Supreme Court considers gender discrimination in citizenship cases

By Robert Barnes
Washington Post Staff Writer
Wednesday, November 10, 2010; 9:49 PM

A majority of Supreme Court justices may be bothered by an immigration law that treats American fathers differently than American mothers. But it seemed unlikely after an hour-long oral argument Wednesday that a majority of justices thought they could do anything about it.

The court was considering a challenge to a federal statute that makes it easier for unmarried mothers than unmarried fathers to convey American citizenship to children born outside the country.

Ruben Flores-Villar, who was born in Mexico but raised by his father in San Diego, says he is a victim of the double-standard. Fighting criminal charges, Flores-Villar, now 36, was denied citizenship and deported because his father did not meet the requirements of the law.

But conservative justices told Flores-Villar's attorney Steven F. Hubachek that granting citizenship to someone born outside the United States is a power that belongs to Congress, not the court.

"Do you have any other case where a court has conferred citizenship on someone who, under the statutes as written, does not have it?" asked Justice Antonin Scalia.

"The court has not said that yet, but it can in this case," Hubachek replied.

"Never done," Scalia answered.

Justice Anthony M. Kennedy said Hubachek was asking for a remedy that "involves this court in a highly intrusive exercise of the congressional power."

Chief Justice John G. Roberts Jr. joined them.

He asked the government's lawyer defending the law that "if the court were to determine that this does violate the Equal Protection Clause, and the court were also to determine that this is not a case that should be the first one in history in which it grants naturalization, what do you think the court ought to do?"

Deputy Solicitor General Edwin S. Kneedler answered that the court should make it equally hard for the children of mothers to gain citizenship, rather than making it easier for Flores-Villar.

There is no dispute that the federal law differentiates between men and women. For those born before 1986 - Flores-Villar was born in 1974 - their unwed American fathers had to have lived in the United States for 10 years, at least five of them after the age of 14, in order for their citizenship to be passed on. (Flores-Villar's father was only 16 when his son was born, so it was impossible for him to qualify.)

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