Supreme Court To Hear Discrimination Against Fathers Case

(Crossposted at Family Scholars Blog, TADA and Alas.)

Italian Dad Reunited

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.

From ScotusBlog:

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.

This entry posted in crossposted on TADA, Feminism, sexism, etc, Immigration, Migrant Rights, etc, Men and masculinity, Sexism hurts men, Supreme Court Issues. Bookmark the permalink. 

20 Responses to Supreme Court To Hear Discrimination Against Fathers Case

  1. 1
    Dianne says:

    Why is this law necessary at all? Why shouldn’t children of US citizens be citizens themselves* regardless of how much time the parent has spent in the US recently?

    *If they want to be. Some may chose otherwise anyway.

  2. 2
    gin-and-whiskey says:

    Dianne,

    It’s worth reading the brief of the U.S. for an explanation. It’s not complex and makes for a great read.

  3. 3
    Robert says:

    @Dianne -

    Because we didn’t want every byblow of GIs stationed overseas to be citizens.

  4. 4
    Dianne says:

    Because we didn’t want every byblow of GIs stationed overseas to be citizens.

    Why not? “We” conceived them. By putting GIs in other parts of the world, the US has set up the situation in which they will become co-parents with people of various other nationalities. Why shouldn’t we…I believe the phrase is “man up” and acknowledge and care for the children that exist only because the US likes to pee on other countries?

    Also this is another example of sexism: I’m willing to bet that the offspring of any female GI who gets pregnant is considered a US citizen, no matter how long she’s been out of the country.

  5. 5
    Myca says:

    Because we didn’t want every byblow of GIs stationed overseas to be citizens.

    Ahhhh, yes.

    There’s that much-vaunted conservative ‘responsibility’ and ‘family values’ I’ve heard so much about.

    Delicious!

    —Myca

  6. 6
    Felidaeus says:

    [Felidaeus' comment was moved to TADA by moderator. --Amp]

  7. 7
    gin-and-whiskey says:

    Dianne says:
    10/12/2010 at 9:14 am

    Because we didn’t want every byblow of GIs stationed overseas to be citizens.

    Why not? “We” conceived them.

    Just because.

    Yes, that’s a real response: It seems pretty clear that there is no particular objectively best reason for ANY citizenship scheme.* The whole world is a mishmash of different ones for different countries (and people and classes of people within those countries,) each providing different pros and cons and benefits. You have to choose something. And when you do, you have to take into account the effects locally and internationally as well.

    It is complex; if this seems like a black and white issue, then in all likelihood you don’t understand enough background. Mind you, people can have good reasons to support any of the schemes, but getting there isn’t as simple as “why not” or “well, it seems anti-conservative so I’ll support it.”

    And FWIW, nobody in this case seems to be suggesting that these are minor decisions. They only disagree about the outcomes.

    really, read the US brief; it gives the best summary.

    *The objectively ideal situation would probably be that all of the world’s countries could agree to adopt a single system. But that isn’t happening.

  8. 8
    RonF says:

    I’m not familiar with the law. But from a philosophical viewpoint my opinion is that any child with at least one parent who was an American citizen at the time of their birth should be considered an American citizen regardless of their place of birth.

  9. 9
    RonF says:

    With regard to Robert’s comment and the commentary offered on it – it would be nice to see some facts to back it up rather than just presuming it’s true because it fits your view of American culture.

  10. 10
    Robert says:

    It’s common sense to have had a gender distinction in the law back in the day when paternity test meant holding the baby up to the father in a good light and gauging whether the ears looked about the same.

    Anybody can say “my dad was a GI” and, absent today’s technology, there’s no way to say aye or nay. Most people can prove who their mother was relatively easily just through testimony of people who saw them come out, or heard about it at the time. Dads are a lot trickier.

    So it was purely pragmatic, Dianne. We couldn’t prove that people were or weren’t the kids of male GIs (or sailors or traders or adventurers or whatever in decades past), so a claim of American paternity wasn’t worth much.

  11. 11
    Dianne says:

    So it was purely pragmatic

    Gewesen.

    Hmm…maybe this comment could stand a little expanding. There used to be a need to discriminate this way back when genetic testing was non-existent. There is no longer a need. Why not update the law to the tech?

  12. 12
    Thene says:

    G&W: thanks for pointing us at that brief. It’s interesting that the USA is challenging Flores-Villar’s standing to claim equal protection on the grounds that it’s a third party – his father, not him – who’s being discriminated against. That’s framing citizenship as something that one has the right to confer, not the right to claim. Common sense would suggest that the reason Flores-Villar’s father isn’t the one asking for equal protection is that he’s not the one who’s suffering from the lack of it!

    The constitution gives Congress the authority ‘To establish a uniform Rule of Naturalization’ but one rule for women and a different rule for men is not uniform and I don’t see how it could be said to be so.

    (It struck me that the same standard doesn’t seem to apply in cases of racial discrimination; discriminating against someone on the basis of their parents’ ethnicity is seen as racist, because racial discrimination is seen as something that’s passed on by heredity; isn’t it clear that in this case gender discrimination is operating in the exact same way?)

  13. 13
    gin-and-whiskey says:

    There are very distinct questions here:
    1) Is it ethical?
    2) Is it justifiable, and why?
    3) Does Congress have the right to set those restrictions?
    4) If so, are Congress’ decisions in this area exempt from Equal Protection review?

    It’s important to note that a lot of people are focusing on (1), but that the case itself is really based on a combination of everything BUT (1.)

    So, for example: I think that Congress has the power to decide how out-of-country babies will or will not become U.S. citizens. I think that within that power, they can meet the review criteria and uphold the law, if they’re not subject to the stricter equal protection review. But I do not understand the law well enough to know whether (a) they can meet the standard of EP review, and/or (b) whether EP review is even appropriate for the case. So I can’t opine on that question.

    That doesn’t mean that I don’t see that there’s a gender differential in the law, or that the guy thinks he got screwed; it just means that for this particular court case I don’t know that the Constitution mandates the court to give him what he is asking for.

  14. 14
    mythago says:

    Rpobert @10: not completely correct. In the days before genetic testing, there certainly could be other evidence offered – say that the GI and the mother were married (in the US, that creates a presumption of paternity), affidavits from the GI, a family Bible, or other evidence; of course this isn’t 100% proof, but certainly it’s evidence just as a paternity test – which is not 100% accurate – is.

  15. 15
    RonF says:

    gin-and-whiskey, the rule looks uniform to me. It applies to every child equally.

  16. 16
    gin-and-whiskey says:

    Thene says:
    10/12/2010 at 2:00 pm

    G&W: thanks for pointing us at that brief. It’s interesting that the USA is challenging Flores-Villar’s standing to claim equal protection on the grounds that it’s a third party – his father, not him – who’s being discriminated against.

    That’s just going for an easy win. If he has no standing, the case is gone without it being considered on the merits.

    That’s framing citizenship as something that one has the right to confer, not the right to claim. Common sense would suggest that the reason Flores-Villar’s father isn’t the one asking for equal protection is that he’s not the one who’s suffering from the lack of it!

    I agree regarding common sense. However, I don’t know what the law says, and I do know that “common sense” and “legal” are really not the same thing at all.

    The constitution gives Congress the authority ‘To establish a uniform Rule of Naturalization’ but one rule for women and a different rule for men is not uniform and I don’t see how it could be said to be so.

    I have no idea how “uniform” is interpreted in this context. But I don’t think that it necessarily means what you say it does. See above re: common sense and legal.

    Does “uniform” mean “not crafted for each individual?” Or does it mean “the same set of rules is used for the entire country?” (in both those cases, it’s “uniform.”)

    Does the U.S. have a “uniform” tax system even if it ends up charging a high rate to rich people and and low (or nonexistent) rate to poor people? It could be yes or no.

  17. 17
    mythago says:

    gin-and-whiskey, the rule looks uniform to me. It applies to every child equally

    Er, right. So it would be a perfectly valid, uniform law if it set different citizenship standards for children whose parents were Catholics rather than Protestants? After all, the law would apply to every child equally.

  18. 18
    Austin Nedved says:

    The constitution gives Congress the authority ‘To establish a uniform Rule of Naturalization’ but one rule for women and a different rule for men is not uniform and I don’t see how it could be said to be so.

    A uniform rule of naturalization means a rule of naturalization that is uniform in all states. In Federalist 42, Madison wrote

    The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included. . . [the establishment of] a uniform rule of naturalization…

    The purpose of giving Congress the power to establish a uniform rule of naturalization is to “provide for the harmony and proper intercourse among the states,” so it seems pretty obvious that “uniform” refers to national uniformity and nothing else.

  19. 19
    Dina Gomes says:

    This issue is close to home for some of us. My family and I are affected personally. For an entire year my 7 year old niece has been waiting to come to America from an undeveloped nation where children’s rights are overlooked and horrific crimes such as child molestation and child neglect are things of the norm. Where does the blame lie? Is the country, (for security reasons shall remain nameless) where my niece currently resides responsible or is my brother, who himself is a U.S. citizen born abroad, at the same time, though, does not have the 5 years of physical presence that is unfairly required for fathers to bring their children to America at fault. The reality is that children are suffering because those in authority choose to look the other way. My brother, who refuses to leave his daughter behind, is basically being held prisoner overseas. Every American should enjoy the same rights to transmit U.S. citizenship to all of their children at birth including all children born abroad. The United States inspired and helped draft several UN human rights instruments which give detailed descriptions of the basic rights that all individuals are supposed to share without discrimination of any kind. This includes the right of every child to acquire at birth a name and a nationality. Why, if the United States supported these international conventions, does it not implement them? Where is the justice?

  20. Pingback: Supreme Court, In A 4-4 Vote, Affirms Sexist Discrimination Against Fathers « Family Scholars