Today, an evenly split Supreme Court allowed a nationality law that makes it more difficult for fathers to transmit U.S. citizenship to their children than mothers. The order in Flores-Villar v. United States was 4-4 (Justice Elena Kagan recused herself due to her participation in the case as Solicitor General), and has limited precedential value. The Court did not tackle the central issue of whether the law — one of the few that explicitly discriminates based on gender — is constitutional. The ACLU filed an amicus brief arguing that the law could not survive.
The law, originally enacted in 1940, imposes more onerous residency requirements on unmarried U.S. citizen fathers — as compared to mothers — who seek to pass U.S. citizenship on to their children. 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. However, if only the child’s father is a U.S. citizen, the law mandates that the father must legally acknowledge his child and have resided in the U.S. for at least five years after the age of 14.
The facts of Flores-Villar v. United States illustrate how such disparate requirements unjustly discriminate against fathers based on the stereotype that mothers, not fathers, care for their children. Ruben Flores-Villar’s father brought him to the U.S. when he was two months old and legally acknowledged him. Although his father raised him as a single parent, he was barred by the law from transmitting citizenship to his son, because he was 16 years old when Flores-Villar was born. Thus, it was physically impossible for him to satisfy the requirement that five years of his residency occur after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would be a citizen today.
The U.S. Court of Appeals for the 9th Circuit upheld the law in response to Flores-Villar’s constitutional challenge. The court failed to take into account that gender stereotypes that presume fathers are less responsible for child rearing influenced the passage of the law, despite the fact that laws that discriminate between men and women based on gender stereotypes have routinely been struck down as violating the Constitution.
Furthermore, the lower court did not recognize that the government’s justification for the law — to avoid statelessness of children — was unpersuasive. By subjecting fathers to stricter residency requirements, the law exacerbates the risk of statelessness for their children and does not effectively address the problem. Without much analysis, the court relied on the reasoning of Nguyen v. INS, which approved the law’s legitimation requirement, but did not recognize a crucial distinction. In Nguyen, the Court emphasized that the father had ample opportunity to legally acknowledge his child and exercise his right to transmit citizenship. Flores-Villar’s father, on the other hand, faced an absolute bar to transmitting citizenship due to his age. In effect, the law declares that some parents have fewer rights, simply because they are men.
Today’s order did not rule on the merits of the 9th Circuit’s reasoning. But given that this nationality law continues to treat fathers and mothers differently, those questions will likely be raised again, to be heard next time by all nine justices.