Sexual Stereotypes Split High Court
By Joan Biskupic
By a 6 to 3 vote, the justices rejected an equal-rights challenge to one of the few remaining federal statutes that treats people differently depending on their gender. The law automatically grants citizenship to a child born out of wedlock in a foreign country if the mother is American, but the standard is higher if the father is the American.
The ruling, and the forceful opinions read from the court's mahogany bench, were noteworthy not so much for changing federal law (they did not) or affecting great numbers of would-be citizens (they will not) but rather for the rare window they offered onto two distinct camps among the high court justices and their competing views on the role of men and women in society.
As he announced the majority judgment of the court, Justice John Paul Stevens, joined by Chief Justice William H. Rehnquist, presumed in his opinion that there is a closer connection between a mother and her child than a father and child.
But Justice Ruth Bader Ginsburg, who chastised Stevens for looking at what "typically" or "normally" should happen in a family, countered that the law at issue "treats mothers one way, fathers another, shaping government policy to fit and reinforce the stereotype or historic pattern." She was joined in her dissent by Justices Stephen G. Breyer and David H. Souter.
Ginsburg and the other dissenters took a pure, absolute approach to equality between the sexes while Stevens and Rehnquist argued that there are plenty of practical reasons to view women differently from men, at least when it comes to their roles as parents. A mother, if for no other reason than she gives birth, necessarily has a clearer relationship to a child; a father if he chooses can play a very fleeting role.
Perhaps not coincidentally, the two camps most in opposition yesterday are marked by generational and personal differences. Stevens, 78, and Rehnquist, 73, are the court's eldest justices. Breyer, 59, and Souter, 58, are among the youngest. Ginsburg, 65, only the second woman to ever serve on the court, earned a national reputation in the 1970s defending the rights of women.
How the justices look on gender roles can be critical because the court is called upon to resolve the nation's most difficult cases of sex discrimination and other disputes where traditions and stereotypes are part of the backdrop. And the justices internal differences mirror the kinds of dilemmas that surface regularly in statehouses nationwide and in Congress as issues from child custody to family medical leave are debated.
Ginsburg, Breyer and Souter insisted that the law was unconstitutional sex discrimination and they attacked the views of their colleagues, Stevens and Rehnquist, as based on an unfair stereotype of parental roles.
Taking the unusual step of reading part of his dissent aloud, Breyer said the citizenship rule rested on the flawed generalization that mothers are significantly more likely than fathers to care for their children and to develop deep relationships with them.
"What sense does it make to apply these [citizenship barriers] only to fathers and not to mothers in today's world -- where paternity can readily be proved and where women and men both are likely to earn a living in the workplace," Breyer added in his written statement.
The six justices in the majority yesterday splintered into three pairs, each writing separately, with distinct reasons for upholding the law. Stevens's opinion focused on the law's merits and was signed only by Rehnquist. Justices Sandra Day O'Connor and Anthony M. Kennedy agreed that the law should be upheld, but did not fully address the sex discrimination claim, saying the daughter could not raise that issue on behalf of her father.
Justices Antonin Scalia and Clarence Thomas said the court was going beyond its congressionally granted authority to even decide a citizenship dispute.
The case was brought by Lorelyn Penero Miller, who was born out of wedlock 28 years ago to a Filipino mother and an American father. 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 rejected because her father had not, as was required by law, established paternity before she turned 21. (The law now says paternity has to be shown by age 18.)
Lower courts rejected Miller's complaint that the law violates the constitutional guarantee of equal protection of the law, saying that Congress has broad discretion when it comes to granting citizenship. The Justice Department argued that the law reflects the reality that a mother always is present at a child's birth and naturally bound to the child. The department said the additional citizenship requirements for a child born out of wedlock to an American father ensures that his commitment to the child is real and the child would be supported in this country.
Stevens agreed with that, noting that an unmarried father may not even know that his child exists and arguing in Miller v. Albright that ensuring reliable proof of a biological relationship between a father and child seeking citizenship serves important governmental goals.
While O'Connor and Kennedy contended that Miller did not have a right to bring suit on behalf of her father, they noted that "it is unlikely . . . that any gender classifications based on stereotypes can survive heightened scrutiny." Breyer suggested in his opinion that, had the father challenged the law, there would be five votes to strike it down.
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