[Crossposted at Family Scholars Blog.]
I wrote about Flores-Villar v. United States last year. The Times summarizes the state of the law in 1974, when Ruben Flores-Villar was born:
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 Four Justices on the Court were willing to let stand a decision based on outdated stereotypes about the roles of men and women in raising their children.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.
You refer to these laws as sexist against men, and they are in both a technical sense and in their actual effects. It should be noted however that part of the rational employed by the Supreme Court in previous decisions involving laws that descriminate against men in their application is that usually the stereotypes they are based on are not only wrong, but they tend in general to be more harmful to women than men. So in this case, while the law that they upheld was unfair to men, the streotype that now has greater legal support, that women are the natural caretakers of children, is more harmful, in total, to women.
Is it possible for a law or situation to be sexist against one gender without being sexist toward the others?
I suspect that it’s not.
Grace
The disparity between the two does seem odd to me. But I’m curious about something. The presumption here is that in challenging the law the outcome would be to lower the standard for transmission of citizenship by unmarried fathers to that set for unmarried mothers. It would equally answer the challenge of unconstitutional disparity by changing the standard for transmission of citizenship to a child by an unmarrried mother be set to the same standard as the existing one for men.
There may well be justification under the Constitution to say that discrimination on the basis of sex in this law is unlawful. But where would the justices have justification for choosing which one of these standards should be settled on? It seems to me that they should kick this back to the legislature and say “make these standards equal”, but I don’t see where they can legitimately say “here’s the standard they should both meet”.
RonF-
The Supreme Court cannot force the legislature to do anything, and they can only rule on the case that is before them. A case where a person who gained citizenship through their mother who would not have been able to though their father would not come before the court because no one would have both standing and a reason to appeal. So all they can do is rule that the standards need to be the same, and then apply the easier standard. Under such a ruling, it would still be possible for the legislature to change the standard for everyone to the more difficult one.
It would seem to me that now that biological paternity is pretty easy to determine, justifications for treating fathers and mothers differently are much less persuasive than they were mid-20th century. I can see that it was much simpler to establish biological maternity than biological paternity 50 years ago – and so there could be concern that a putative father was not in fact the father, and it could be reasonable to develop tests and standards. But the technological landscape has changed dramatically. Biological paternity can be pretty easily determined, and giving birth to a child does not necessarily establish biological maternity as conclusively as it once did.
None of which really applies to this case because it was a case of paternity back when DNA testing was not available. RonF – the Court has to choose the more lenient standard, because it’s not going to go back and invalidate the citizenship of all the people who gained citizenship through their biological mothers. The only way to enforce a decision for equality is to give citizenship to those who would have gained it through their fathers if the standard was the same as for mothers. The Court’s only options for remedies involve the parties before it. The Court can’t remedy the injustice to the plaintiff by invalidating a bunch of non-parties’ citizenship.
I’ll admit that it’s not an exact analogy, but that’s precisely what the Massachusetts Supreme Court did in creating same-sex marriage. They told the Massachusetts legislature that it had to come up with a law validating and implementing same-sex marriage. If the Feds operate under different rules – and they may well do so – then fine.
Why necessarily apply the easier standard?
I don’t see how that would necessarily follow. Standards for qualifications for one thing or another change under the law all the time. The Supreme Court doesn’t have to invalidate the citizenship of the other class of people, they could simply “grandfather” those people in and tell the legislature “you have to make these equal from now on within ‘x’ days, or there’ll be no standards at all”.
Consider the case where the person who is alleged to be the father of the child may not wish to acknowledge paternity. Will you then compel him to provide a DNA sample? Remember that unlike rape we are not alleging a crime to have been committed here.
“Why necessarily apply the easier standard?”
“…they can only rule on the case that is before them. A case where a person who gained citizenship through their mother who would not have been able to though their father would not come before the court because no one would have both standing and a reason to appeal.”
I do not know the law in Mass. but I do know some state supreme courts have powers that the U.S. Supreme Court does not. In many states, for example, the highest court can issue advisory opinions before a law is past, or issue opinions on the (state) constitutionality of a law without the need for litigation. But no, the U.S. Supreme Court can not force Congress to do anything.
Don’t they sometimes compel paternity testing for child support?
About the Massachusetts example, consider the remedies the court could require. Once you decide that not allowing gay people to marry is discriminatory, there are basically two remedies: either allow gay people to marry or allow no one to marry. And no court and no legislature is going to go with the latter.
The only remedy for the discrimination against THIS plaintiff (if the court had held that unlawful discrimination occurred) would be to require that he be granted citizenship, seeing that he met the requirements of mothers at the time the child was born. That would not prevent Congress from creating some other gender neutral rule going forward. Congress could pass a new law making the standard for mothers and fathers the same as it used to be for fathers. The court is only deciding what to do in this case with this plaintiff, and logically others similarly situated. Nothing in the court’s ruling would require that the rule applied in the future be the rule previosly applied to mothers. The ruling would be that in the case of this plaintiff the rule that must govern is the rule applied to mothers at the relevant time in the past.
“Don’t they sometimes compel paternity testing for child support?”
Not the Supreme Court usually, but yes, the courts including the Supreme Court can compel actions of individuals and institutions. Most famous was probably ording Nixon to turn over the Watergate tapes. Nixon apparently gave serious thought to just ignoring the order, but he eventually did so under pressure from the House committee considering impeachment. Presumably they could order Congress to turn over materials from a Congressional investigation, so saying they cannot compel Congress to do “anything” was too strong. What they cannot do is compel the other branches to perform actions that they are given power over by the Constitution, power by nature being discretionary. So they could not compel the President to sign a bill into law, or to make a treaty with a foriegn power, or to attack a country Congress has declared war against. And they cannot compel Congress to pass a law or even compel the Senate to take a vote on a Presidential appointment. They can just decare that what Congress has done, or part of it, is invalid.
Oh, I didn’t mean in this case. Ron raised the issue of compelling paternity testing as if it were unusual outside of criminal matters, and I was asking if it actually were that unusual. In a general sense.