Legal Analysis of the California Ballot Initiative for New Caste of Birth Certificates

Some legal analysis by Jonathan Gingerich of the new caste of birth certificates for children of undocumented people proposed in California.

• Anyone born in the U.S. (and subject to US jurisdiction, so not children of foreign diplomats, prisoners of war, invading enemies) is a citizen under the 14th amendment section 1 citizens clause. Citizenship in the U.S. is an issue of federal law, so California couldn't do anything about that even if it weren't constitutionalized.

• Can a state deny a birth certificate to a citizen born in the U.S.? California can't claim that the children are US citizens but not California citizens, because the citizenship clause says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"
  

• I suppose the state has an argument that the restrictions are imposed on the parents, not the child. But that seems doubtful. Birth certificates are necessary to exercise so many of the rights that accompany U.S. citizenship. In the long run, birth certificates are probably more important to children than to the parents.

• I think the question may be: under the equal protection clause, can the state make it harder to get a birth certificate for a certain class of citizens because that class of citizens has non-citizen parents? The supreme court has subjected classifications based on alienage to heightened scrutiny, and it is hard to see how this would pass rational basis review (what is the legitimate government interest?) much less any form of heightened scrutiny.

• A much closer question would be if California sought to impose these requirements on all infants. This would then be a case of disparate impact on children of non-citizens, rather than disparate treatment. My view is that it would still be unconstitutional, and there is some chance that it would still fail rational basis review under due process, but such a uniform burden might well pass muster with the current SCOTUS. Nevertheless, California isn't going to do that.
  

• Unrelated: also raises equal protection gender questions (and perhaps race questions too, not facially, but as applied). What if the father isn't present?

• There might be separate equal protection issues under California's constitution, which the state courts have often interpreted creatively (and progressively).