The Supreme Court should strike down an old citizenship law that discriminates against fathers.
The Supreme Court should strike down an old citizenship law that discriminates against fathers.
The law, lawyers, and the court.
Nov. 9 2010 3:43 PM

Sexing Citizenship

The Supreme Court should strike down an old citizenship law that discriminates against fathers

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As Ruben Sr. learned, however, a system that assumes all unmarried fathers are irresponsible sometimes punishes the father who embraces and raises his child. 

In defending the differential treatment of fathers and mothers in our citizenship laws as constitutional, the government in Flores-Villar has urged that there is a benevolent basis for the discrimination. Invoking the specter of the classic story, "The Man Without a Country," DoJ argues that these laws treat American mothers differently in order to protect their children from statelessness. The foreign-born child of an unmarried American father "is unlikely to be born stateless," the government argues, because "the child will have the citizenship of the mother."


The government's support for this assertion is questionable at best. It is also based on a fanciful reading of the legislative record. We have reviewed thousands of pages of congressional debates and legislative hearings stretching from the 1920s through the present. We find no evidence that Congress has ever been seriously concerned about a special risk of statelessness facing the foreign-born out-of-wedlock children of American mothers. Instead, the record includes mountains of evidence that Congress has routinely relied on sex-based stereotypes when crafting citizenship laws. When Congress makes sex-based distinctions because of outdated presumptions about the proper roles of men and women as parents, it collides with the guarantee of equality in the Constitution. 

The government dismisses these arguments about sex-discrimination in part by highlighting the facts that brought Ruben Jr. to court: He was convicted of importing marijuana and has been deported. Unless he is found to be a citizen, he will never be allowed to return to the United States. The government argues that if Ruben Jr. had stayed on the right side of the law, he would be eligible to become a citizen through naturalization.

This is a distraction. Flores-Villar isn't a case about keeping out illegal immigrants. It is a case about the rights of American mothers and fathers to equal protection of the law. It is also about a child's "right to a nationality," a fundamental principle of the Universal Declaration of Human Rights. "Citizenship is not a license that expires on misbehavior," the Supreme Court forthrightly stated more than 50 years ago.  Nor should one's citizenship status turn on the happenstance of whether one's citizen parent is a mother or a father. Either parent can take responsibility for raising a child. That's the modern truth the Supreme Court should embrace and that our citizenship laws should reflect.  

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Kristin Collins is a law professor at Boston University, and is the principal author of an amicus brief filed on behalf of Ruben Flores-Villar. Linda K.  Kerber is a history professor at the University of Iowa and a signatory of the amicus brief. She is also the author of No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship

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