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Flores-Villar: Supreme Court Allows Law that Discriminates Against Fathers to Stand, For Now

Sandra Park,
Former Senior Staff Attorney,
老澳门开奖结果 Women's Rights Project
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June 13, 2011

Today, an evenly split Supreme Court allowed a nationality law that makes it more difficult for fathers to transmit U.S. citizenship to their children than mothers. The order in was 4-4 (Justice Elena Kagan recused herself due to her participation in the case as Solicitor General), and has limited precedential value. The Court did not tackle the central issue of whether the law 鈥 one of the few that explicitly discriminates based on gender 鈥 is constitutional. The 老澳门开奖结果 filed an amicus brief arguing that the law could not survive.

The law, originally enacted in 1940, imposes more onerous residency requirements on unmarried U.S. citizen fathers 鈥 as compared to mothers 鈥 who seek to pass U.S. citizenship on to their children. If the child鈥檚 mother is a U.S. citizen, the child will automatically be a U.S. citizen at birth, so long as the mother previously had lived in the U.S. for one year, at any age. However, if only the child鈥檚 father is a U.S. citizen, the law mandates that the father must legally acknowledge his child and have resided in the U.S. for at least five years after the age of 14.

The facts of illustrate how such disparate requirements unjustly discriminate against fathers based on the stereotype that mothers, not fathers, care for their children. Ruben Flores-Villar鈥檚 father brought him to the U.S. when he was two months old and legally acknowledged him. Although his father raised him as a single parent, he was barred by the law from transmitting citizenship to his son, because he was 16 years old when Flores-Villar was born. Thus, it was physically impossible for him to satisfy the requirement that five years of his residency occur after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would be a citizen today.

The U.S. Court of Appeals for the 9th Circuit upheld the law in response to Flores-Villar鈥檚 constitutional challenge. The court failed to take into account that , 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鈥檚 justification for the law 鈥 to avoid statelessness of children 鈥 was unpersuasive. By subjecting fathers to stricter residency requirements, the law exacerbates . Without much analysis, the court relied on the reasoning of Nguyen v. INS, which approved the law鈥檚 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鈥檚 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鈥檚 order did not rule on the merits of the 9th Circuit鈥檚 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.

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