Law

Ginsburg's Surprisingly Retro Feminism

The justice's anti-discrimination ruling this week follows her usual script but in the end burdens women.

An icon, to be sure.

Photographer: Andrew Harrer/Bloomberg

At 84, Justice Ruth Bader Ginsburg is a feminist icon -- and a figure of adulation to the young women who’ve nicknamed her the Notorious RBG. But is her 1970s version of feminism actually the one embraced by her fans today?

That question is put front and center by a new opinion she authored that fits squarely into the classic Ginsburg paradigm. The law under review made it easier for female U.S. citizens living abroad to pass on citizenship to their children than for male citizens. Ginsburg said the difference was unconstitutional. But she didn’t extend the women’s benefit to men: She took it away from women, leaving a much harsher law that seriously burdens passing on citizenship for both sexes equally.

Chief Justice John Roberts joined the opinion happily. Justices Clarence Thomas and Samuel Alito concurred in the result. No justice dissented. Woke this decision wasn’t.

To understand where Ginsburg’s rather harsh ruling comes from, you have to start with her pioneering efforts to litigate women’s rights issues on behalf of the American Civil Liberties Union when she was a law professor at Rutgers and then Columbia. In a series of carefully chosen, brilliantly argued cases before the Supreme Court, Ginsburg persuaded the justices to strike down laws that overtly treated men and women differently.

Frequently, the laws that she challenged treated women better than men, not worse. Ginsburg liked to bring her cases representing male plaintiffs, which both changed the atmospherics and brought home that the equality between the sexes wasn’t just a women’s issue.

The legal principle behind her efforts, which the court eventually adopted, was that laws must not rely on or embody generalizations or stereotypes of what we would now call male or female gender roles. 1  Thus, when a law purported to give women some advantage, Ginsburg consistently argued that the advantage was unjustified.

As a concrete example, take the law at issue in Sessions v. Morales-Santana, the case Ginsburg  ruled on this week. The Immigration and Nationality Act says that for a married couple of which only one parent was a U.S. citizen to pass along that citizenship to a child born outside the U.S., the citizen parent must have lived in the U.S. for at least 10 years, five of them after the age of 14.

If the parents are unmarried, and the U.S. citizen is the father, the same rule applies.

But if the mother is the U.S. citizen, Congress made a different rule. Her child can become a citizen at birth if she has lived for one continuous year in the U.S. at any point in her life.

In defense of the law, the federal government argued that it was justified by Congress’s desire to be sure that a child born outside the U.S. has a strong connection to the country. The government also suggested that Congress may have been worried about creating stateless children in case other governments declined to pass down citizenship from unmarried fathers.

To Ginsburg, however, Congress’s action on behalf of the citizenship interests of women living abroad was a perfect example of the stereotyping she has fought against as a lawyer and justice. Citing a raft of cases that she argued and authored, she held that the difference relied on “overbroad generalizations about the different talents, capacities, or preferences of males and females.”

In particular, Ginsburg reasoned, the motive that “lurks” behind the law was the assumption that “in marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.”

In her telling, Congress assumed that the noncitizen father of a child born out of wedlock wouldn’t be around, and so wouldn’t influence the child to feel un-American.

That could be true, of course. But it’s also possible that the exception for unwed mothers was motivated by the desire to allow them to return to the U.S. more easily, perhaps on the assumption that they would need support from U.S.-based families more than married mothers or unwed fathers.

To Ginsburg, that wouldn’t much matter -- it would still be based on an illegitimate “generalization” that the mother was the “natural guardian.”

Then came Ginsburg’s kicker. Having held the inequality between the sexes unconstitutional, she declined to say that the children of unwed U.S. citizen fathers must have the same rights as those of unwed U.S. citizen mothers. Reading Congress’s mind, she said that the provision favoring unwed mothers was an exception to the general rule. So she struck down the exception, leaving the rule in place.

As a result, Luis Ramon Morales-Santana, whose father had been just 20 days shy of meeting the residency requirements, lost his bid for U.S. citizenship. He’s the accidental victim of the greater anti-stereotyping principle that Ginsburg’s opinion applied.

Is this what feminism means today? We can all agree that stereotyping is problematic. But if Congress wanted to make life easier for unwed mothers, does feminism necessarily consider that a violation of equal protection, notwithstanding the motive?

And in 2017, is it still necessary to cap off an equal protection decision by disadvantaging women relative to men, the way Ginsburg’s opinion ultimately does?

Finally, does feminism care about immigration rights? In theory, Congress could change the law to give men and women the same advantages previously enjoyed by women. But that seems effectively impossible in the current political environment regarding immigration and citizenship. In the name of equality, Ginsburg has now effectively reversed the citizenship of some unknown number of people who thought they were U.S. citizens.

These aren’t questions that can be answered in a single column. But they deserve to be raised -- no matter how iconic RBG has become.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. The now familiar distinction between “sex” and “gender” can’t be found in these cases, or in Ginsburg’s briefs. She used the term “gender discrimination” instead of “sex discrimination” at the advice of her secretary, who told her that she should avoid using the word “sex” in the presence of nine male justices.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net

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