Requirements are More Stringent if U.S. Citizen Parent is the Father Rather Than the Mother

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WASHINGTON – An evenly-split Supreme Court today affirmed a lower court’s ruling upholding a law that unfairly discriminates against fathers, by establishing different citizenship criteria for children born abroad to an unmarried U.S. citizen depending on the sex of the citizen parent.

In a one-sentence order without written opinion, the Court upheld a law, originally enacted in 1940, which states that if the child's mother is a U.S. citizen, the child will automatically be a U.S. citizen at birth, so long as the mother previously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. But if only the child's father is a U.S. citizen, the law mandates that the father have resided in the U.S. for 10 years prior to the child's birth, at least five of which must after the father was 14 years old. The law is one of the few remaining laws on the books that explicitly discriminates based on sex. Today's tie vote has limited precedential value and makes it virtually certain that the issue will return to the Court in another case when it can be reconsidered by all nine Justices. In the meantime, however, today's action leaves the discriminatory law in effect.

The law was challenged by Ruben Flores-Villar, who was brought to the U.S. as an infant by his single father, a U.S. citizen who had lived in the U.S. for more than 10 years. But because his father was 16 when Flores-Villar was born, it was physically impossible for him to satisfy the requirement of five years residency after the age of 14, and he was unable to transmit citizenship to his son, Ruben Flores-Villar. The American Civil Liberties Union filed a friend-of-the-court brief in support of Flores-Villar.

The following can be attributed to Sandra Park, staff attorney with the ACLU Women’s Rights Project:

“This law is based on the outdated assumption that mothers, not fathers, care for and nurture their children. Mr. Flores-Villar’s case demonstrates the injustice of codifying such gender stereotypes. The law makes it impossible for some U.S. citizen fathers to transmit citizenship to their children even when they are the only parent involved in raising their children. The basis for this law is senseless and discriminatory, and the Court is wrong to give it any legitimacy by allowing it to stand with today’s affirmance.”

The following can be attributed to Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project:

“We are disappointed that the Court affirmed an opinion that relegates immigration law to a ghetto of constitutional law. Applying different legal rules to immigration policies based on sex is troubling and damages the basic fabric of our legal system.”