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Harvard Law Review Association




In Sessions v. Morales-Santana, 3 the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.4 The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.5 When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.6 Over the last twenty years, the Supreme Court has considered four gender equal protection challenges to that law.7 As in previous cases, Luis Morales-Santana’s constitutional challenge required the Justices to grapple with two crucial and contested issues: the extent to which constitutional gender equality principles govern regulation and recognition of family relationships, and the nature of the judiciary’s role in the enforcement of the Constitution at the border. But in Morales-Santana, the Court did something it had never done before: in an opinion that develops a progressive vision of gender equality for the nonmarital family, it declared that a law governing the acquisition of citizenship violates equal protection principles.8

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