"Difference" feminists have been arguing for years that the best way to promote gender equality is by treating the genders differently. And the notion that you must treat people unequally to promote equality is at the core of the affirmative-action debate. It's what animates today's case— Nguyen v. INS, which involves the federal government's efforts to, as Deputy Solicitor General Edwin Kneedler puts it today, "put fathers of children born out-of-wedlock abroad on the same footing as mothers of children born out-of-wedlock abroad." Congress chose to level the playing field by treating such fathers and mothers differently.
Whereas the illegitimate children born abroad to American women earn immediate U.S. citizenship, the children born abroad to American fathers do not. Under Section 1409 of the federal Immigration and Nationality Act, fathers who want to acknowledge their foreign-born out-of-wedlock offspring must take several affirmative steps before the child turns 18: They must prove a blood relationship to the child, they must agree in writing to support the child financially until age 18, and they must have their paternity adjudicated in court.
The theory appears to be that there is no doubt that a child popping out of an American womb is the creation of at least one American, while the citizenship of a child said to be fathered by an American man but foaled by a foreigner is in doubt. So said fathers should be forced to affirmatively prove citizenship of their kids. Or something. Frankly, as Justice Souter points out today, one good way to treat men and women equally is to treat them, well, equally.
While there's no question that the Immigration and Nationality Act treats fathers and mothers differently, it still may not violate the equal protection requirements of the Fifth Amendment, if—as usually happens in immigration cases—the rule is reviewed by the courts with hyper-deference to Congress. So, as so often happens in what might have been an interesting case before the Warren or Burger courts, the justices get bogged down all morning over whether or not Congress exceeded its plenary powers in promulgating the rule.
Mmmmm, talk plenary powers to me, baby.
The plaintiffs are Tuan Ahn Nguyen, and his dad, Joseph Boulais. Nguyen was born in Vietnam in 1969, out-of-wedlock, to Boulais and a Vietnamese mother, who abandoned the boy at birth. Boulais raised Nguyen in Houston, assuming he was a U.S. citizen until discovering otherwise at Nguyen's deportation hearings in 1995. Now before you get too misty, Nguyen was being deported because he was a convicted felon—guilty of sexual assault on a child. Still, when the INS sought to deport him as a foreign convicted felon, Boulais was ticked. The only reason his son is not a citizen is that Boulais hadn't known about the extra INS hurdles required of fathers, hurdles not required of mothers. Moreover, Boulais did all the things fathers are meant to do under the statute—supported his son financially and acknowledged himself the father. He just never did so in court.
Nguyen and his dad lost their case before the Board of Immigration Appeals and then lost again on the Fifth Circuit. A different case last year on the Ninth Circuit went the other way—holding that the statute was unconstitutional on equal protection grounds. A 1998 Supreme Court case, Miller v. Albright, almost got to this issue, then ducked it when the plaintiff did not have legal standing to bring the case. There is no standing problem in Nguyen, so the court has a chance to finish today what it started in Miller. In a dissent in Miller, Justices O'Connor and Kennedy telegraphed that they might invalidate the statute on equal protection grounds if the right case came along. Nguyen is hoping this is that case.
So, here we are, presumably to talk about gender discrimination in the immigration statute, or at least to discuss the standard of review for immigration statutes. Instead, we spend a good bit of the morning discussing Ruth Bader Ginsburg's grandson.
Now, for the questions people have been asking me all week: "Dahlia, how are the justices behaving in the wake of the Bush v. Gore debacle? Aloof? Depressed? Smug? Combative?" The answer is, for the most part, no. Today is a pretty regular day for Chief Justice Rehnquist, who embarks on his midmorning stroll behind the bench, and Breyer who—typically—grips his head as if in the throes of some massive inflammatory gum disease. O'Connor is typically snappish today, not merely with counsel, but with a few of her brethren. And Thomas rests his eyes. Business as Usual. In fact, the only justice who appears to be acting strangely today is Ginsburg—who's cracking jokes, chuckling aloud, and being weirdly gregarious. Initially, I speculate that she is perhaps still comforting herself over the election by turning to drink.
God knows, I did.
But no, on closer inspection, she's not drunk. She may just be suffering from the displaced nihilism of the badly disillusioned. So, almost right out of the chute, Ginsburg is questioning Martha Davis, who's on academic leave from her usual job as legal director for NOW's Legal Defense Fund and arguing for Nguyen. Davis is trying to argue that citizenship issues are outside the plenary power of the federal government, and the justices are baiting her over whether foreign-born children of American parents are born citizens or naturalized. Says Ginsburg, "My grandson was born in Paris. I never considered him naturalized."
Then Ginsburg starts to worry. "Can such persons be denaturalized?" she asks. Davis replies that they can be subjected to "additional conditions." Later, Ginsburg summarizes the case with: "There's a debate about this. There's a debate about whether my grandson is a natural-born citizen. I think he is though." She chuckles some more.
Later, during the deputy solicitor general's presentation, Ginsburg describes the fathers of these illegitimate children as "Johnny Appleseeding around," which is a wonderfully fecund image but, again, notably un-Ginsburg-like. When, moments later, Justice Stevens suggests that DNA tests make it very easy to identify the putative father, Ginsburg chuckles, "Once you find out who he is." Then, as counsel tries to move on to a new point, she interrupts him again, "Before you get to that Mr. Kneedler, I keep worrying about my grandson. … Do you think he could be denaturalized, like a naturalized citizen?"
Kneedler, like much of the audience, starts looking like maybe Ginsburg should take a few minutes to call and check on her grandson before continuing with oral argument. It's all just extremely weird. Justice Scalia is clearly inclined to defer to Congress, and O'Connor and Kennedy are clearly still ambivalent.
So, if you were hoping to read all about the nuance of difference vs. equality feminism and what it means to set higher standards for paternity, well sorry, Charlie. Your dinner table conversation will probably be more engaging. (Unless your preschooler is taking a "plenary powers" finger-painting class.)
And say a prayer for Justice Ginsburg's grandson: the denaturalized man.