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The Fourteenth Amendment to the Constitution was a landmark victory for equal rights movements in many ways. Not only did its passage grant citizenship to formerly enslaved peoples, but it also included the Equal Protection clause, meaning that laws apply to all citizens of the country equally. Since its introduction, the Fourteenth Amendment has served as the foundation from which many other anti-discrimination laws and court rulings derive their authority.
"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
It is now established that sex classifications, in order to withstand equal protection scrutiny, must serve important governmental objectives and must be substantially related to achievement of those objectives.1 Thus, after several years in which sex distinctions were more often voided than sustained without a clear statement of the standard of review,2 a majority of the Court has arrived at the intermediate standard that many had thought it was applying in any event.3 The Court first examines the statutory or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, having ascertained the actual motivation of the classification, the Court engages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one would serve that end without substantial loss to the government.4
Some sex distinctions were seen to be based solely upon old notions, no longer valid if ever they were, about the respective roles of the sexes in society, and those distinctions failed to survive even traditional scrutiny. Thus, a state law defining the age of majority as 18 for females and 21 for males, entitling the male child to support by his divorced father for three years longer than the female child, was deemed merely irrational, grounded as it was in the assumption of the male as the breadwinner, needing longer to prepare, and the female as suited for wife and mother.5 Similarly, a state jury system that in effect excluded almost all women was deemed to be based upon an overbroad generalization about the role of women as a class in society, and the administrative convenience served could not justify it.6
Even when the negative stereotype that is evoked is that of a stereotypical male, the Court has evaluated this as potential gender discrimination. In J. E. B. v. Alabama ex rel. T. B.,7 the Court addressed a paternity suit where men had been intentionally excluded from a jury through peremptory strikes. The Court rejected as unfounded the argument that men, as a class, would be more sympathetic to the defendant, the putative father. The Court also determined that gender-based exclusion of jurors would undermine the litigants' interest by tainting the proceedings, and in addition, would harm the wrongfully excluded juror.
Assumptions about the relative positions of the sexes, however, are not without some basis in fact, and sex may sometimes be a reliable proxy for the characteristic, such as need, with which it is the legislature's actual intention to deal. But heightened scrutiny requires evidence of the existence of the distinguishing fact and its close correspondence with the condition for which sex stands as proxy. Thus, in the case that first expressly announced the intermediate scrutiny standard, the Court struck down a state statute that prohibited the sale of non-intoxicating 3.2 beer to males under 21 and to females under 18.8 Accepting the argument that traffic safety was an important governmental objective, the Court emphasized that sex is an often inaccurate proxy for other, more germane classifications. Taking the statistics offered by the state as of value, while cautioning that statistical analysis is a dubious business that is in tension with the normative philosophy that underlies the Equal Protection Clause, the Court thought the correlation between males and females arrested for drunk driving showed an unduly tenuous fit to allow the use of sex as a distinction.9
Invalidating an Alabama law imposing alimony obligations upon males but not upon females, the Court in Orr v. Orr acknowledged that assisting needy spouses was a legitimate and important governmental objective. Ordinarily, therefore, the Court would have considered whether sex was a sufficiently accurate proxy for dependency, and, if it found that it was, then it would have concluded that the classification based on sex had a fair and substantial relation to the object of the legislation.10 However, the Court observed that the state already conducted individualized hearings with respect to the need of the wife, so that with little if any additional burden needy males could be identified and helped. The use of the sex standard as a proxy, therefore, was not justified because it needlessly burdened needy men and advantaged financially secure women whose husbands were in need.11
Various forms of discrimination between unwed mothers and unwed fathers received different treatments based on the Court's perception of the justifications and presumptions underlying each. A New York law permitted the unwed mother but not the unwed father of a child born out of wedlock to block his adoption by withholding consent. Acting in the instance of one who acknowledged his parenthood and who had maintained a close relationship with his child over the years, the Court could discern no substantial relationship between the classification and some important state interest. Promotion of adoption of children born out of wedlock and their consequent legitimation was important, but the assumption that all unwed fathers either stood in a different relationship to their children than did the unwed mother or that the difficulty of finding the fathers would unreasonably burden the adoption process was overbroad, as the facts of the case revealed. No barrier existed to the state dispensing with consent when the father or his location is unknown, but disqualification of all unwed fathers may not be used as a shorthand for that step.12
On the other hand, the Court sustained a Georgia statute that permitted the mother of a child born out of wedlock to sue for the wrongful death of the child but that allowed the father to sue only if he had legitimated the child and there is no mother.13 Similarly, the Court let stand, under the Fifth Amendment, a federal statute that required that, in order for a child born out of wedlock overseas to gain citizenship, a citizen father, unlike a citizen mother, must acknowledge or legitimate the child before the child's eighteenth birthday.14 The Court emphasized the ready availability of proof of a child's maternity as opposed to paternity, but the dissent questioned whether such a distinction was truly justified under strict scrutiny considering the ability of modern techniques of DNA paternity testing to settle concerns about parentage.
The issue of sex qualifications for the receipt of governmental financial benefits has divided the Court and occasioned close distinctions. A statutory scheme under which a serviceman could claim his spouse as a dependent for allowances while a servicewoman's spouse was not considered a dependent unless he was shown in fact to be dependent upon her for more than one half of his support was held an invalid dissimilar treatment of similarly situated men and women, not justified by the administrative convenience rationale.15 In Weinberger v. Wiesenfeld,16 the Court struck down a Social Security provision that gave survivor's benefits based on the insured's earnings to the widow and minor children but gave such benefits only to the children and not to the widower of a deceased woman worker. Focusing not only upon the discrimination against the widower but primarily upon the discrimination visited upon the woman worker whose earnings did not provide the same support for her family that a male worker's did, the Court saw the basis for the distinction resting upon the generalization that a woman would stay home and take care of the children while a man would not. Because the Court perceived the purpose of the provision to be to enable the surviving parent to choose to remain at home to care for minor children, the sex classification ill-fitted the end and was invidiously discriminatory.
But, when, in Califano v. Goldfarb,17 the Court was confronted with a Social Security provision structured much as the benefit sections struck down in Frontiero and Wiesenfeld, even in the light of an express heightened scrutiny, no majority of the Court could be obtained for the reason for striking down the statute. The section provided that a widow was entitled to receive survivors' benefits based on the earnings of her deceased husband, regardless of dependency, but payments were to go to the widower of a deceased wife only upon proof that he had been receiving at least half of his support from her. The plurality opinion treated the discrimination as consisting of disparate treatment of women wage-earners whose tax payments did not earn the same family protection as male wage earners' taxes. Looking to the purpose of the benefits provision, the plurality perceived it to be protection of the familial unit rather than of the individual widow or widower and to be keyed to dependency rather than need. The sex classification was thus found to be based on an assumption of female dependency that ill-served the purpose of the statute and was an ill-chosen proxy for the underlying qualification. Administrative convenience could not justify use of such a questionable proxy.18 Justice Stevens, concurring, accepted most of the analysis of the dissent but nonetheless came to the conclusion of invalidity. His argument was, essentially, that while either administrative convenience or a desire to remedy discrimination against female spouses could justify the use of a sex classification, neither purpose was served by the sex classification actually used in this statute.19
Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination. In Rostker v. Goldberg,20 rejecting presidential recommendations, Congress provided for registration only of males for a possible future military draft, excluding women altogether. The Court discussed but did not explicitly choose among proffered equal protection standards, but it apparently applied the intermediate test of Craig v. Boren. However, it did so in the context of its often-stated preference for extreme deference to military decisions and to congressional resolution of military decisions. Evaluating the congressional determination, the Court found that it has not been unthinking or reflexively based upon traditional notions of the differences between men and women; rather, Congress had extensively deliberated over its decision. It had found, the Court asserted, that the purpose of registration was the creation of a pool from which to draw combat troops when needed, an important and indeed compelling governmental interest, and the exclusion of women was not only sufficiently but closely related to that purpose because they were ill-suited for combat, could be excluded from combat, and registering them would be too burdensome to the military system.21
In Michael M. v. Superior Court,22 the Court expressly adopted the Craig v. Boren intermediate standard, but its application of the test appeared to represent a departure in several respects from prior cases in which it had struck down sex classifications. Michael M. involved the constitutionality of a statute that punished males, but not females, for having sexual intercourse with a nonspousal person under 18 years of age. The plurality and the concurrence generally agreed, but with some difference of emphasis, that, although the law was founded on a clear sex distinction, it was justified because it served an important governmental interest—the prevention of teenage pregnancies. Inasmuch as women may become pregnant and men may not, women would be better deterred by that biological fact, and men needed the additional legal deterrence of a criminal penalty. Thus, the law recognized that, for purposes of this classification, men and women were not similarly situated, and the statute did not deny equal protection.23
In a 1996 case, the Court required that a state demonstrate exceedingly persuasive justification for gender discrimination. When a female applicant challenged the exclusion of women from the historically male-only Virginia Military Institute (VMI), the State of Virginia defended the exclusion of females as essential to the nature of training at the military school.24 The state argued that the VMI program, which included rigorous physical training, deprivation of personal privacy, and an adversative model that featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing that women's admission would require accommodation such as different housing assignments and physical training programs, the Court found that the reasons set forth by the state were not exceedingly persuasive, and thus the state did not meet its burden of justification. The Court also rejected the argument that a parallel program established by the state at a private women's college served as an adequate substitute, finding that the program lacked the military-style structure found at VMI, and that it did not equal VMI in faculty, facilities, prestige or alumni network.
The Court in Sessions v. Morales-Santana applied the exceedingly persuasive justification test to strike down a gender-based classification found in a statute that allowed for the acquisition of U.S. citizenship by a child born abroad to an unwed couple if one of the parents was a U.S. citizen.25 The law at issue in Morales-Santana, which had been enacted many decades earlier, conditioned the grant of citizenship on the U.S. citizen parent's physical presence in the United States prior to the child's birth, providing a shorter presence requirement for an unwed U.S. citizen mother relative to the unwed U.S. citizen father.26
According to the majority, such a classification must substantially serve an important government interest today,27 and the law in question was based on two once habitual, but now untenable, assumptions: (1) that marriage presupposes that the husband is dominant and the wife is subordinate; (2) an unwed mother is the natural and sole guardian of a non-marital child.28 Having found that the law was an overbroad generalization about males and females and was based on the obsolescing view about unwed fathers,29 the Court concluded that the citizenship provision's discrete duration-of-residency requirements for unwed mothers and fathers who have accepted parental responsibility [was] stunningly anachronistic.30
In response to what the lower court had described as the most vexing problem in the case,31 the Morales-Santana Court, in crafting a remedy for the equal protection violation, deviated from the presumption that extension, rather than nullification of the denied benefit is generally the proper course.32 The Court observed that Congress had established derivative citizenship rules that varied depending upon whether one or both parents were U.S. citizens and whether the child was born in or outside marriage.33 Justice Ginsburg writing for the majority concluded that extending the much-shorter physical presence requirement applicable to unwed U.S. citizen mothers to unwed U.S. citizen fathers would run significantly counter to Congress's intentions when it established this statutory scheme because such a remedy would result in a longer physical presence requirement for a married U.S. citizen who had a child abroad than for a similarly situated unmarried U.S. citizen.34 As a result, the Court held that the longer physical presence requirement for unwed U.S. citizen fathers governed, as that is the remedy that Congress likely would have chosen had it been apprised of the constitutional infirmity.35
Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFleur,36 which was decided upon due process grounds, two school systems requiring pregnant school teachers to leave work four and five months respectively before the expected childbirths were found to have acted arbitrarily and irrationally in establishing rules not supported by anything more weighty than administrative convenience buttressed with some possible embarrassment of the school boards in the face of pregnancy. On the other hand, the exclusion of pregnancy from a state-financed program of payments to persons disabled from employment was upheld against equal protection attack as supportable by legitimate state interests in the maintenance of a self-sustaining program with rates low enough to permit the participation of low-income workers at affordable levels.37 The absence of supportable reasons in one case and their presence in the other may well have made the significant difference.
1. Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Goldfarb, 430 U.S. 199, 210–11 (1977) (plurality opinion); Califano v. Webster, 430 U.S. 313, 316–317 (1977); Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979); Massachusetts Personnel Adm'r v. Feeney, 442 U.S. 256, 273 (1979); Califano v. Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael M. v. Superior Court, 450 U.S. 464, 468–69 (1981) (plurality opinion); id. at 483 (Justice Blackmun concurring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The test is the same whether women or men are disadvantaged by the classification, Orr v. Orr, 440 U.S. at 279; Caban v. Mohammed, 441 U.S. at 394; Mississippi Univ. for Women v. Hogan, 458 U.S. at 724, although Justice Rehnquist and Chief Justice Burger strongly argued that when males are disadvantaged only the rational basis test is appropriate. Craig v. Boren, 429 U.S. at 217, 218–21; Califano v. Goldfarb, 430 U.S. at 224. That adoption of a standard has not eliminated difficulty in deciding such cases should be evident by perusal of the cases following.
2. In Frontiero v. Richardson, 411 U.S. 677 (1973), four Justices were prepared to hold that sex classifications are inherently suspect and must therefore be subjected to strict scrutiny. Id. at 684–87 (Justices Brennan, Douglas, White, and Marshall). Three Justices, reaching the same result, thought the statute failed the traditional test and declined for the moment to consider whether sex was a suspect classification, finding that inappropriate while the Equal Rights Amendment was pending. Id. at 691 (Justices Powell and Blackmun and Chief Justice Burger). Justice Stewart found the statute void under traditional scrutiny and Justice Rehnquist dissented. Id. at 691. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), Justice O'Connor for the Court expressly reserved decision whether a classification that survived intermediate scrutiny would be subject to strict scrutiny.
3. Although their concurrences in Craig v. Boren, 429 U.S. 190, 210, 211 (1976), indicate some reticence about express reliance on intermediate scrutiny, Justices Powell and Stevens have since joined or written opinions stating the test and applying it. E.g., Caban v. Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing the opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice Powell concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (Justice Stevens concurring); Caban v. Mohammed, 441 U.S. at 401 (Justice Stevens dissenting). Chief Justice Burger and Justice Rehnquist have not clearly stated a test, although their deference to legislative judgment approaches the traditional scrutiny test. But see Califano v. Westcott, 443 U.S. at 93 (joining Court on substantive decision). And cf. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734–35 (1982) (Justice Blackmun dissenting).
4. The test is thus the same as is applied to classifications based on whether a person was born out of wedlock, although with apparently more rigor when sex is involved.
5. Stanton v. Stanton, 421 U.S. 7 (1975). See also Stanton v. Stanton, 429 U.S. 501 (1977). Assumptions about the traditional roles of the sexes afford no basis for support of classifications under the intermediate scrutiny standard. E.g., Orr v. Orr, 440 U.S. 268, 279–80 (1979); Parham v. Hughes, 441 U.S. 347, 355 (1979); Kirchberg v. Feenstra, 450 U.S. 455 (1981). Justice Stevens, in particular, has been concerned whether legislative classifications by sex simply reflect traditional ways of thinking or are the result of a reasoned attempt to reach some neutral goal, e.g., Califano v. Goldfarb, 430 U.S. 199, 222–23 (1977) (concurring), and he will sustain some otherwise impermissible distinctions if he finds the legislative reasoning to approximate the latter approach. Caban v. Mohammed, 441 U.S. 380, 401 (1979) (dissenting).
6. Taylor v. Louisiana, 419 U.S. 522 (1975). The precise basis of the decision was the Sixth Amendment right to a representative cross-section of the community, but the Court dealt with and disapproved the reasoning in Hoyt v. Florida, 368 U.S. 57 (1961), in which a similar jury selection process was upheld against due process and equal protection challenge.
7.511 U.S. 127 (1994).
8. Craig v. Boren, 429 U.S. 190 (1976).
9.429 U.S. at 198, 199–200, 201–04.
10. 440 U.S. 268, 281 (1979).
11. 440 U.S. at 281–83. An administrative convenience justification was not available, therefore. Id. at 281 & n.12. Although such an argument has been accepted as a sufficient justification in at least some cases involving state action that distinguishes among people based on whether they were born out of wedlock, Mathews v. Lucas, 427 U.S. 495, 509 (1976), it has neither wholly been ruled out nor accepted in sex cases. In Lucas, 427 U.S. at 509–10, the Court interpreted Frontiero v. Richardson, 411 U.S. 677 (1973), as having required a showing at least that for every dollar lost to a recipient not meeting the general purpose qualification a dollar is saved in administrative expense. In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 152 (1980), the Court said that [i]t may be that there are levels of administrative convenience that will justify discriminations that are subject to heightened scrutiny . . . , but the requisite showing has not been made here by the mere claim that it would be inconvenient to individualize determinations about widows as well as widowers. Justice Stevens apparently would demand a factual showing of substantial savings. Califano v. Goldfarb, 430 U.S. 199, 219 (1977) (concurring).
12. Caban v. Mohammed, 441 U.S. 380 (1979). Four Justices dissented. Id. at 394 (Justice Stewart), 401 (Justices Stevens and Rehnquist and Chief Justice Burger). For the conceptually different problem of classification between different groups of women on the basis of marriage or absence of marriage to a wage earner, see Califano v. Boles, 443 U.S. 282 (1979).
13. Parham v. Hughes, 441 U.S. 347, 361 (1979). There was no opinion of the Court, but both opinions making up the result emphasized that the objective of the state—to avoid difficulties in proving paternity—was an important one and was advanced by the classification. The plurality opinion determined that the statute did not invidiously discriminate against men as a class; it was no overbroad generalization but proceeded from the fact that only men could legitimate children by unilateral action. The sexes were not similarly situated, therefore, and the classification recognized that. As a result, all that was required was that the means be a rational way of dealing with the problem of proving paternity. Id. at 353–58. Justice Powell found the statute valid because the sex-based classification was substantially related to the objective of avoiding problems of proof in proving paternity. He also emphasized that the father had it within his power to remove the bar by legitimating the child. Id. at 359. Justices White, Brennan, Marshall, and Blackmun, who had been in the majority in Caban, dissented.
14. Nguyen v. INS, 533 U.S. 53 (2001). See also Miller v. Albright, 523 U.S. 420, 424 (1998) (opinion of Stevens, J.) (concluding that a requirement in a citizenship statute that children born abroad and out of wedlock to citizen fathers, but not to citizen mothers, obtain formal proof of paternity by age 18 does not violate the equal protection component of the Fifth Amendment's Due Process Clause). Importantly, however, the Court in Sessions v. Morales-Santana distinguished Nguyen and Miller in ruling that a derivative citizenship statute for children born abroad and out of wedlock to a U.S. citizen and foreign national violated equal protection principles because the statute imposed lengthier physical presence requirements on citizen fathers than citizen mothers. See 137 S. Ct. 1678, 1694 (2017). Specifically, the Morales-Santana Court held that unlike the statute at issue in Nguyen and Miller, the physical presence requirement being challenged in Morales-Santana did nothing to demonstrate the parent's tie to the child and was not a minimal burden on the citizen parent. Id. at 1694. The Morales-Santana Court also concluded that, while the Court in Fiallo v. Bell, 430 U.S. 787 (1977), had applied a very deferential standard when reviewing gender-based distinctions in the context of alien admission preferences, a more exacting standard of review was appropriate when assessing the permissibility of such distinctions in the application of derivative citizenship statutes. Id. at 1693–95 (describing the Fiallo Court's ruling as being supported by the extremely broad power to admit or exclude aliens and concluding that heightened scrutiny was appropriate in the review of gender-based distinctions made by a derivative citizenship statute, which did not touch upon the entry preference for aliens governed by Fiallo).
15. Frontiero v. Richardson, 411 U.S. 677 (1973).
16. 420 U.S. 636 (1975).
17. 430 U.S. 199 (1977). The dissent argued that whatever the classification used, social insurance programs should not automatically be subjected to heightened scrutiny but rather only to traditional rationality review. Id. at 224 (Justice Rehnquist with Chief Justice Burger and Justices Stewart and Blackmun). In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980), voiding a state workers' compensation provision identical to that voided in Goldfarb, only Justice Rehnquist continued to adhere to this view, although the others may have yielded only to precedent.
18. 430 U.S. at 204–09, 212–17 (Justices Brennan, White, Marshall, and Powell). Congress responded by eliminating the dependency requirement but by adding a pension offset provision reducing spousal benefits by the amount of various other pensions received. Continuation in this context of the Goldfarb gender-based dependency classification for a five-year grace period was upheld in Heckler v. Mathews, 465 U.S. 728 (1984), as directly and substantially related to the important governmental interest in protecting against the effects of the pension offset the retirement plans of individuals who had based their plans on unreduced pre-Goldfarb payment levels.
19. 430 U.S. at 217. Justice Stevens adhered to this view in Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the unanimity of the Court on the substantive issue, although it was divided on remedy, in voiding in Califano v. Westcott, 443 U.S. 76 (1979), a Social Security provision giving benefits to families with dependent children who have been deprived of parental support because of the unemployment of the father but giving no benefits when the mother is unemployed.
20. 453 U.S. 57 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, Blackmun, Powell, and Stevens, and Chief Justice Burger. Dissenting were Justices White, Marshall, and Brennan. Id. at 83, 86.
21. 453 U.S. at 69–72, 78–83. The dissent argued that registered persons would fill noncombat positions as well as combat ones and that drafting women would add to women volunteers providing support for combat personnel and would free up men in other positions for combat duty. Both dissents assumed without deciding that exclusion of women from combat served important governmental interests. Id. at 83, 93. The majority's reliance on an administrative convenience argument, it should be noted, id. at 81, was contrary to recent precedent. See discussion of Orr v. Orr, supra.
22. 450 U.S. 464 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, and Powell, and Chief Justice Burger, constituting only a plurality. Justice Blackmun concurred in a somewhat more limited opinion. Id. at 481. Dissenting were Justices Brennan, White, Marshall, and Stevens. Id. at 488, 496.
23. 450 U.S. at 470–74, 481. The dissents questioned both whether the pregnancy deterrence rationale was the purpose underlying the distinction and whether, if it was, the classification was substantially related to achievement of the goal. Id. at 488, 496.
24. United States v. Virginia, 518 U.S. 515 (1996).
25. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1683 (2017) (holding that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons 'the equal protection of the laws.').
26. Id. at 1687–88 (describing 8 U.S.C. §§ 1401 & 1409 (1958 ed.)).
27. Id. at 9 (citing Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015)).
28. Id. at 1690–91.
29. Id. at 1692.
30. Id. at 1693. In so holding, the Morales-Santana Court rejected the government's argument that the challenged law's gender distinction helped ensure that the child born abroad and out of wedlock to a U.S. citizen and foreign national would have a strong connection with the United States. Id. at 1694–95. The government's argued that an unwed alien mother, on account of being the only legally recognized parent, would have a competing national influence upon the child that warranted the requirement that the U.S. father have a longer physical connection with the United States. Id. The Court concluded that the argument was based on the assumption that an alien father of a nonmarital child would not accept parental responsibility, a [l]ump characterization about gender roles that did not pass equal protection inspection. Id. at 1695. Moreover, even assuming that an interest in ensuring a connection to the United States could support the law, the Court held that the law's gender-based means could not serve the desired end because the law allowed for an individual with no ties whatsoever to the United States to become a citizen if his U.S. citizen mother lived in the country for a year prior to his birth. Id. at 1695–96.
The Court also rejected the government's argument that Congress wished to reduce the risk of statelessness for the foreign-born child of a U.S. citizen mother; an argument premised on the belief that countries are more likely to grant citizenship to the child of a citizen mother than to the child of a citizen father. Id. at 1696. The Court noted there was little evidence that a statelessness concern prompted the physical presence requirements, id. at 1696–97, and the Court also was skeptical that the risk of statelessness in actuality disproportionately endangered the children of unwed U.S. citizen mothers. Id. at 1697–98.
31. See Morales-Santana v. Lynch, 804 F.3d 521, 535 (2d Cir. 2015).
32. See Morales-Santana, slip op. at 25 (quoting Califano v. Westcott, 443 U.S. 76, 89 (1979)).
33. Id. at 2–4, 26.
34. Id. at 26 (For if [the] one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U.S. citizen parent is married?).
35. Id. at 27 (internal citations and quotations omitted).
36. 414 U.S. 632 (1974). Justice Powell concurred on equal protection grounds. Id. at 651. See also Turner v. Department of Employment Security, 423 U.S. 44 (1975).
37. Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied that the classification was based upon gender as such. Classification was on the basis of pregnancy, and while only women can become pregnant, that fact alone was not determinative. The program divides potential recipients into two groups – pregnant woman and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. Id. at 496 n.20. For a rejection of a similar attempted distinction, see Nyquist v. Mauclet, 432 U.S. 1, 9 (1977); and Trimble v. Gordon, 430 U.S. 762, 774 (1977). See also Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971). The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), now extends protection to pregnant women.
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