High Court Hears Citizenship Dispute
By Joan Biskupic
In a case challenging sexual stereotypes, the Supreme Court heard oral arguments yesterday on a national policy that favors mothers over fathers in determining whether children born out of wedlock overseas can become U.S. citizens.
Federal law says a child born in a foreign country to an unmarried American mother and a foreign father is automatically considered a U.S. citizen. But citizenship barriers arise for a child born out of wedlock whose father is American but whose mother is not.
Lorelyn Penero Miller, who was born out of wedlock 27 years ago to a Filipino mother and an American father, claimed the distinction violates the constitutional guarantee of equal protection of the laws. Her father had been stationed in the Philippines for the U.S. military.
Miller applied for citizenship in 1992, while she was living with her father in Texas, but was turned down because her father had not, as required by law, established paternity before she turned 21. Lower courts upheld the policy, relying on Supreme Court precedent giving Congress broad discretion on immigration and citizenship policy. (The law now says the paternity has to be demonstrated before the child is 18.)
During arguments yesterday on Miller's appeal, Justice Ruth Bader Ginsburg suggested the law was unfairly based on a stereotype that women have closer ties to their children than do men.
The former women's rights advocate who had won several cases challenging government distinctions based on sex noted that the court previously had said government cannot rely on stereotypes for treating the sexes differently. She asked a Justice Department lawyer whether the government was retreating from its opposition in earlier cases to sex discrimination.
"Why an exception here?" she asked.
Deputy Solicitor General Edwin S. Kneedler emphasized Congress's authority in the area of immigration and naturalization and said Congress had sufficient grounds to require specific evidence of a bond between an out-of-wedlock child and his or her father. Kneedler also said the burden on any father, to establish paternity in writing under oath or in court, is minimal.
The Justice Department says the law reflects the reality that a mother always is present at a child's birth and that Congress's stricter requirements on a father ensure that his paternal commitment is real and that the child will not end up on welfare.
Justice Stephen G. Breyer joined Ginsburg in particular scrutiny of the law yesterday, saying it relied on generalizations of which parent would be a child's "caretaker" and calling that basis "close to irrational."
But many of the other justices appeared readier to reject the challenge.
Chief Justice William H. Rehnquist emphasized the court's traditional deference to Congress on citizenship matters, and Justice John Paul Stevens suggested it was reasonable for Congress to believe that a U.S. serviceman who fathers a child on a tour of duty might not be ready to develop a parental relationship.
Arguing on behalf of Miller, Donald R. Patterson urged the justices to strike down the law as based on unsubstantiated belief that mothers would be more personally responsible to their children than fathers would. A ruling in the case of Miller v. Albright is likely sometime before the court recesses next summer.
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