An Assault on the Fundamental Right to Parenthood and Birthright Citizenship: An Equal Protection Analysis of the Recent Ban of the Matrícula Consular in Texas’ Birth Certificate Application Policy

By Cathy Liu

Recent changes in Texas’s birth certificate application policy have made it nearly impossible for hundreds — and perhaps thousand — of undocumented immigrants to obtain birth certificates for their U.S.-born children. The Texas Department of State Health Services (DSHS) has implemented a policy banning state registrars from accepting the matrícula consular (matrícula) as an identifying document applicants may present as part of the state’s birth certificate application process. Matrículas are consular identification cards issued by Mexican consulates to citizens of Mexico living outside of the country. They are widely-accepted as a reliable form of identification and are often the only identification available to undocumented immigrants. Without alternative forms of ID, undocumented parents cannot satisfy the policy’s identification verification procedure and consequently cannot obtain birth certificates for their children.

Undocumented parents lacking birth certificates for their children cannot fully access their fundamental right to parenthood, which includes the right to make decisions on how best to raise and care for their children. Enrolling a child in schools and daycare and obtaining public benefits like Medicaid and Section 8 housing assistance all require presentation of that child’s birth certificate. In addition, although the children affected by the changes are citizens by virtue of being born in the U.S., they cannot fully exercise their rights as citizens, including the right to travel interstate, to receive a public education as well as the right to work. Furthermore, the policy may, in some instances, have the effect of denaturalizing U.S.-born children, thereby depriving them of their statuses as U.S.–citizens.

This Note provides an Equal Protection analysis of Section 181, the provision of the Texas Administrative Code that codifies this new policy. Part I explains the recent changes in Texas’ birth certificate application procedures. Part II provides an overview of the Equal Protection Clause. Parts III through V argue that the new Texas policy violates the Equal Protection Clause. This Note first argues that strict scrutiny is the appropriate standard of review in analyzing the constitutionality of the policy. It then argues that the policy fails to survive strict scrutiny review because it fails to further a compelling state interest, is underinclusive in its attempt to prevent fraud, and because less discriminatory alternatives can as effectively deter identity crimes and fraud.

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