In the Supreme Court this morning, the Obama administration is defending discrimination in the law of U.S. citizenship on the grounds that other countries do it too.
When a non-marital child is born outside the United States and has one parent who is a U.S. citizen, the child’s eligibility for U.S. citizenship depends in large part on the sex of the citizen parent. If the child’s mother is the U.S. citizen, then the child is entitled to citizenship as long as the mother was physically present in the U.S. for at least one year of her life before the birth of the child. But the father can give his child the right to citizenship only if he has spent ten years in the U.S. before the birth, five of which must be after the father turned 14. In addition, paternity has to be established before the child reaches the age of 21.
A decade ago, in Nguyen v. INS, the Supreme Court upheld the requirement of establishing paternity. The government had argued that it needed to ensure a meaningful connection between the child and the citizen parent. Mothers had that connection automatically at the time of birth, while fathers needed to take extra steps to make a connection. While hedging a bit about whether mothers have inherent bonds with their offspring, the Court basically accepted this argument. To do so, it had to ignore pretty clear evidence that—surprise!—the enactment of the statute had been motivated by sex stereotypes. It also had to ignore its own prior holding, in United States v. Virginia, that sex classifications had to be evaluated in light of the actual reasons they were adopted. I have written, here, about some of the problems with the Court’s analysis in Nguyen.
In today’s case, Flores-Villar v. United States, the petitioner again points to legislative history demonstrating that Congress was acting on the basis of stereotypes about women’s sole responsibility for non-marital children. It will be interesting to see whether the Court once again ignores Virginia by giving the government a free pass on the stereotyping behind the statute.
The government argues that the ten-year rule is the standard for non-marital children, while the special rule for unwed citizen mothers is an attempt to reduce the risk that their children will be stateless. This risk is due to the fact that many countries follow jus sanguinis rather than jus soli but do not give unwed fathers the benefit of sanguinity unless they establish paternity. In other words, because other countries refuse to recognize an unwed father as a parent who can transmit citizenship, we can do the same. While I’m sympathetic to compensating for other countries’ sex discrimination, the law here compensates for the situations when the other countries’ rules harm mothers but not for when they harm fathers. Rather than leveling the playing field, the distinction in U.S. law further perpetuates a whole range of stereotypes about parents’ connection to their children and about the effects of family relationships on patriotism and loyalty.