three years before she can apply for naturalization and must meet the all the naturalization criteria.[201]

The citizen spouse controls the ability of the non-citizen spouse to immigrate and become a legal resident.  The general process for becoming a spouse-based permanent resident requires that the citizen spouse file a petition on behalf of the non-citizen spouse.[202]  The power to petition is the power to control immigration status.  The process for a citizen’s wife to become a legal permanent resident begins with the citizen husband.  The petitioning process puts coverture like control over the non-citizen spouse’s immigration status into her American citizen spouse’s hands.  Unless she meets an exemption based in spouse or child abuse,[203] she cannot petition for her status on her own.  Therefore, generally, the wives of U.S. citizens cannot become permanent residents unless their husbands decide to allow it and take the initiative to pursue it.[204]

Immigration authorities then determine whether the requisite spousal relationship exists.  The immigration authorities review the validity of the marriage. The immigration law as interpreted by the executive and judiciary has a particular view of who is a spouse.  The marriage must be legally valid, and not against public policy, and not entered into for the sole purpose of obtaining immigration status.

To determine whether the marriage is legally valid, the Bureau of Citizenship and Immigration Services (BCIS) will assess whether the marriage was valid in the place it was performed.  Certain marriages, even if legal in the place performed, are not recognized for “public policy” reasons.  Incestuous, polygamous and same sex marriages[205] are generally not recognized.[206]  Proxy marriages are barred by statute unless the marriage has been consummated.[207]  Even if a marriage is legal and not against public policy, it is not valid for immigration purposes if it was entered into solely for the purpose of obtaining immigration status.  The burden of proof is on the petitioner to demonstrate that the principal purpose of the marriage was to make a life together, that the marriage was “in good faith.”[208]

A full analysis of the complications of determining the validity of a marriage is beyond this article.  However one story gives illustration to the pitfalls of marriage validity that stand in the way of citizenship for wives.  Hota Ferschke was a Japanese national engaged to a U.S. marine stationed in Japan named Michael Ferschke.  Michael was a U.S. citizen.  Before they could marry, Michael was sent to Iraq.  While he was in Iraq, Hota discovered she was pregnant.  Michel arranged a proxy marriage with Hota in Japan, and he, in Iraq.  However, immigration authorities did not consider the marriage valid because it had not been consummated.  Therefore Hota could not be considered for legal permanent residency.  The sexual relations between Hota and Michael that resulted in the birth of their son occurred before, not after, the proxy marriage, and therefore did not meet the immigration notion of consummation.  Michael died in Iraq.  Not only could Hota not obtain permanent resident status, she even had difficulty obtaining a visitor’s visa to bring her son to the U.S. to visit his grandparents, his citizen father’s mother and father. [209]

Proving the validity of the marriage is only the first step.  If the marriage passes the various tests for validity and the husband’s petition is approved,[210] the next step is for the non-citizen wife to apply for admission, or if eligible, for adjustment of status.[211]  At this point the wife must demonstrate she is admissible and not excludable.[212] The immigration statute now includes extensive grounds for exclusion including grounds based on health, crime related background, security related grounds, and a long series of grounds having to do with more technical immigration violations.[213]

One technical exclusion ground, in particular, has been a significant barrier to spouse-based immigration. Mere unauthorized presence in the United States is a basis for barring admission.  The law has bars to the admission of any alien who was in the United States with permission and then overstayed the time, or who did not originally have a proper entry visa.  Those whose unauthorized presence was for more than a year are barred for ten years; those with 180 days but less than one year of unauthorized presence are barred for three years.[214]  A waiver may be granted for these bars upon proof of “extreme” hardship to a citizen spouse,[215] but proof of “extreme” hardship is extremely difficult because the hardship must be unusual, beyond that which would normally be expected, and not just the type of hardship experienced by most spouses in the circumstances.[216]

If the wife can pass the rigorous test of admissibility, she then becomes a legal resident either on a permanent or conditional basis. If the marriage is less than two years, the alien spouse becomes a resident on a conditional basis.[217]  If the condition is not removed after two years, then the resident status lapses and the alien spouse is an unauthorized alien.[218]  The removal of the condition generally requires a joint petition by both spouses, thus giving the husband more control over his wife’s immigration status.[219]

If the wife demonstrates she is admissible and becomes a permanent resident she is still subject to extensive grounds for deportation.[220]  It is beyond the scope of this article to detail the myriad intricacies of immigration law’s exclusion and deportation provisions, but two stories serve to illustrate how the wife of a U.S. citizen can fall afoul of them.

Mildred Gonzalez left Guatemala at the age of five. She came to the United States in 1989 with her mother who was granted asylum. Her mother applied for resident status based on the grant of asylum and included Mildred as her child on her application. Mildred’s mother’s status was granted. Mildred was denied because six weeks before she had married Eduardo Gonzalez, a U.S. citizen.  Her marriage to a U.S. citizen resulted in the determination that she was no longer defined as her mother’s child because she was married. Eduardo and Mildred had a citizen son, Eduardo Jr.  Eduardo Gonzalez was a petty officer with the U.S Navy and as he prepared to be deployed overseas, his wife Mildred faced deportation.[221]

Berly Feliz had entered the United States across the Mexican border.  Two years later, in 1996, she married Carlos Feliz, a United States citizen, and began the process to regularize her immigration status based on the marriage.  While this was pending, their citizen daughter Virginia was born. In 2004 when Berly Feliz went to the immigration office to renew her work authorization document granted as part of the processing, she was immediately arrested and deported based on an order that had been issued in absentia.  Berly did not even have a chance to say goodbye to Virginia or Carlos.  She was deported to Honduras.[222]

If a wife can negotiate the hurdles of becoming and staying a legal permanent resident for three years, she can then apply for naturalization to become a United States citizen.  Naturalization under current law cannot be denied because of race, sex or because the person is married.[223]  An applicant for naturalization must meet several criteria, including understanding of the English language, history and principles of the U.S. government, good moral character, residence and physical presence in the United States, allegiance to the United States and its constitution, and a showing that one is not opposed to government or law or favors totalitarian forms of government.[224]

Wives of citizens under today’s law therefore have a long road to citizenship with numerous potential pitfalls.   While the prior practice of a wife automatically assuming the citizenship of her husband was based in concepts of the subordination of women, it was a practical benefit for many.  Removal of derivative citizenship status for citizens’ wives was justified as establishing independent citizenship for women.  However, the immigration process that is a prerequisite to citizenship still has elements of spousal control and many legal barriers.  The removal of wife subordination did not mandate such a result.  An alternative could provide a clear independent pathway to citizenship for both the wives and husbands of U.S. citizens by affording citizenship through marriage to spouses of citizens who consent.  This would promote the interest of family unity over concerns about spousal control and the imposition of daunting technical barriers.   For example, the constitution of Bolivia provides that foreigners married to Bolivians acquire Bolivian nationality provided they manifest their consent and reside in the country.[225]  Even without providing for derivative citizenship for spouses, their pathway to citizenship could be more humane and better promote gender equality and family unity.  The law could provide for an immigration process for the spouses of citizens that removed oppressive technical barriers, allowed for self-petitioning, and provided waivers for grounds of inadmissibility based in the expected consequences of spousal separation in an intact family.


Both the loss and acquisition of citizenship by wives were historically based in state imposed gender norms that devalued women.  These norms infused into citizenship a waning domestic law concept that women as wives did not have independent identities or personal or political rights.

The acceptance of the notion that citizen women who married non-citizen men were unworthy of citizenship set the stage for broad legislative authority to determine that other citizens were unworthy as well.  The legacies of the gendered notions underlying loss of citizenship formed the basis for acceptance of broad legislative authority for stripping citizenship status.  While Supreme Court interpretations curtailed that authority in the late 1960’s, expatriation based in gender norms was never explicitly overruled.  Further, current debates about dual nationality and penalizing the participation of U.S. citizens in the life or institutions of other countries are grounded in the same antagonism to citizen association with the “foreign” that historically justified the imposition of subordinating gender norms into citizenship status.  The establishment of derivative citizenship for wives of citizens, while grounded in notions of female subordination, had a positive practical impact for many women.  The difficult pathway to citizenship for the spouses of citizens that replaced derivative citizenship undermines family unity. 

The historical and current legacies of wives’ loss and acquisition of citizenship  demonstrate an underlying conflict in the concepts of United States democracy and citizenship. One view of citizenship is of expansive inclusion and a democracy based in the inherent value and freedom of each individual.  This sees U.S. democracy as a growing egalitarian project that seeks to implement a society based on recognition of each person’s worth and individual dignity. The other view sees a need for a hierarchical restrictive citizenship that identifies some as inherently incapable of the rights and responsibilities of citizenship and thereby the subjects of justified removal or denial of citizenship status.  This envisions a society as grounded in notions of superiority of some and the incapacity of others for self-rule and democratic participation, with the concomitant justification for exclusion and subordination.  Correcting the restrictions on citizenship loss and acquisition historically grounded in gender norms would promote a concept of democratic citizenship based in the recognition of individual dignity and freedom.


[1] Professor of law, City University of New York, School of Law.  My thanks for the excellent research assistance of Jessica Massimi and Johan Byssainthe, the assistance of Betty Tabor, and the comments of Professors Ruthann Robson, Andrea McArdle and Penelope Andrews.

[2] Of course “citizenship is not just a matter of formal legal status; it is a matter of belonging, including recognition by other members of the community.”  Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor, 52 (2009).  Marriage is still the basis for loss of citizenship for wives in some countries, often justified on the basis that the husband is the head of the family and all family members should have the same citizenship.  Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 Va. J. Int’l L. 643(1990); Stephanie Palo, Still Citizens After Marriage: Exploring Violations of Women’s Nationality Rights, 30 Women’s Rts. L. Rep. 673 (2009).

[3] Full access to resources and rights often depend on the acquisition of citizenship in a nation state. In the United States there are numerous categories of aliens who are precluded from federally financed programs. Even legal permanent residents have limitations on their access to public programs. Janet M. Calvo, Alien Status Restrictions on Eligibility for Federally Funded Assistance Programs, 16 N.Y.U. Rev. L. & Soc. Change 395, 412-415 (1988); Janet M. Calvo, The Consequences of Restricted Health Care Access for Immigrants: Lessons from Medicaid and SCHIP, 17 Annals of Health Law 175, 176 (2008).

[4] T. Alexander Aleinikoff and Douglas Klusmeyer, Citizenship Practices for an Age of Migration, 42 (2002).  Janet M. Calvo. The Constitutional Right to Acquire Citizenship: Comparative Provision and Issues, in Law and Rights: Global Perspectives on Constitutionalism and Governance 165 (Penelope Andrews and Susan Bazilli, eds., 2008).

[5] Perez v. Brownell, 356 U.S. 44, 64-65 (1958) (Warren, J., dissenting). This article focuses on the constitutional protection for formal citizenship in the United States predominately through the lens of gender.  It is acknowledged that while protection of the status of citizenship is important, it is far from sufficient since formal citizenship does not always mean full access to the rights and responsibilities of a member of a society. Unfortunately, there is a myriad of historical and current instances of second-class citizenship imposed on people who clearly meet a constitutional norm, but who face discrimination because of gender, race, ethnicity, and sexual orientation.  For an example of more expansive notions of citizenship analyzed through the lens of gender see Samin Meer, Charlie Sever, Gendered Citizenship, Overview Report, BRIDGE, http://www.ids.ac.wk/bridge.

[6] U.S. Const. Art. I, §8.

[7] U.S. Const. Am. XIV.

[8] Jo Ellen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA Women’s L.J. 103, 159-165, 169-174 (1994).

[9] Linda K Kerber, No Constitutional Right to be Ladies, 87-88, 98-100 (1998); Lind, id. at 159-165.

[10] Bradwell v. State of Illinois, 83 U.S. 130 (1872).

[11] Minor v. Happersett, 88 U.S. 162 (1874).

[12] GLENN, supra note 2, at 44-45.

[13] Bradwell, 83 U.S. 130 (holding that Illinois constitutionally denied law licenses to women, because the right to practice law was not one of the privileges and immunities guaranteed by the Fourteenth Amendment); See also Minor, 88 U.S. 162 (where the Supreme Court held that women were not entitled to suffrage because voting is not a privilege of citizenship.)

[14] C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship, 63-64 (1998); See also 7 U.S. Dep’t of State, Foreign Affairs Manual, §1200, 1240, Appendix E: American Women Married to Aliens Between March 2, 1907 and September 22, 1922 (2008).

[15] Expatriation Act, ch. 2534, §3, 34 Stat. 1228, 1228-1229 (1907) (providing “[t]hat any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.”).

[16] Id.

[17] Act of Feb. 10, 1855, Ch. 71, §1, 10 Stat. 604 (1855).

[18] Janet M. Calvo, Spouse-based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 593, 596-98 (1991); Janet M. Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, 24 No. Ill. U.L. Rev. 153, 160-161 (2004).

[19] Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, Ibid at 18, at 158; Bredbenneer, supra note 14, at 19, 56.

[20] Mackenzie v. Hare, 239 U.S. 299 (1915).

[21] Id at 305 (stating that “[t[he plaintiff was born and ever since has resided in the state of California. On August 14, 1909, being then a resident and citizen of this state and of the United States, she was lawfully married to Gordon Mackenzie, a native and subject of the kingdom of Great Britain. He had resided in California prior to that time, still resides here, and it is his intention to make this state his permanent residence. He has not become naturalized as a citizen of the United States and it does not appear that he intends to do so. Ever since their marriage the plaintiff and her husband have lived together as husband and wife. On January 22, 1913, she applied to the defendants to be registered as a voter. She was then over the age of twenty-one years and had resided in San Francisco for more than ninety days. Registration was refused to her on the ground that, by reason of her marriage to Gordon Mackenzie, a subject of Great Britain, she thereupon took the nationality of her husband and ceased to be a citizen of the United States.”).

[22] Mackenzie, 239 U.S 299.

[23] Id., at 312.

[24] Bredbenner, supra note 14 at 58-59.

[25] Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 American Historical Review 1440 at 1455 (1998).

[26] Bredbenner, supra note 14, at 58-59.

[27] Shanks v. Dupont, 28 U.S. 242, 246 (1830) (noting that “[m]arriage with an alien, whether a friend or an enemy, produce[d] no dissolution of the native allegiance of the wife.”   By the end of the 19th century, however, a few courts adopted the view that a woman’s nationality followed her husband’s.  See, e.g., Pequignot v. Detroit, 16 F. 211, 216 (C.C.E.D.Mich.1883). But see, e.g., Ruckgaber v. Moore, 104 F. 947, 948-949 (C.C.E.D.N.Y.1900) (focusing on the loss of citizenship while the woman resided abroad in her husband’s country).

[28] Bredbenner, supra note 14, at 57-60.

[29] Mackenzie, 239 U.S. 299, at 307-308.

[30] The administrative view prior to 1907 had been that citizenship loss occurred only when a woman who had married a non-citizen resided in her husband’s country and acquired that country’s citizenship by virtue of marriage and that there was a treaty between the U.S. and that country that recognized each other’s naturalization.  Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, Immigration Law and Procedure  Part 7, §100.02 (3) (m) (2009).

[31] Bredbenner, supra note 14, 56-57 (acknowledging that the coverture concepts were diminishing and that views of women’s dependence informed the statute  but arguing that the primary  motivation for the 1907 law was part of government enactment of increasingly restrictive immigration and nationality laws).

[32] Cott, supra note 25 at 1463.

[33] Mackenzie, 239 U.S. 299, at 311.

[34] There is no indication he objected to her U.S. citizenship and there is evidence that he supported her registration to vote.  Kerber, supra note 9 at 41-42.

[35] Mackenzie, 239 U.S. 299.

[36] Mackenzie, 239 U.S. 299.

[37] Bredbenner, supra note 14, at 19-20.

[38] Act Concerning the Rights of American Citizens in Foreign States, ch. 248, 249, Preamble, 15 Statutes at Large 223, 224 (1868) (stating that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”); see also 8 U.S.C. § 1481 note (2000) (quoting R.S. § 1999).

[39] But see Afroyim v. Rusk (where the majority and minority opinions regarding concepts of expatriation in early America differed.  In Afroyim, Justice Harlan stated in his dissent that “[i]t is appropriate to note at the outset what appears to be a fundamental ambiguity in the opinion for the Court.  The Chief Justice acknowledged that ‘actions in derogation of undivided allegiance to this country’ had ‘long been recognized’ to result in expatriation…; he argued, however, that the connection between voting in a foreign political election and abandonment of citizenship was logically insufficient to support a presumption that a citizen had renounced his nationality. It is difficult to find any semblance of this reasoning… in the approach taken by the Court today; it seems instead to adopt a substantially wider view of the restrictions upon Congress’ authority in this area. … it has assumed that voluntariness is here a term of fixed meaning; in fact, of course, it has been employed to describe both a specific intent to renounce citizenship, and the uncoerced commission of an act conclusively deemed by law to be a relinquishment of citizenship.”).  Afroyim v. Rusk, 387 U.S. 253, 270, fn 1. (1967) (Harlan, J., dissenting) (1967).

[40] Mackenzie, 239 U.S. 299 at 310 (stating that “[p]laintiff says, ‘Expatriation is evidenced only by emigration, coupled with other acts indicating an intention to transfer one’s allegiance.’ And all the acts must be voluntary, ‘the result of a fixed determination to change the domicil and permanently reside elsewhere, as well as to throw off the former allegiance, and become a citizen or subject of a foreign power.’ The right and the condition of its exercise being thus defined, it is said that the authority of Congress is limited to giving its consent. This is variously declared and emphasized. ‘No act of the legislature,’ plaintiff says, ‘can denationalize a citizen without his concurrence,’ …. ‘And the sovereign cannot discharge a subject from his allegiance against his consent except by disfranchisement as a punishment for crime,’ citing Ainslie v. Martin, 9 Mass. 454. ‘The Constitution does not authorize Congress to enlarge or abridge the rights of citizens,’ citing Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204. ‘The power of naturalization vested in Congress by the Constitution is a power to confer citizenship, not a power to take it away. . . .”).

[41] Id. (stating that “[t]he 14th Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth declared by the Constitution to constitute a sufficient and complete right to citizenship.”) (citing United States v. Wong Kim Ark, 169 US 644 (1989)).

[42] Mackenzie, 239 U.S. at 310-311.

[43] Id.

[44] Id.

[45] Cott supra note 25 at 1462; Charles Gordon et al, supra note 30 at §100.02 (6)  See also U.S. Dep’t of State, 7 Foreign Affairs Manual, §1215, Loss and Restoration of U.S. Citizenship, (2008).

[46] Expatriation Act, ch. 2534, §3, 34 Stat. 1228, 1228-1229 (1907); See also 7 U.S. Dep’t of State, Foreign Affairs Manual, §1200, 1240, Appendix E: American Women Married to Aliens Between March 2, 1907 and September 22, 1922 (2008).

[47] Gordon et al, supra note 30 at §100.02 1(b)(iv)(v), (4).

[48] Id at sec. 100.02 1 (b) (iv); See also Perez v. Brownell, 356 U.S. 44 (1958) (Where Congress’s right to revoke U.S. citizenship for voting in a foreign election had been upheld by the Supreme Court).

[49] Gordon et al, supra note 30 at §100.02 1(b)(iv).

[50] In 1967, the Court expressly overruled Perez by a 5-4 vote in Afroyim. See Afroyim, 387 U.S. at 257 (Where the court stated that “[w]e reject the idea expressed in Perez that . . . Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent”); Id. at 262-63). Not a single justice suggested a return to Perez when the Court revisited the issue of expatriation in 1980. See Vance v. Terrazas, 444 U.S. 252 (1980).

[51] Infra note 58; See also Gordon et al, supra note 30 at §100.02 (2)(a)(v); See also Trop v. Dulles, 356 U.S. 86 (1958) (Where the Supreme Court held an expatriation statute unconstitutional in a five to four decision.  The statute provided that desertion from the armed forces in time of war resulted in citizenship loss.  The plurality opinion stated that this was a penal statute that imposed cruel and unusual punishment since the former citizen became stateless.).

[52] Perez v. Brownell, 356 U.S. 44 (1958).

[53] Id. at 49-51.

[54] Id. at 60.

[55] Id. at 69.

[56] Id. at 70, fn. 20.

[57] Id. at 61.

[58] Trop v. Dulles, 356 U.S. 86 (1958) (Where the Supreme Court for the first time invalidated a loss of nationality statute which provided for loss of nationality upon conviction for desertion from the armed forces of the United States during time of war. As in Perez, the vote was five-to-four: Chief Justice Warren’s plurality opinion, speaking for the four dissenters in Perez, found that the statelessness imposed on the expatriated citizens was a form of cruel and unusual punishment. Id., 356 U.S. at 91-104.  Justice Brennan’s swing vote concluded that the loss of nationality penalty was not rationally related to a demonstrated national need. Id., 356 U.S. 86 at 105. The four dissenters comprised the remainder of the Perez majority, and found the statute a reasonable and constitutional measure.  Id., 356 U.S. at 114); Nishikawa v. Dulles, 356 U.S. 129 (1958) (Where the court declined to reach the issue of whether loss of nationality for military service of a foreign state was constitutional and instead ruled that the government had not established, with the requisite certainty, that the military service was voluntary); Kennedy v. Mendoza-Martinez, 372 U.S. 144, (1963) (Where the court struck down a statute prescribing loss of nationality as a consequence for evading military service.  The majority found the statute to be punitive and defective because the penalty was imposed without observing the constitutional safeguards relating to penal sanctions); Schneider v. Rusk, 377 U.S. 163 (1964) (Where the court struck down a loss of nationality statute that provided for the expatriation of a naturalized citizen who resided in his native country for a specified number of years.  The court found this statute to be an invalid discrimination against naturalized citizens); Marks v. Esperdy, 377 U.S. 214 (1964) (where the  Supreme Court affirmed without opinion a lower court decision, Marks v. Esperdy, 315 F.2d 673 (2d Cir. 1963), upholding the expatriation of a person who had served in the armed forces in Castro’s Cuba).

[59] Afroyim 387 U.S. 253 (1967).

[60] Id. at 277.

[61] Id. at 268.

[62] Id.

[63] Id.

[64] Id.

[65] Vance v. Terrazas, 444 U.S. 252 (1980).

[66] Id.

[67] Id at 269-270.

[68] Terrazas v. Haig, 653 F.2d 285, 288 (7th Cir. 1981).

[69] Id.

[70] The United States Supreme Court upheld the Expatriation Act of 1907 noting that “the identity of husband and wife is ancient principle of our jurisprudence.” Mackenzie, 239 U.S. at 311.  By 1998, in the matter of Miller v. Albright, 523 U.S. 420 (1998), the U.S. Supreme Court recognized women’s political struggles with expatriation and citizenship noting that: “The statutory rule that women relinquished their United States citizenship upon marriage to an alien encountered increasing opposition, fueled in large part by the women’s suffrage movement and the enhanced importance of citizenship to women as they obtained the right to vote. In response, Congress provided a measure of relief. Under the 1922 Cable Act, marriage to an alien no longer stripped a woman of her citizenship automatically. But equal respect for a woman’s nationality remained only partially realized. A woman still lost her United States citizenship if she married an alien ineligible for citizenship; she could not become a citizen by naturalization if her husband did not qualify for citizenship; she was presumed to have renounced her citizenship if she lived abroad in her husband’s country for two years, or if she lived abroad elsewhere for five years. A woman who became a naturalized citizen was unable to transmit her citizenship to her children if her non-citizen husband remained alive and they were not separated. See In re Citizenship Status of Minor Children Where Mother Alone Becomes Citizen Through Naturalization, 25 F.2d 210, 210 (NJ 1928) (“the status of the wife was dependent upon that of her husband, and therefore the children acquired their citizenship from the same source as had been theretofore existent under the common law”); No restrictions of like kind applied to male United States citizens.” Id at 463.

[71] See infra at notes 95, 118, 125.

[72] INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010).

[73] Rocha v. I.N.S., 351 F.2d 523 (1st Cir. 1965).

[74] Id. at 524.

[75] Rocha v. I.N.S., 450 F.2d 946 (1st Cir. 1971).

[76] INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010).

[77] Id.

[78] Id.

[79] Rev. Rul. 75-357, 1975-2 I.R.B. 81.

[80]  IRS TAM 7605250090 A (1976), 1976 WL 39820; for a discussion of current tax rules see Joel Kuntz and Robert Peroni, U.S. International Taxation, U.S. Int’l Tax B1.02 (1), 2000 WL 530096 (last updated 2009).

[81] See infra, notes 116, 117.

[82] Bredbenner, supra note 14, at 63-64.

[83] Id., at 63.

[84] Id., at 57-58.

[85] Expatriation Act, ch. 2534, §2, 34 Stat. 1228, 1228-1229 (1907).

[86] Cott, supra note 25 at 1462.

[87] Bredbenner, supra note 14 at 63.

[88] Relative to Citizenship of American Women Married to Foreigners, Hearings before the H. Comm. on Immigr. and Nat., 65th Cong., 2d sess. (1917).

[89] H.R. 4049, 65th Cong., 2d sess. (1917).

[90] Bredbenner, supra note 14, at 73; Hearings, supra note 87 at 33.

[91]  Bredbenner, supra note 14 at 74.

[92] Id., at 86.

[93] Id., 71-72; Hearings, supra note 88 at 6.

[94] Kerber, supra note 9 at 42.

[95] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922); Bredbenner, supra note 14 at 89.

[96] Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L.Rev. 405 (2005).

[97] See e.g., Martha Gardner, The Qualities of a Citizen, Women, Immigration and Citizenship, 1870-1965 (2005); GLENN, supra note 2.

[98] See infra notes 117-124.

[99] An Act to Establish a Uniform Rule of Naturalization, ch. 3, §1, 1 Stat 103 (1790).

[100] Volpp, supra note 96, at 435-438; Ian F. Haney Lopez, White by Law: The Legal Construction of Race (1996). Gardner supra note 97 at 142-146. See INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010). In cases of mixed races, the applicant had to establish that he or she was preponderantly of an eligible race.  It is an understatement to say that race was socially constructed.  For example ethnicities such as Irish, Jews and Italians were at one time considered separate races and then were assimilated into the category of “white.”  See Gardner supra note 97 at 10.

[101] Dred Scott v. Sandford, 60 U.S. 393 (1856).

[102] The Naturalization Act of July 14, 1870, ch. 245, §7, 16 Stat 256 (1870).

[103] The Chinese Exclusion Act of May 6, 1882, ch. 126, §14, 22 Stat 58 (1882).

[104] Ozawa v. United States, 260 U.S. 178 (1922).

[105] United States v. Thind, 261 U.S. 204 (1923).

[106] Toyota v. United States, 268 U.S. 402 (1925).

[107] Wong Kim Ark, 169 U.S. 649 (1898); See also State v. Kosai 234 Pac. 5 (1925) (Where the court found that children born in the U.S. to Japanese parents were citizens even though their parents could not become citizens).

[108] Wong Kim Ark, 169 U.S. 649 (1898).

[109] Immigration and Nationality Act of June 27, 1952, ch. 477, § 207, 66 Stat. 163 (1952).

[110] Nationality Act of 1940, §201, 54 Stat. 1137, 1140 (1940).

[111] Act of Dec. 17, 1943, ch. 344, §1, 57 Stat. 601 (1943).

[112] 8 U.S.C. §1422 (2006).

[113] See infra note 184.

[114] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[115] Id.

[116] Act of March 3, 1931 ch. 442, §4 (a), 46 Stat. 1511 (1931).

[117] Volpp, supra note 96 at 443-444; Act of March 3, 1931 ch. 442, §4 (a), 46 Stat 1511 (1931).

[118] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[119] Volpp, supra note 96 at 410.

[120] Id., at 433.

[121] Id., at 434-435.

[122] Ex Parte Fung Sing, 6 F. 2d 670 (1925); Cott, supra note 25, at 1466.

[123] Thind, 261 U.S. 204.

[124] Cott, supra note 25, at 1467.

[125] Gordon et al, supra note 30 at §97.07; Act of July 3rd 1930, ch. 835, 46 stat.854 (1930); The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922); Act of June 25, 1936 (“An Act to Repatriate Native-Born Women Who Have Heretofore Lost Their Citizenship By Marriage to An Alien) ch. 801, 49 Stat. 1917 (1936); Nationality Act of 1940, §201, 54 Stat. 1137, 1140 (1940); The Immigration and Nationality Technical Corrections Act of 1994, 108 Stat. 4305 (1994).

[126] 8 U.S.C. §1434 (c) (2006).

[127] 8 U.S.C. §1434 (b) (2006).

[128] INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010).

[129] Loving v. Virginia, 388 U.S.1, 12 (1967); Erwin Chemerinsky, Constitutional Law, Principles and Policies (2006)  at 798-800.

[130] Chemerinsky, ibid at 798-800. Yet, the Supreme Court, in the context of heritage citizenship, upheld gender discrimination that favored out of wedlock mothers as versus fathers by affording citizenship to their children on different criteria. Nguyen v. I.N.S., 533 U.S. 53 (2001).

[131] However, citizenship through descent is not similarly protected because it is established by statute and not mentioned in the Constitution.  See Rogers v. Bellei, 401 U.S. 815, 836 (1971) (Where the court held that a “[s]tatute providing that a person who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, shall lose his citizenship unless he resides in the United States continuously for 5 years between ages of 14 and 28 had no constitutional infirmity in its application to individual who was born abroad, who was not naturalized in the United States, and who had not been subject to jurisdiction of the United States”).

[132] 8 U.S.C. §1481 (2006).

[133] Immigration and Nationality Act Amendments of 1986, §18, 100 Stat. 3655 (1986).

[134] 8 U.S.C. §1481 (a) (1) (2006).

[135] 8 U.S.C. §1481 (a) (2) (2006).

[136] 8 U.S.C. §1481 (a) (3) (2006).

[137] 8 U.S.C. §1481 (a) (4) (a) (2006).

[138] 8 U.S.C. §1481 (a) (4) (b) (2006).

[139] 8 U.S.C. §1481 (a) (5) (2006).

[140] 8 U.S.C. §1481 (a) (6) (2006).

[141] 8 U.S.C. §1481 (a) (7) (2006).

[142]United States Department of State, Bureau of Consular Affairs, Advice About Possible Loss of Citizenship and Dual Nationality, available at http://travel.state.gov/law/citizenship/citizenship_778.html.

[143] Interpreter Releases 799 (July 23, 1990); 67 Interpreter Releases 1092 (October 1, 1990).

[144] 22 C.F.R. § 50.40(a).

[145] Id.

[146] United States Department of State, Bureau of Consular Affairs, Advice About Possible Loss of Citizenship and Dual Nationality, available at http://travel.state.gov/law/citizenship/citizenship_778.html.

[147] Id.

[148] Id.

[149] Id.

[150] 8 U.S.C. §1481 (a) (3) (2006); See also 7 U.S. Dep’t of State, Foreign Affairs Manual §1211, Loss and Restoration of U.S. Citizenship, (2008).

[151] 8 U.S.C. §1481 (a) (7) (2006); See also 7 U.S. Dep’t of State, Foreign Affairs Manual §1211, Loss and Restoration of U.S. Citizenship, (2008).

[152] See also 7 U.S. Dep’t of State, Foreign Affairs Manual §1211, Loss and Restoration of U.S. Citizenship, (2008); See also United States Department of State, Bureau of Consular Affairs, Advice About Possible Loss of Citizenship and Dual Nationality, available at http://travel.state.gov/law/citizenship/citizenship_778.html. An individual may also specifically renounce U.S. citizenship. Pursuant to 8 U.S.C. §1481(a)(5) renunciation can only occur outside the United States. See also 7 U.S. Dep’t of State, Foreign Affairs Manual, §1200, Loss and Restoration of U.S. Citizenship (2008).  For purposes of this provision, the State Department has issued a form, “Oath of Renunciation of the Nationality of the United States” (the “oath”) which facilitates formal renunciation. The renunciant must swear that “I desire to make a formal renunciation of my American nationality, as provided by section 349(a)(5) of the Immigration and Nationality Act [8 U.S.C. § 1481(a)(5)] and pursuant thereto I hereby absolutely and entirely renounce my United States nationality together with all rights and privileges and all duties of allegiance and fidelity thereunto pertaining.” (emphasis added). This oath is also accompanied by a “Statement of Understanding” (the “statement”), which the renunciant must also sign. The statement declares “[u]pon renouncing my citizenship I will become an alien with respect to the United States, subject to all the laws and procedures of the United States regarding entry and control of aliens,” that “If I do not possess the nationality of any country other than the United States, upon my renunciation I will become a stateless person and may face extreme difficulties in traveling internationally and entering most countries.” (emphasis added).

[153] H.R. 3938, § 703 109th Cong. (1st Sess. 2005).

[154] T. Alexander Aleinkoff, Between Principles and Politics:  The Direction of U.S. Citizenship in From Migrants to Citizens:   Membership in a Changing World, 137-41 (T. Alexander Aleinikoff & Douglas B. Klusmeyer eds.  2000).

[155] T. Alexander Aleinkoff and Douglas B. Klusmeyer, Plural Nationality:  Facing the Future in a Migratory World  in  Citizenship Today: Global Perspectives and Practices, 63-87 (T. Alexander Aleinikoff & Douglas B. Klusmeyer Eds.  2001).

[156] See David Martin’s view urging the acceptance of dual nationality if accompanied by a non-exclusive oath of allegiance to promote the notion of civic solidarity. David A. Martin Warner-Booker Distinguished Professor of International University of Virginia School of Law Chair Lecture, October 27, 2004 http://www.law.virginia.edu/html/alumni/uvalawyer/sp05/martin_lecture.htm.

[157] Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. on the Judiciary, 109th Cong. 33 (2005) (statement of Dr. John Fonte, Senior Fellow, The Hudson Institute); testimony and statement available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=f:23690.pdf.

[158] Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. on the Judiciary, 109th Cong. 39 (2005) (statement of Dr. John Fonte, Senior Fellow, The Hudson Institute)., testimony and statement available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=f:23690.pdf.

[159] Id. at 39.

[160] Id. at 40.

[161] Id. at 43.

[162] Id. at. 84 (statement of Dr. John Fonte, Senior Fellow, The Hudson Institute).

[163]  Id at 88-89; H.R. 3738 § 702, 109th Cong. (1st Sess. 2005) proposed these sanctions.  It was proposed by Representative Hayworth and had thirty-three co-sponsors.

[164] Id., at 72, 74 (testimony and statement of Peter Spiro, Associate Dean for Faculty Development and Dean and Virginia Rusk Professor of International Law, University of Georgia School of Law) testimony and statement available at: http://frwebgate.access.gpo.gov/cgi-.bin/getdoc.cgi?dbname=109_house_hearings&docid=f:23690.pdf.

[165] Id at 73.

[166] Id.

[167] Id.

[168] PBS Newshour with Jim Lehrer, Clinton: U.S. Committed to Haiti’s Recovery, January 14, 2010, video and transcript available at http://www.pbs.org/newshour/bb/weather/jan-june10/clinton_01-14.html.

[169] Shaila Dewan, “Scattered Émigrés Haiti Once Shunned Are Now a Lifeline,” The New York Times, February 3, 2010, available at: http://www.nytimes.com/2010/02/04/us/04diaspora.html?scp=1&sq=haiti%20welcomes%20back%20those%20who%20left&st=cse.

[170] Calvo, supra note 4, at 168.

[171] Act of Feb. 10, 1855, ch. 71, §1, 10 Stat. 604 (1855).

[172] Bredbenner, supra note 14, Chapter 1

[173] Bredbenner, ibid at 19.

[174] Ibid ., at 21 (quoting from the case of Elise Lebret, John Bassett Moore, History and Digest of International Arbitrations to which the United States has been a Party, Vo. 3, 2499 (Washington, D.C.: GPO., 1898)).

[175] Gardner, supra note 97 at  24-30.

[176] United States ex rel Nicola v. Williams, 173  F 627; In re Nicola, 184 F. 322 (2nd Cir. 1911).

[177] Gardner, supra note 97, Chapter 2 (discussing that this was not always the result.  There was resistance to the derivative citizenship of some women because of concerns about prostitution, common law marriage, and picture brides).  In 1917 the concern about prostitution was incorporated into the law.  Women who were deemed prostitutes did not acquire citizenship even if married to American citizens.  See Ex parte Bigney, 285 F. 669 (D.Or.1923).

[178] Bredbenner, supra note 14, 20-21.

[179] Cott, supra note 25 at 1456-1457.

[180] Bredbenner, supra note 14, at 72; Hearings, supra note 88 at 8.

[181] Cott, supra note 25 at 1457.

[182] Gardner, supra note 97 at  15-19.

[183] Bredbenner, supra note 14, at 21-22 and Chapter 3.

[184] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[185] Meyer v. Nebraska, 262 U.S. 390 (1923); See also Troxel v. Granvil, 530 U.S. 57 (2000) (Where the court noted that “[t]he interest of parents to the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.  More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own”).

[186] Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925); See also Troxel v. Granvil, 530 U.S. 57 (2000) (Where the court noted that “[i]n Pierce v. Society of Sisters, 268 U.S. 510 (1925), we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained in Pierce that ‘[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’” Id., at 166, 64 S.Ct. 438.).

[187] Erwin Chemerinsky, Constitutional Law, Principles and Policies supra note 129 at 798.

[188] Loving v. Virginia, 388 U.S. 1, 12 (1967) (Where the court struck down all anti-miscegenation laws, noting that “[m]arriage is one of the ‘basic civil rights of man, fundamental to our very existence and survival…’. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”). Chemerinsky, supra note 187 at 798-800

[189] Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (Where the Supreme Court held that an ordinance limiting occupancy of a dwelling unit to members of a single nuclear family deprived appellant of her liberty in violation of the Due Process Clause of the Fourteenth Amendment.  The court noted that “[w]hen the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation”).

[190] Chemerinsky, supra note 129 at 798-799, 806.

[191] Cott,  supra note 25 at 1465.

[192] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §1, 42 Stat. 1021 (1922); “(T)he right of any woman to become a naturalized citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman.”

[193] United States v. Cohen, 179 F. 834 (2d Cir. 1910);  In re Guary, 271 F. 968 (S.D.N.Y. 1921);  In re Rionda, 164 F. 368 (S.D.N.Y. 1908). Cf.  Pintsch Compressing Co. v. Bergin, 84 F. 140 (D. Mass. 1897);  In re Langtry, 31 F. 879 (D. Cal. 1887) .

[194] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[195] The Constitution provides that Congress has the authority to set the criteria for naturalization.  These criteria have changed over time.  See 8 U.S.C. §1481 (2006).

[196] Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, supra note 18; Jennifer M. Chacón, Loving Across Borders: Immigration Law and the Limits of Loving, 2007 Wis. L.Rev. 345 (2007).

[197] Id., Gardner supra note 97 at 223-231.  See also, Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (2004).

[198] Calvo, supra note 18.

[199] Frank Bean, American’s Newcomers, 183, figure 8.2 (2003).

[200] Statistics from the USDHS suggests that spouse-based immigration is predominantly female;  the number of married women obtaining legal permanent resident status in the fiscal year of 2008 was 360, 753, and the number of  women obtaining legal permanent resident status in the fiscal year of 2008 as immediate relatives of United States Citizens was 292, 511.  See The Department of Homeland Security, Office of Immigration Statistics’ 2008 Yearbook of Immigration Statistics, Tables 8 and 9, available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/ois_yb_2008.pdf; See also http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table08.xls, http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table09.xls.

See also http://www.immigration.gov/graphics/aboutus/repsstudies/Mobrept.htm News Release: Reports to Congress on “Mail-Order Bride” Businesses.

[201] 8 U.S.C. §§1430(a), 1427, 1423, 1424, 1425 (2006).

[202] 8 U.S.C. §§ 1154(a)(1)(A)(i), 1154(a)(1)(B)(i) (2006); 8 U.S.C. § 1154 (setting the procedure for granting immigrant status); 8 U.S.C. § 1154(a) (requiring a petitioning procedure); 8 U.S.C. § 1154(a)(1)(A)(i) (stating “any citizen of the United States claiming that an alien is entitled to … an immediate relative status under section 1151(b)(2)(A)(i) of this title may file a petition with the Attorney General for such classification”); Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, supra note 18, at 156.

[203] 8 U.S.C. §§ 1154(a)(1)(A)(iii); 1154(a)(1)(B)(ii)(I) (2006).

The language of the exception requiring the citizen or resident to file a petition for a spouse is the same in 8 U.S.C. §1154(a)(1)(A)(iii) (2006) relating to spouses of United States Citizens and 8 U.S.C. §1154(a)(1)(B)(ii)(I) (2006) relating to spouses of permanent residents:

[I]f the alien demonstrates to the Attorney General that – (aa) the marriage or the intent to marry the United States citizen was entered into in good faith by the alien; and (bb) during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse.

8 U.S.C. § 1154(a)(1)(B)(ii)(I) (2006).

[204] Calvo,  A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, supra note 18, at 188.

[205] Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982).

[206] Sarah Ignatius & Elisabeth Stickney, Immigration Law and the Family,  4-22.

[207] 8 U.S.C. §1101(a) (35) (2006)  However, the Foreign Affairs Manual permits the issuance of a visitor’s visa to an alien married by proxy to come to the United States to consummate the marriage. 9 FAM n.10.1to 22 CFR 42.41.

[208] Lutwak v. U.S. 344 US 604 (1953); Sarah Ignatius & Elisabeth Stickney, Immigration Law and the Family, 4-28 footnote 2 .

[209] Kristin Hall, Immigration Law Rues Marine’s Marriage Invalid. http://www.leatherneck.com/forums/showthread.php?t=89294; In Their Boots, Second Battle, http://www.intheirboots.com/itb/episodes/season-2/second-battle.html; Robert Wilson, Marine’s son, wife leaves U.S., Knoxville News Sentinel, Jan. 6, 2010,


[210] See Immigration and Naturalization Service Form I-130, Petition for Alien Relative; 8 C.F.R. §204.2 (2006).

[211] 8 U.S.C. §§1154, 1255 (2006).

[212] 8 U.S.C. §1182 (a) (2006).

[213] 8 U.S.C. §1182 (a) (2006).

[214] 8 U.S.C. §1182 (a)(9)(B)(i)(I) & (II) (2006).

[215] 8 U.S.C. §1182 (a)(9)(B)(v) (2006).

[216]In Re Luis Felipe Cervantes-Gonzalez, 22 I. & N. Dec. 560.

[217] 8 U.S.C. §1186 (a)(1) (2006).

[218] 8 U.S.C. § 1186a(c) (2006).

[219] 8 U.S.C. §§ 1186a, 1186a(c) (4) (2006); Sarah Ignatius & Elisabeth Stickney, Immigration Law and the Family ch. 5.

[220] 8 U.S.C. § 1227 (2006).

[221] Thelma Gutierrez & Wayne Drash, U.S. sailor: Don’t deport my wife, CNN, Oct. 3, 2007, http://www.cnn.com/2007/US/10/03/military.deportation/index.html; see also Eduardo Gonzalez, Second Class Petty Officer Air Warfare, U.S. Navy, Testimony before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, Sept. 6, 2007, http://judiciary.house.gov/media/pdfs/Gonzalez070906.pdf.

[222] Nina Bernstein, A Mother Deported, and a Child Left Behind, N.Y. Times, Nov. 24, 2004, § A, at A1.

[223] 8 U.S.C. § 1422 (2006).

[224] 8 U.S.C. §§ 1424, 1427 (2006).

[225] Const. of Bolivia, Tit. 3, Ch. 1, art. 38.   Constitutional citation translated and reprinted from I-XX Constitutions of the Countries of the World (Oceana Publications) available at:  http://www.oceanalaw.com, (Dr. Rainier Grote, Dr. Rudiger Wolfrum and Gisbert H. Flanz, eds., 2006). An alternative is also suggested by Karen Knop who notes the problems caused for families when family members are prevented from having the same nationality and argues for a relational nationality that would determine the relationships to be protected through nationality including allowing multiple nationalities for families.  Karen Knop, Relational Nationality:  On Gender and Nationality in International Law, In Citizenship Today: Global Perspectives and Practices, 89-118 (T. Alexander Aleinikoff & Douglas B. Klusmeyer eds.) (2001).