By Sandra S. Park, a staff attorney in the ACLU Women's Rights Project. Ms. Park was counsel on the ACLU's amicus brief in Flores-Villar v. United States.
When a child is born to an unmarried U.S. citizen living abroad, the parent's ability to transmit U.S. citizenship to the child turns on this question: Was the child born to a U.S. citizen father, or mother?
If the child's 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.
But if only the child's father is a U.S. citizen, the law mandates more: The father must legitimate or legally acknowledge his child and have resided in the U.S. for many more years, at an age set out by statute.
The law, originally enacted in 1940, is one of the few remaining in the U.S. Code that explicitly discriminates based on gender, and for that reason, has been the subject of a number of equal protection challenges. The Supreme Court first examined the legitimation requirement imposed on fathers in Miller v. Albright (1998), resulting in a splintered plurality opinion. In 2001, the Court revisited the issue in Nguyen v. INS, a case co-counseled by the ACLU, and upheld the legitimation requirement. In an opinion that has been widely criticized, the Court found that the legitimation condition fulfilled the government's interest in assuring that a biological parent-child relationship exists, and that the father and child have a demonstrated opportunity to develop a meaningful relationship.
On Wednesday, the Supreme Court will hear argument in a challenge to the gender-based residency requirements contained in the law - Flores-Villar v. United States. Ruben Flores-Villar was born abroad in 1974. His U.S. citizen father brought him to this country when he was two months old, legally acknowledged him, and raised him as a single parent. Flores-Villar sought citizenship through his father, but was rejected based on his father's failure to satisfy the residency criteria for unmarried fathers: ten years in the U.S. prior to the child's birth, at least five of which were after the father was 14 years old. When Flores-Villar was born, his father had lived in the U.S. for more than a decade; however, because he was 16 years old, he could not show that five years of his residency occurred after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would have acquired citizenship through his parent.
The government asserts that the relaxation of the residency requirements for unmarried mothers is justified in order to prevent the statelessness of children. Because many countries do not grant citizenship by virtue of birth in the country, children who are born abroad to unmarried U.S. citizen mothers face the risk of statelessness unless they are able to acquire American nationality through their parent. However, children born to American fathers also can become stateless, for some countries do not allow mothers to transmit citizenship to nonmarital children if the father is known or legally acknowledges them.
The ACLU filed an amicus brief in the case, calling on the Court to declare unconstitutional the disparate residency requirements for fathers and mothers. The key questions presented by the case are what standard of review applies - heightened scrutiny as set out in U.S. v. Virginia (1996), or rational basis review due to application of the plenary power doctrine - and whether the government's justification survives an equal protection analysis.
The principles elucidated by classic sex discrimination cases like Weinberger v. Weisenfeld (1975) (invalidating a federal law that provided survivor benefits only to widows, because Congress assumed widowers would not choose to stay at home with their children), Califano v. Goldfarb (1977) (invalidating a law that required widowers, but not widows, to show that they depended on their deceased spouse for their support before receiving survivor benefits), and Califano v. Westcott (1979) (invalidating a program that provided unemployment benefits only to families with unemployed fathers) apply with the same force today: A law cannot be upheld as a benign benefit to women when it was created on the assumption that mothers, and not fathers, will care for their children, and when gender-neutral alternatives exist.
The case thus presents an opportunity for the Court to clarify that heightened scrutiny is the standard that applies in all sex discrimination cases, including those challenging citizenship laws, and to hold the government to this demanding burden. The residency requirements here are particularly egregious, because they make it physically impossible for some fathers to transmit citizenship to their children. The Nguyen court emphasized that the law's legitimation requirements were not "inordinate and unnecessary hurdles" because a father could satisfy them on the day of his child's birth or sometime during the next 18 years. As Flores-Villar's situation makes clear, the residency requirements, on the other hand, absolutely bar some fathers from transmitting citizenship. Together with the legitimation requirements, they force fathers to choose between rendering their children stateless through paternal acknowledgement or foregoing a legal parental relationship altogether.