Laws that discriminate between men and women have been regularly declared unconstitutional since the 1970s, but the Supreme Court on Wednesday seemed ready to permit an exception to that rule.
At issue was when children born of mixed marriages abroad can claim U.S. citizenship.
Congress has made it easier for unwed American mothers than it is for unwed fathers to pass on their citizenship. The foreign-born baby of an unmarried American mother is a U.S. citizen if the mother lived in the United States for at least one year. But under a 1952 law, an unmarried American father could not pass on his citizenship to his foreign-born child unless the father had lived at least five years in the United States after age 14.
The issue came before the court in the case of a deported drug dealer who was born in Tijuana, Mexico, in 1974 to a Mexican mother, but raised in San Diego by his American father. When Ruben Flores-Villar was about be deported to Mexico for the fourth time in 2006 for selling marijuana, he raised a new objection. He said he should be deemed a U.S. citizen because his father was 16 at the time of Flores-Villar’s birth and an American citizen.
His lawyer argued the law’s stricter rule for fathers unconstitutionally discriminates based on gender. It rests on outdated “gender stereotypes that women, not men, would care” for their children, San Diego attorney Steven Hubachek told the court.
At this, Justice Antonin Scalia came to the defense of stereotypes. “What separates a stereotype from reality? Do you say it is not true that if there is an illegitimate child, it is much more likely that the women will end up caring for it?”
Before the lawyer could finish his answer, Justice Ruth Bader Ginsburg spoke up to say a stereotype may be “true in general, but there are people who don’t fit the mold.” Ginsburg was the leading advocate in the 1970s for abolishing sex discrimination in the law, and she did so on several occasions by representing men who were raising children. Flores-Villar was raised by his father, not his mother in Mexico, she noted.
But the prospects for Flores-Villar soon faded. Justice Anthony M. Kennedy said he saw no reason to second-guess Congress in setting such rules. Scalia said the court had never ordered the government to declare someone a U.S. citizen.
The Constitution says children born in the United States are citizens, regardless of their parents’ status. However, “no foreign-born person has a free-standing right” to citizenship, the government said.
Chief Justice John G. Roberts Jr. suggested the answer in this case might be to make it just as hard for unwed American mothers to pass on their citizenship to a foreign-born child. “The remedy for an equal protection violation is to treat everybody the same,” he said. But that would be of no help to Flores-Villar, he noted.
Justice Elena Kagan stayed out of the case because she had worked on it while at the Justice Department. Her absence means it is highly unlikely the court’s liberal wing could muster a majority to rule for Flores-Villar and to strike down the stricter citizenship standard for the children of unwed American fathers.