Out of wedlock, out of luck?

The Constitution makes clear that a child born in the United States is a citizen of the United States. But it is silent on the subject of children born to Americans outside the country. This month, the Supreme Court heard arguments about a tiny subset of this group — children born to an American parent not only out of the country but also out of wedlock — and the conditions under which they may become citizens.

The problem facing the court is that existing law blatantly discriminates against men, making it substantially more difficult for unmarried fathers to pass along their citizenship to children born abroad than it is for unmarried mothers to do so. But there’s no reason — other than outdated gender stereotypes — for an American mother to have stronger rights than an American father. The court should strike down this unfair law.

Ruben Flores-Villar, born out of wedlock in Mexico but raised in San Diego by his American father, faced deportation after entering the United States illegally. He insisted that he couldn’t be deported because he was a U.S. citizen. But federal law at the time of his birth granted citizenship to foreign-born, out-of-wedlock children of male U.S. citizens only if the father had resided in the United States for 10 years before the child’s birth, including five years after the father’s 14th birthday — a requirement Flores-Villars’ father failed to satisfy.

By contrast, a female U.S. citizen hoping to pass along citizenship to an out-of-wedlock child born abroad needed only to have lived in the United States continuously for one year any time before the child’s birth. (The law has been modified but still discriminates against unwed fathers.) This disparity is a relic of a time when it was assumed that mothers always had a closer connection than fathers to their children.

The Obama administration argued to the Supreme Court in favor of preferential treatment for unwed mothers, saying it serves the purpose of reducing the number of “stateless” children because other countries would be unlikely to grant citizenship to out-of-wedlock children. But the same argument supports making it easier for unwed fathers to be able to pass along citizenship to their children.

Some justices seemed inclined to uphold the law because of Congress’ traditional discretion over matters of immigration and naturalization. But neither the law involved in Flores-Villar’s case nor the current version can be reconciled with the constitutional guarantee of “equal protection of the laws.” The court should rule that unwed mothers and unwed fathers be treated identically. Then Congress should go further and abolish all distinctions in the law, treating children born out of wedlock and children of married couples the same.