Gender, immigration, and the Supreme Court

Interesting result from the Supreme Court yesterday affirming  9th circuit ruling on an immigration case:

(Washington, D.C.)  Today in Flores-Villar  v. United States, the Supreme Court split 4-4 and affirmed the 9th Circuit Court of Appeals ruling upholding the constitutionality of a provision that makes it more difficult for an unmarried citizen father to transfer U.S. citizenship to his child born abroad than for an unmarried citizen mother to do so. Justice Elena Kagan did not participate in the decision due to her prior involvement in the case during her tenure at the Solicitor General’s office.

Given the recent history of jurisprudence on legislation that treats men and women differently, this one really surprised me.  Nice little bit of analysis from ACS:

The facts of Flores-Villar v. United States illustrate how such disparate requirements unjustly discriminate against fathers based on the stereotype that mothers, not fathers, care for their children. Ruben Flores-Villar’s father brought him to the U.S. when he was two months old and legally acknowledged him. Although his father raised him as a single parent, he was barred by the law from transmitting citizenship to his son, because he was 16 years old when Flores-Villar was born. Thus, it was physically impossible for him to satisfy the requirement that five years of his residency occur after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would be a citizen today.

The U.S. Court of Appeals for the 9th Circuit upheld the law in response to Flores-Villar’s constitutional challenge. The court failed to take into account that gender stereotypes that presume fathers are less responsible for child rearing influenced the passage of the law, despite the fact that laws that discriminate between men and women based on gender stereotypes have routinely been struck down as violating the Constitution.

I’d really like to read the opinion (I’m not, I’m thinking Dahlia Lithwick will have a Slate piece on this soon– I found out via her facebook feed), but I really do wonder how you can justify this decision without resorting to gender stereotypes.  This case is not going to have far-reaching impact, but it does show the downside of having Kagan on the court– lots of recusals.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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