[Crossposted at Family Scholars Blog.]
Children born outside the country to an unmarried American parent are considered American citizens at birth if the parent lived in the United States before the child was born. For a mother, the required period of residence is one year. For a father, it is 10 years, five of them after he turns 14. Fathers must also prove parenthood and pledge to support the child.
The case involves Ruben Flores-Villar, whose father — but not mother — is an American. Ruben was born in Mexico and moved to the US when he was two months old. Ruben has been declared an “illegal immigrant” and deported to Mexico. Ruben’s father was sixteen years old when Ruben was born, and so the “five of them after he turns 14″ provision of the law was impossible to meet.
(It’s important to note that immigration law was altered in the 1980s; the current law is still sexist and should be fixed, but the discrepancy is not as large as it was when Ruben was born.)
Unfortunately, the Supreme Court upheld the lower court’s ruling on a 4-4 vote; Kagen recused herself because she was involved with this case as Solicitor General. This is particularly frustrating since, had Kagen voted, it’s expected she would have voted in Flores-Villar’s favor.
Amanda Rice writes, “When the Court splits, the lower court’s decision stands, but the Supreme Court’s decision creates no precedent. In other words, it’s just as if the Court never granted certiorari.” And this split decision creates some ground for optimism: perhaps a future case, in which Kagen can participate, will lead to this sexist immigration law being overturned.
Marcia Greenberger of the National Women’s Law Center writes:
The case demonstrates how vulnerable the hard-won Constitutional protection against sex discrimination has become. The Constitution requires an exceedingly persuasive rationale to justify the government’s treatment of people differently based on gender—and there was simply no rationale offered that even comes close here. Four Justices on the Court were willing to let stand a decision based on outdated stereotypes about the roles of men and women in raising their children.
The Court’s decision allows the continued application of tougher standards for U.S. citizenship to children born abroad to unmarried U.S. citizen fathers as compared to unmarried U. S. citizen mothers. Flores-Villar, an unmarried father, could only have passed his citizenship on to his son if he had lived in the U.S. for at least ten years prior to the child’s birth, with five of those years after the age of 14—a standard that was physically impossible for him to meet since he was 16 years old when he became a father. In contrast, unmarried mothers only have to live in the U.S. for one year—at any time in their lives—a standard Flores-Villar easily met. This unequal treatment imposes real harm on mothers, fathers and children, and because of this decision, the harm continues.
And Sandra Park of the ACLU Women’s Rights Project writes:
The U.S. Court of Appeals for the 9th Circuit upheld the law in response to Flores-Villar’s constitutional challenge. The court failed to take into account that gender stereotypes that presume fathers are less responsible for child rearing influenced the passage of the law, despite the fact that laws that discriminate between men and women based on gender stereotypes have routinely been struck down as violating the Constitution.
Furthermore, the lower court did not recognize that the government’s justification for the law – to avoid statelessness of children – was unpersuasive. By subjecting fathers to stricter residency requirements, the law exacerbates the risk of statelessness for their children and does not effectively address the problem. Without much analysis, the court relied on the reasoning of Nguyen v. INS, which approved the law’s legitimation requirement, but did not recognize a crucial distinction. In Nguyen, the Court emphasized that the father had ample opportunity to legally acknowledge his child and exercise his right to transmit citizenship. Flores-Villar’s father, on the other hand, faced an absolute bar to transmitting citizenship due to his age. In effect, the law declares that some parents have fewer rights, simply because they are men.
Today’s order did not rule on the merits of the 9th Circuit’s reasoning. But given that this nationality law continues to treat fathers and mothers differently, those questions will likely be raised again, to be heard next time by all nine justices.
The comments at the Volokh Conspiracy include some speculation about which justices voted on which side of this issue.