In an important immigration/citizenship equal protection case involving gender discrimination against U.S.-citizen fathers, the U.S. Supreme Court on June 12, 2017, rendered a decision that extensively cited and quoted an amicus brief written and filed by Cleary Gottlieb.
Since at least 1940, congressional legislation imposed dramatically higher residency requirements for achieving U.S. citizenship upon non-marital children born abroad of U.S.-citizen fathers than upon such children born of U.S.-citizen mothers, a discriminatory practice that has been challenged by women’s rights advocates for decades under the Equal Protection Clause. In 2010 and 2016, Cleary represented as amici a group of scholars on the subject of “statelessness,” as one of the government’s principal asserted justifications for the discrimination worked by the legislation has been that treating U.S. mothers more liberally than U.S. fathers would reduce the risk of statelessness for these children.
In the 2010 Villar-Flores case, the Supreme Court divided equally and therefore did not issue an opinion. Cleary’s amicus brief on behalf of the statelessness scholars in that case included an unusual appendix that surveyed the law from about 100 nations, because the citizenship status of non-marital children necessarily turns on the interaction of U.S. law and the law of the other parent’s home country.
In the 2016 Morales-Santana case, Cleary was required not only to update that extensive appendix to the brief, but also to expand significantly the arguments on behalf of the 10 scholars the firm represented, since the government had introduced brand-new contentions relating to statelessness.
Writing for herself and five other justices, Justice Ruth Bader Ginsburg, in an opinion holding that the legislation violates the Equal Protection Clause, sharply rejected all of the government’s statelessness arguments. In nearly three pages of discussion, the opinion relied substantially on the statelessness scholars’ amicus brief to provide the needed “reality check.” The amicus brief showed in detail how “the formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child” made it as likely or more likely that the legislated discrimination would exacerbate statelessness, not reduce it.