Federalism, families and citizenship

In many countries, laws determining birthright or later derivative citizenship status rely exclusively or partially on the concept of ius sanguinis, requiring qualifying family-relationships in order to transmit citizenship to children. Yet the definitions of those relationships are not always clear or uniform, thereby fracturing the legal and social identities of individuals and families, which are recognized for some purposes, but not for others. Family-based citizenship by descent sits at the intersection of family law and immigration and nationality law. This is not problematic in the many countries that regulate these issues consistently at the same level of government. In those States, family relationships will be treated similarly for purposes of family law, immigration law, and citizenship by descent. But there are major exceptions to this consistent treatment of family relationships, including the laws of the United States. The U.S. and some other federal States generally determine family status at the regional (state or provincial) level, while separately determining recognition of family status for immigration and nationality purposes at the federal level. This results in untenable situations for some parents and children, whose relationships are invisible under these important federal laws although they are recognized for most other purposes under regional law. This legal discrepancy creates fractured self-identities and fractured family relationships. For instance, the mixed-status of U.S. families (including both citizens and undocumented migrants) has significant social and psychological effects on family members, sometimes undermining the policies of family unity and the best interests of children. This can fracture an individual’s identity as a citizen, a community-member, and a family-member. And the alienating message that one’s family is officially, politically, and socially disfavored may be even greater for those already stigmatized by increasingly common nontraditional family situations. Modern family law has been grappling with rapid developments in technology and increasingly complex private familial arrangements. Now some, but not all, jurisdictions recognize de facto partners, registered partners and same-sex spouses parenting children, including adopted children and children conceived through various forms of assisted reproductive technology (A.R.T.). Immigration and nationality laws in the U.S. and other countries have lagged behind family law in this area, and this complexity is multiplied when cross-border issues are involved. This paper will compare the laws of the United States with those of other federal States that legally define parent-child status differently for immigration, nationality and other purposes. It will analogize and distinguish among the public policies underlying family law and immigration and nationality law when defining family-based relationship status, determining how each policy complements or contradicts the others. This will raise issues regarding identity formation, political goals, constitutional structures, and moral concerns. In the end, the paper will suggest ways to harmonize the differences in status within robust federal systems.