Throughout the history of Europe and its former new world colonies, families have been a central unit for defining legal rights and duties, including those related to citizenship and immigration. Less than a century ago, a woman and her children automatically gained or lost citizenship in the U.S. and many other countries upon her marriage to a citizen or noncitizen. The family was treated as one unit reflecting the legal identity of the father-husband as “head of family.”
Fortunately, the United States and other governments have increasingly recognized women – and, to a lesser extent, children – as independent persons with separate identities under the law. Women no longer lose their U.S. citizenship when they marry foreign men, and children born out of wedlock now may inherit their parents’ citizenship. However, the move away from a patriarchal legal definition of family has coincided with decreasing respect for marital and family unity as a basis for citizenship and immigration rights. While family unification remains a loadstar for immigration law, it already has been limited in numerous ways. The President of the United States and many members of Congress currently propose to limit it further.
State legal definitions of family have become more liberal and egalitarian over time. In general, the formal rules regulating marriage are now gender neutral, and states now recognize biracial spouses, same-sex spouses, and, increasingly, de facto family relationships. While moving more slowly than state family law, federal birthright citizenship law also has liberalized its recognition of family status. But it has continued to limit family recognition to legal relationships, such as marriage and presumed parentage, and to biological parent-child relationships. De facto “parents” or “spouses” are not recognized. At the same time, it has begun focusing much more on biology, and family unity has been eroded as an inviolable principle.
Three important forces have contributed to the trend deemphasizing family unity in the context of immigration and citizenship: (1) popular immigration restrictionism with significant racist and xenophobic elements; (2) the administrative desire for clear and simple definitions; and (3) the continuing popular desire for family unity. These forces help explain the trends introduced above.
Decreasing racial obstacles to the use of family-based citizenship and immigration has changed the complexion of families being united, which may partially explain current proposals to dramatically cut family-based immigration. In light of the administrative interest in certainty and simplicity, technological developments such as genetic testing explain the shift from a traditional focus on legal and presumed paternity to the new focus on biological parentage, particularly in cases stemming from the use of assisted reproductive technology (ART). Finally, the history summarized below demonstrates a paradigm shift from a view of immigrant families as a single unit legally reflecting the husband-father who heads it, to a view of immigrants as sometimes-related individuals, each of whose immigration and citizenship status will be assessed independently.
There is a great deal worth discussing about the liberalization of the definition of family membership and the coinciding de-emphasis on family-based immigration. But I will focus today on family-based citizenship acquisition, particularly on jus sanguinis automatic citizenship transmission from U.S. citizen parents to their children born abroad. (The Fourteenth Amendment clarifies the citizenship of almost everyone born on U.S. soil, so jus sanguinis citizenship is limited to children born abroad.) I will illustrate changes in this area, with three simplified snapshots in time: 1865, 1920, and today.
Scott Titshaw, Throwing the Baby Out with the Patriarchy, 33 Berkeley J. Gender L. & Just. 179 (2018).