(Crossposted at Family Scholars Blog, TADA and Alas.)
The Supreme Court will hear oral arguments in Flores-Villar v. United States on November 10th.
The case involves Ruben Flores-Villar, whose father — but not mother — is an American. Ruben was born in Mexico in 1974 and moved to the US when he was two months old. He was declared an “illegal immigrant” and deported from the US in 2006, after being convicted of marijuana possession.
Children born overseas who have one U.S.-citizen parent can obtain U.S. citizenship if the citizen parent had been physically present in the U.S. for a certain period of time before the child’s birth. If the citizen parent is the father, the period is five years; if it is the mother, the period is one year. Does this differentiation violate the Equal Protection Clause?
The law’s requirements are even stricter than that summary admits, because the five-year requirement only counts years after the father turns 14. So for Ruben Trinidad Floresvillar-Sandez, who was only 16 years old when Ruben Jr. was born, it was literally impossible for him to pass his US citizenship onto his son.
To me, this seems like an obvious case of sex discrimination against men, and the Court should find it unconstitutional. As the National Women’s Law Center wrote in their amicus brief (pdf link):
The government’s decision to impose a greater burden on unmarried fathers than unmarried mothers perpetuates the stereotype that unmarried fathers always have less meaningful relationships with their children than unmarried mothers. This Court has rejected the use of such stereotypes to justify gender-based distinctions, even if they have some basis in fact. If the stereotype that unmarried fathers are always absent and uninvolved were ever true, it is not true today. And that stereotype cannot justify treating fathers who have taken steps to establish a relationship with their children differently from mothers.
The government’s stated purpose in having lower requirements for mothers is to prevent children from being born who are “stateless” — legal citizens of no country at all. However, the current law can actually create stateless children, as the “Brief for Scholars on Statelessness in Support of Petitioner” argues (pdf link):
…the evidence about the factors relevant to statelessness demonstrates that the risk of parenting stateless children abroad [is] substantial for unmarried U.S. fathers, a risk equal to or perhaps greater than that for unmarried U.S. mothers.
Those factors include not only the citizenship/nationality laws of other countries but also a factor ignored by the government–the existence of large populations of stateless women abroad. The relevant data suggest that the special residence requirements for U.S. fathers in the Statute at Issue may have enlarged in the past, and may continue today to enlarge, the total pool of stateless children by making it more difficult (and in some cases, such as this one, impossible) for U.S. fathers who have undertaken the burdens of establishing paternity and providing financial support to pass on their U.S. citizenship to their non-marital children born abroad.
It’s unjust to fathers — and certainly unjust to people like Ruben Flores-Villar — for this law to treat fathers as less than mothers.
UPDATE: For a background on the legal arguments, see Constitutional Law Prof Blog.