CITIZENSHIP RULES CHALLENGED IN SUPREME COURT ON GENDER DISCRIMINATION GROUNDS The US Supreme Court has heard arguments in a case that challenges the constitutionality of a provision in the Immigration and Nationality Act that treats unwed US citizen fathers differently with respect to passing on citizenship to children than unwed US citizen mothers. The law allows all citizen mothers to automatically pass on citizenship to their children. However, if the father is the one who is the American citizen, the child will not receive citizenship unless the father acknowledges his fatherhood and agrees to support the child BEFORE the child turns eighteen years of age. As an illustration of how this might cause a problem, Siskind, Susser, Haas & Chang recently consulted with a father who only became aware of his paternity when the child approached him. The child was twenty at that time. The father was more than happy to acknowledge paternity and support his daughter, but the immigration laws prevent him from passing on his citizenship.
The case in front of the Supreme Court has been filed by a Filipino woman whose father was an American Serviceman in the Philippines. The father did not acknowledge paternity until after the daughter turned twenty-one. The plaintiffs argued that it is unfair that mothers have to do nothing to pass on citizenship, but fathers have special tests.
Edwin Kneedler, the US Deputy Solicitor General, argued on behalf of the US government that the distinction makes sense since the identity of the mother is not normally an issue and that even with modern genetic testing, the father is often not in the same geographic area by the time the issue arises. The plaintiffs responded by arguing that the Supreme Court has stated that the government should not base legislation affecting Constitutional rights based on generalizations and should deal, if possible, on an individual basis.
Kneedler argued that a foreign-born child should have a substantial tie with the US as a condition of citizenship. According to Kneedler, for mothers "there is a legal relationship from the moment of birth that follows the profound experience of bearing a child."
Justice Ginsburg intensely questioned Kneedler and even went so far as to question whether the Clinton Administration was using this case to "retreat" from its strong stance against sex discrimination in the 1995 case involving the Virginia Military Institute. In that case, the Clinton Administration argued that the government could not make policy based on stereotypes about the different attributes of men and women.
A decision on this case is likely to come in the spring or summer of next year. < Back | Next >Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
