| MacKenzie v. Hare | |
|---|---|
 | |
| Argued November 11–12, 1915 Decided December 6, 1915 | |
| Full case name | MacKenzie v. Hare et al., Board of Election of San Francisco |
| Citations | 239U.S.299 (more) 36 S. Ct. 106 |
| Holding | |
| TheExpatriation Act of 1907 validly dictated that an American women's marriage to a foreign national constituted a voluntary renunciation of her citizenship. | |
| Court membership | |
| |
| Case opinions | |
| Majority | McKenna, joined byunanimous |
| Concurrence | McReynolds |
| Laws applied | |
| Citizenship Clause andExpatriation Act of 1907 | |
Superseded by | |
| Cable Act | |
Mackenzie v. Hare,239 U.S.299 (1915), is aUnited States Supreme Court case that upheld Section 3 of theExpatriation Act of 1907, which dictated that all American women who voluntarily married aforeign alienrenounced their American citizenship. While the statute has since been repealed, this case remains significant because of its precedent thatCongress can designate acts which serve as implied voluntary renunciation of one's American citizenship.
TheExpatriation Act of 1868 recognized a right forUS citizens torenounce their citizenship, rather than being bound by thefeudalcommon law concept of perpetual allegiance to their home country. Section 3 of theExpatriation Act of 1907 dictated that American women would lose their citizenship if they married aforeign alien under theEnglish common law concept ofcoverture, which deems the legal existence of women merged into their husband upon marriage.[1]
In January 1913, after the1911 California Proposition 4 granted women the right to vote in the state's elections, but before the 1920Nineteenth Amendment to the US Constitution prohibitedsex-based denial ofvoting rights for US citizens, Ethel C. MacKenzie tried registering to vote inSan Francisco,California, the state in which she was born and had always lived within.[2]
The San Francisco Board of Election Commissioners rejected her application because in August 1909, Ethel MacKenzie married Scottish singer Peter Gordon MacKenzie. Since her husband was a British citizen, the marriage was deemed a voluntary renunciation of Ethel MacKenzie's American citizenship under the Expatriation Act of 1907.[2]
MacKenzie unsuccessfully petitioned the California state courts for a writ ofmandamus to compel the San Francisco Board of Election Commissioners to accept her voter registration application. After theSupreme Court of California denied MacKenzie's petition in a decision written by then-Associate JusticeLucien Shaw, she appealed its judgement to the Supreme Court of the United States.[3] In her brief, MacKenzie argued that the ongoingWorld War I conflict highlighted the benefit of tying one's citizenship to their country of residence, rather than basing a women's citizenship on the status of her husband.[4]
During oral arguments held on November 11 and 12, 1915, Ethel MacKenzie's lawyer, Wilbur T. U'Ren, argued that congressional records show that Section 3 of the Expatriation Act of 1907 was only meant to apply to women residing outside the United States. Citing various federal and state court decisions, U'Ren contended that Americans can only renounce their citizenship when they are voluntarily or involuntarily removing themselves from the United States' jurisdiction. Additionally, even if Section 3 applied to MacKenzie, U'Ren claimed that theCitizenship Clause of theFourteenth Amendment to the US Constitution dictated that the act was void for infringing on herbirthright citizenship.[5]
Furthermore, U'Ren cited the Supreme Court's 1856 decision inDred Scott v. Sandford, which found that theMissouri Compromise's creation of free states that assigned African-Americans rights equivalent to those of White American citizens did not confer implied US citizenship on these Black individuals. Conversely, MacKenzie's act of marriage to an alien could not act as an implied voluntary renunciation of her birthright citizenship.[5]
San Francisco City AttorneyPercy V. Long cited theNapoleonic Code and laws of theNetherlands,Ottoman Empire, andRussian Empire to argue that treating marriage as a transfer of allegiance is a widely adopted legal principle. In response, U'Ren argued that the Supreme Court's 1898 decision inUnited States v. Wong Kim Ark, which found that theinternational law circumstances of Chinese nationals being subjects of theEmperor of China was irrelevant to upholding the birthright American citizenship of their children born within the United States, should dictate that the international law concerns of alien husbands affecting the allegiance of American women was similarly irrelevant to upholding their birthright American citizenship.[5]
In May 1874, PresidentUlysses S. Grant's only daughter,Nellie Grant, married British citizen Algernon Sartoris at theWhite House, and the couple immediately traveled to live inSouthampton,England.[6] Pursuant to a May 1870 treaty with theUnited Kingdom, the United States considered all Americans that became British citizens and resided within British jurisdiction to have voluntarily renounced their American citizenship. Such individuals could only reacquire their American citizenship by returning to live within the United States and reapplying for naturalization.[7] In his December 1876State of the Union message to Congress, President Grant highlighted "the necessity of legislation concerning the marriages of American citizens contracted abroad, and concerning the status of American women who may marry foreigners."[8] After Algernon Sartoris' 1893 death, Nellie Grant returned to the United States but was ineligible for any of the pathways to reacquire her American citizenship.[9] In honor of her father's military and political service, the55th United States Congress passed Joint Resolution 36 in May 1889, reestablishing her citizenship.[10][11]
President Grant's request for Congress to address the citizenship of American women that married foreigners was cited by the San Francisco Board of Election Commissioners as proof that Congress had the authority to designate such marriages as a voluntary renunciation of American citizenship. Conversely, Nellie Grant's case was cited as evidence that the United States only interpreted marriage to an alien husband as a voluntary renunciation of the wife's American citizenship if she resided outside the United States' jurisdiction.[5]
In a unanimous decision issued on December 6, 1915, Associate JusticeJoseph McKenna rejected all of MacKenzie's arguments, maintaining the Supreme Court of California's denial of her voter registration application. First, McKenna opined that for statutorily unambiguous provisions, courts should ignore arguments for alternative readings based onlegislative intent on the assumption that the final text accurately reflects the views of its creators. Second, the Supreme Court held that under theNecessary and Proper Clause, Congress has an implied power to embrace the long-standing legal principle of coverture in its regulation of naturalization. Third, while MacKenzie remained within the United States' borders, voluntarily marrying an alien husband was considered sufficiently analogous toexpatriation.[5]
Prior to the Expatriation Act of 1907 explicitly embracing coverture, the Supreme Court had discarded the concept in its jurisprudence. In the 1830 caseShanks v. Dupont, which occurred prior to the 1868 enactment of the Fourteenth Amendment, the Supreme Court ruled that "marriage with an alien, whether friend or enemy, produces no dissolution of the native allegiance of the wife."[12] In a 1901 treatise on the Fourteenth Amendment,West VirginiaSupreme Court of Appeals JusticeHenry Brannon observed that federal and state courts only interpreted American women marrying aliens as a voluntary renunciation of their citizenship when they resided outside the United States.[13]
Associate JusticeJames Clark McReynolds concurred with the judgement but opined that the federal Supreme Court should have dismissed MacKenzie's appeal of the Supreme Court of California's decision because federal courts lacked jurisdiction to address the right to vote in state elections under a state constitutional amendment.[5]
In codifying coverture, Section 4 of the Expatriation Act of 1907 granted American citizenship to the alien wives of American citizens upon marriage.[1] This provision had been interpreted as allowing women stripped of their American citizenship under Section 3 to regain it if their husband underwent naturalization in the United States. In response to the Supreme Court's decision, Ethel MacKenzie urged her husband to apply for American citizenship in March 1916, ultimately regaining her own citizenship through this process.[14]
Aside from recovery of one's American citizenship under Section 4 of the Expatriation Act of 1907, Section 3 allowed women to reclaim their American citizenship upon the termination of their marriage by either reapplying for citizenship at aUnited States consulate within one year or residing within the United States.[1] Responding to protests bysuffragettes, such as Ethel MacKenzie herself, the 1922Cable Act amendedUnited States nationality law to dictate that women would retain their citizenship upon marriage to an alien as long as their husband was eligible to become a citizen.[15][16] Until theImmigration and Nationality Act of 1965, males could be denied citizenship on the basis of their race, and there are still variousideological restrictions on naturalization in American law.[2]
The Supreme Court has repeatedly questioned its verdict in this case, such as its 2017 decision inSessions v. Morales-Santana, which rejected sex-based differences in the residency requirement for unmarried parents to pass on their American citizenship to children born abroad. In that case, the Supreme Court cited itsMackenziedecision as reflective of "the once entrenched principle of male dominance in marriage," which it considered rejected by its 1979 decision inCaban v. Mohammed striking down such sex-based discrimination under the Fourteenth Amendment'sEqual Protection Clause.[17] Similarly, Associate JusticeHugo Black's concurring opinion inNishikawa v. Dulles regarded theMackenzie decision as applying principles "inconsistent with the Constitution and cannot be regarded as binding authority."[18]
In its 1958Perez v. Brownell decision, the Supreme Court cited this case to uphold Section 401 of theNationality Act of 1940, which considered voting in a foreign election and remaining outside of the United States in wartime to avoid military service as voluntarily renunciations of American citizenship.[19] However, the Supreme Court's 1967 verdict inAfroyim v. Rusk overturned that decision and struck down Section 401, ruling that while such acts suggested a voluntary transfer of allegiance to another country, the Citizenship Clause prevents Congress from expanding the scope of voluntary renunciations of American citizenship beyond actual declarations of expatriation.[20]