Private: A Supreme Court Opportunity to Cap off 100 Years of Gender Equality Progress

By Martha F. Davis Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis filed an amicus brief in Flores-Villar v. United States on behalf of Equality NOW, Human Rights Watch and other groups.

As Americans mark the 100th anniversary of International Women's Day (IWD) on March 8, 2011, what better way to celebrate than eliminating the few remaining legal vestiges of women's historic second-class citizenship? And even better, why not do it in a way that helps men, too, by reaffirming their important role as parents and caretakers?

There is no doubt that we've come a long way in a century. At the time of the first official IWD in 1911, women in the United States could not vote, were barred from serving in the military except as nurses, and lost their U.S. citizenship for the duration of the union if they married a foreign national. Now, of course, circumstances are much different. But there are some stubborn, lingering messages about women's civic roles. We can vote, but women are still barred from some combat positions in the military - positions that often serve as a step up to greater leadership roles. Women can enlist, but only men are required to register and participate in the Selective Service System, and are sometimes threatened with denial of educational loans if they fail to do so. Notably, while even Harvard Law School turned away the ROTC because of the military's discriminatory policies on gays, plain old sex discrimination in the military has not triggered such public outcry. There is tacit acceptance of the message that men are the primary warriors and heroes and that women's proper place is on the home front.

This persistent stereotype also informs a venerable law currently being challenged before the U.S. Supreme Court in Flores-Villar v. U.S. Under that law, the U.S. citizen father of a foreign-born, out-of-wedlock child must jump through a series of hoops in order to transmit U.S. citizenship to his child, including providing proof that he resided in the U.S. for at least five years after his 14th birthday but before the child's birth. A U.S. citizen mother under the same circumstances must simply prove one year of residence at any time prior to the child's birth.

Underlying the complexities of this law are two assumptions. First, that U.S. citizen men abroad will not have a significant relationship with their out-of-wedlock children; and second, that U.S. citizen women abroad will. While that assumption may contain a nugget of truth, there are many parents who don't fit that mold, including the individuals before the court in Flores-Villar. Flores-Villar's father, and not his mother, cared for him from a very young age. Other cases that have reached the Supreme Court on this issue, Miller v. Albright and Nguyen v. INS (in which I represented the petitioner), have also demonstrated that citizen fathers, as well as citizen mothers, may be primary (and often sole) caretakers of their non-marital children.

The U.S. government defends this differential treatment of mothers and fathers, arguing that sex-based classifications are necessary in U.S. law because other countries have their own sex-based schemes for granting citizenship. If our laws don't match theirs, the government asserts, some children may end up stateless, without citizenship in any nation.

Statelessness is certainly an important concern in the international sphere, but it can surely be addressed without perpetuating ancient stereotypes about men's and women's parental roles. The State Department is perfectly capable of making case-by-case determinations as to when the threat of statelessness might require special measures. In other cases, our own Constitution and the high value that we place on equality should dictate that men and women are treated the same for purposes of sharing their own citizenship with their children.

By the same token that eliminating restrictions on women in the military would begin to welcome women as full U.S. citizens, so would striking down the law in Flores-Villar welcome men as full parents, with the rights to transmit U.S. citizenship that accompany that status.

Oral argument in Flores-Villar v. U.S. was conducted in November 2010, and a decision may be issued any day. If the Supreme Court majority upholds the law, Congress should act expeditiously to strip the law's sex-based classifications.

What a fitting way that would be to celebrate International Women's Day and cap off a century of dramatic gains in women's and men's equality!

Constitutional Interpretation, Equality and Liberty, Immigration, Supreme Court, Women's rights