Ruth Bader Ginsburg, Gender Equality, and the Curious Case of Sessions v. Morales-Santana

News coming out of the U.S. Supreme Court last week was dominated by the decision of the Court to take on partisan gerrymandering. It is long overdue and the legal challenge to Republican-drawn state assembly maps in Wisconsin could deliver a landmark precedent. But another decision almost got overlooked, and it is a fascinating decision. In large part because it opens a new window on one of the Court’s most fascinating Justices: Ruth Bader Ginsburg.

Writing for the Court in Sessions v. Morales-Santana, Justice Ginsburg explained that “discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.” As a result, if an unwed mother can transmit her U.S. citizenship to her child born overseas as long as she herself has lived in the United States for at least one year, it is unconstitutional to ask of unwed fathers a pre-birth residency requirement of five years.

“You are taking the place of a man.”

Nothing surprising so far, especially when we know Justice Ginsburg’s position on gender equality, developed long before she joined the Supreme Court. The actual result of the case is more troubling, however, as extending the residency requirement for unmarried fathers to unmarried mothers resulted in stripping Morales-Santana of his citizenship, putting him at risk of being deported.

This prompted many to criticize this decision, calling it a hollow triumph — a win for theoretical equality at the expense of real justice. And this will resonate with a lot of people who have been victims of gender-based discriminations. It’s true that laws can exist on paper, but reality on the ground can be very different. And it’s hard to argue otherwise.

Yet, let’s not be too quick to dismiss Justice Ginsburg’s reasoning and its unintended consequences. First, she doesn’t need anyone to defend her decision; she does it herself very well. Second, the history of the Court is full of “unfortunate” decisions. Only time will tell if this decision will advance the cause of gender equality, and time has been on Justice Ginsburg’s so far. But what this decision really shows (and teaches us) is the human character of those whose job it is to judge others.

I know this will sound old-fashioned (even perhaps improbable) to younger generations.

Ruth Bader Ginsburg began her career at a time when women in the United States could legally be denied jobs, credit, even a place on a jury. She was one of nine women in a Harvard Law School class of nearly 600, only to find herself being told by the Dean of the Law School at a social event one day that she was “taking the place of a man.” Years later, she recalled telling him, to her lifelong astonishment, that “It is important for a wife to understand her husband’s work.”

I know this will sound old-fashioned (even perhaps improbable) to younger generations. I’m one of them. But we don’t know what these fierce and intelligent young women had to go through. And as a husband and father of two, including a young daughter, I can see what my female colleagues still have to endure in the workplace, day in and day out.

In 2009, Ruth Bader Ginsburg went to Rutgers, where she once taught law, to talk about the Role of Women in Reshaping American Law. And she said, “Having grown up in years when women, by law or custom, were protected from a range of occupations, including lawyering, and from serving on juries, I am instinctively suspicious of women-only protective legislation.”

Justice Ginsburg knows what she’s talking about. She has a plan. Let’s make sure that young girls growing up in today’s world never have to face the same discriminations again.


Christophe Larouer has been developing thought leadership and strategic narratives for high-level government and business leaders for over a decade. The content of this communication is entirely my own and does not reflect the opinions of or endorsement by any federal agency or the government as a whole. You can also follow me here.