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.)
Unmarried American mothers need only have lived in the country continuously for a year before the birth of a child.
The law was changed in 1986 to shorten the residency time for fathers to five years, only two of which had to be after the age of 14, but the requirement for mothers remained the same.
Hubachek said Congress's requirements were "based upon gender stereotypes that women, not men, would care . . . for non-marital children."
Asked Scalia: "What separates a stereotype from a reality?"
Justice Ruth Bader Ginsburg jumped in to answer. "In all cases, it is true in general, but there are people who don't fit the mold," she said. "So a stereotype is true for maybe the majority of cases."
For Ginsburg, the case may have seemed like old times, when she was a pioneering lawyer on the other side of the bench scouring federal statutes for places where men and women were treated differently.
During the argument, she seemed to be an advocate of Flores-Villar, and invoked several of the cases she had worked on as a lawyer for the American Civil Liberties Union. Her favorite tactic in eliminating gender discrimination was to represent men who were affected by such laws.
In this case, she said, "Congress has passed a statute making certain people citizens and the question is: Has it done so in a way that is compatible with equal protection?"
Kneedler said Congress had justifiable reasons for differentiating between mothers and fathers. It has to take into account laws of the country in which the child is born, he said, and governments have an interest in making sure the child is not "stateless." It is obvious who a child's mother is, he said, but not always his or her father.
The court decided in a previous case, Nguyen v. INS, that the government could impose additional requirements on unwed fathers who wanted to transfer citizenship to children without violating the equal protection clause.
Ginsburg and Justice Stephen G. Breyer were dissenters in that case, and, along with Justice Sonia Sotomayor, were the most critical of the government in the current case.
Only eight justices are hearing the Flores-Villar case because Elena Kagan, the court's newest member, is recused. That raised the possibility that the justices could reach a tie, which would allow a lower court's decision against Flores-Villar to stand.
Scalia wondered whether the justices should even decide the merits of the case, because he thought that none of the remedies available to the court would do anything for Flores-Villar.
The case is Flores-Villar v. U.S.