OCTOBER TERM, 1997
Syllabus
MILLER
v. ALBRIGHT, SECRETARY OF STATE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 96-1060. Argued November 4, 1997-Decided April 22, 1998
Petitioner was born out of wedlock in 1970 in the Philippines.
Her mother is a Filipino national. Her father, Charlie Miller, is
an American citizen residing in Texas who served in the United
States military in the Philippines at the time of petitioner's
conception. He never married petitioner's mother, and there is no
evidence that he was in the Philippines at the time of her birth or
that he ever returned there after completing his tour of duty. In
1992, the State Department denied petitioner's application for
registration as a United States citizen. After a Texas court
granted Mr. Miller's petition for a paternity decree finding him to
be her father, petitioner reapplied for citizenship status, which
was again denied on the ground that the Texas decree did not
satisfy 8 U. S. C. § 1409(a)(4)'s requirement that a child born out
of wedlock and outside the United States to an alien mother and an
American father be legitimated before age 18 in order to acquire
citizenship. Petitioner and Mr. Miller then sued the Secretary of
State in Federal District Court in Texas, seeking a judgment
declaring her to be a United States citizen. They emphasized that
the citizenship of an out-of-wedlock, foreign-born child of an
alien father and an American mother is established at birth under §
1409(c), and alleged that § 1409's different treatment of citizen
fathers and citizen mothers violated Mr. Miller's Fifth Amendment
equal protection right by utilizing the suspect classification of
gender without justification. Concluding that Mr. Miller did not
have standing, the court dismissed him as a party and transferred
venue to the District Court for the District of Columbia. That
court dismissed the suit on the ground that federal courts do not
have power to grant citizenship. The Court of Appeals affirmed,
holding that petitioner had standing to sue, but concluding that
the § 1409 requirements imposed on a child like her, but not on the
foreign-born, out-of-wedlock child of an American mother, were
justified by governmental interests in fostering the child's ties
with this country and with her citizen parent.
Held: The judgment is affirmed.
96
F.3d 1467, affirmed.
JUSTICE STEVENS, joined by THE CHIEF JUSTICE, concluded that §
1409(a)(4)'s requirement that children born abroad and out of
wedlock to citizen fathers, but not to citizen mothers, obtain
formal
421
proof of paternity by age 18 does not violate the Fifth
Amendment. Pp.428-445.
(a) The foregoing is the only issue presented by this case's
facts.
Certain other issues need not be resolved: Whether
Fiallo
v.
Bell, 430 U. S. 787, dictates the outcome here; the
validity of the distinction drawn by §§ 1401(g) and 1409(c) between
residency requirements for unmarried citizen fathers and unmarried
citizen mothers wishing to transmit citizenship at birth to their
foreign-born, out-of-wedlock children; and the validity of §§
1409(a)(1) and (a)(3), which impose additional requirements on
citizen fathers wishing to transmit such citizenship. Because
petitioner is contesting the Government's refusal to register and
treat her as a citizen, a judgment in her favor would confirm her
pre-existing citizenship rather than grant her rights that she does
not now possess. The Court of Appeals was therefore correct that
she has standing to invoke the federal courts' jurisdiction.
Moreover, because her claim relies heavily on the proposition that
her citizen father should have the same right to transmit
citizenship as would a citizen mother, the Court should evaluate
the alleged discrimination against him, as well as its impact on
her. See,
e. g., Craig v.
Boren, 429 U. S. 190, 193197.
Pp.428-433.
(b) The § 1409(a)(4) rule applicable to each class of
out-of-wedlock children born abroad is eminently reasonable and
justified by important Government interests: ensuring reliable
proof that a person born out of wedlock who claims citizenship by
birth actually shares a blood relationship with an American
citizen; encouraging the development of a healthy relationship
between the citizen parent and the child while the child is a
minor; and fostering ties between the child and the United States.
Male and female parents of foreign-born, out-of-wedlock children
are differently situated in several pertinent respects. The child's
blood relationship to its birth mother is immediately obvious and
is typically established by hospital records and birth
certificates, but the relationship to the unmarried father may
often be undisclosed and unrecorded in any contemporary public
record. Similarly, the child's birth mother certainly knows of the
child's existence and typically will have immediate custody,
whereas, due to the normal interval of nine months between
conception and birth, an unmarried father may not even know that
his child exists, and the child may not know the father's identity.
Section 1409(a)(4)'s requirement-that children born out of wedlock
to citizen fathers obtain formal proof of paternity by age 18,
either through legitimation, written acknowledgment by the father
under oath, or adjudication by a competent court-is well tailored
to address these concerns. The conclusion that Congress may require
an affirmative act by unmarried fathers and their children, but not
mothers and their
422
Syllabus
children, is directly supported by
Lehr v.
Robertson, 463
U. S. 248. pp. 433-441.
(c) The argument that § 1409(a)(4) is unconstitutional because
it is a stereotypical "gender-based classification" must be
rejected. None of the governmental interests underlying §
1409(a)(4) can be fairly characterized as an accidental byproduct
of a traditional way of thinking about the members of either sex.
The biological differences between single men and single women
provide a relevant basis for differing rules governing their
ability to confer citizenship on children born out of wedlock in
foreign lands, and an impartial analysis of those differences
rebuts the strong presumption that gender-based legal distinctions
are suspect. pp. 442-445.
JUSTICE O'CONNOR, joined by JUSTICE KENNEDY, concluded that
petitioner should not be accorded standing to raise her father's
gender discrimination claim. This Court applies a presumption
against thirdparty standing as a prudential limitation on the
exercise of federal jurisdiction, see,
e. g., Singleton v.
Wulff, 428 U.
S. 106, 113, and that presumption may only be rebutted in
particular circumstances: where a litigant has suffered injury in
fact and has a close relation to a third party, and where some
hindrance to the third party's ability to protect his or her own
interests exists, see
Powers v.
Ohio, 499 U. S. 400, 411.
Petitioner has not demonstrated a genuine obstacle to her father's
ability to assert his own rights that rises to the level of a
hindrance. Accordingly, she is precluded from raising his equal
protection claims in this case. Although petitioner may still
assert her own rights, she cannot invoke a gender discrimination
claim that would trigger heightened scrutiny. Section 1409 draws a
distinction based on the gender of the parent, not the child, and
any claim of discrimination based on differential treatment of
illegitimate versus legitimate children is not presented in the
question on which certiorari was granted. Thus, petitioner's own
constitutional challenge is subject only to rational basis
scrutiny. Even though § 1409 could not withstand heightened
scrutiny, it is sustainable under the lower standard. Pp.
445-452.
JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed with the
outcome of this case on the ground that the complaint must be
dismissed because the Court has no power to provide the relief
requested: conferral of citizenship on a basis other than that
prescribed by Congress. Petitioner, having been born outside United
States territory, can only become a citizen by naturalization under
congressional authority. See,
e. g., United States v.
Wong Kim Ark, 169 U. S. 649, 702-703.
If there is no congressional enactment granting her citizenship,
she remains an alien. By its plain language, 8 U. S. C. § 1409 sets
forth a precondition to the acquisition of citizenship that
petitioner admittedly has not met.
423
Thus, even if the Court were to agree that the difference in
treatment between the illegitimate children of citizen fathers and
citizen mothers is unconstitutional, it could not, consistent with
the extremely limited judicial power in this area, see,
e. g.,
Fiallo v.
Bell, 430 U. S. 787, 792,
remedy that constitutional infirmity by declaring petitioner to be
a citizen or ordering the State Department to approve her
application for citizenship, see
INS v.
Pangilinan,
486 U. S. 875,
884. This is not a case in which the Court may remedy an alleged
equal protection violation by either expanding or limiting the
benefits conferred so as to deny or grant them equally to all. Pp.
452-459.
STEVENS, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., joined. O'CONNOR, J., filed
an opinion concurring in the judgment, in which KENNEDY, J.,
joined,
post, p. 445. SCALIA, J., filed an opinion
concurring in the judgment, in which THOMAS, J., joined,
post, p. 452. GINSBURG, J., filed a dissenting opinion, in
which SOUTER and BREYER, JJ., joined,
post, p. 460. BREYER,
J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ.,
joined,
post, p. 471.
Donald Ross Patterson argued the cause and filed briefs
for petitioner.
Deputy Solicitor General Kneedler argued the cause for
respondent. With him on the brief were Acting Solicitor General
Dellinger, Assistant Attorney General Hunger, Edward C. DuMont,
Michael Jay Singer, and John S. Koppel. *
JUSTICE STEVENS announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE joins.
There are "two sources of citizenship, and two only: birth and
naturalization."
United States v.
Wong Kim Ark, 169
U. S. 649, 702 (1898). Within the former category, the Fourteenth
Amendment of the Constitution guarantees that every person "born in
the United States, and subject to the
*Walter A. Smith, Jr., Steven R. Shapiro, Lucas Guttentag, Sara
L.
Mandelbaum, and
Martha Davis filed a brief for the
American Civil Liberties Union et al. as
amici curiae urging
reversal.
424
Opinion of STEVENS, J.
jurisdiction thereof, becomes at once a citizen of the United
States, and needs no naturalization." 169 U. S., at 702. Persons
not born in the United States acquire citizenship by birth only as
provided by Acts of Congress.
Id., at 703.
The petitioner in this case challenges the constitutionality of
the statutory provisions governing the acquisition of citizenship
at birth by children born out of wedlock and outside of the United
States. The specific challenge is to the distinction drawn by § 309
of the Immigration and Nationality Act (INA), 66 Stat. 238, as
amended, 8 U. S. C. § 1409, between the child of an alien father
and a citizen mother, on the one hand, and the child of an alien
mother and a citizen father, on the other. Subject to residence
requirements for the citizen parent, the citizenship of the former
is established at birth; the citizenship of the latter is not
established unless and until either the father or his child takes
certain affirmative steps to create or confirm their relationship.
Petitioner contends that the statutory requirement that those steps
be taken while the child is a minor violates the Fifth Amendment
because the statute contains no limitation on the time within which
the child of a citizen mother may prove that she became a citizen
at birth.
We find no merit in the challenge because the statute does not
impose any limitation on the time within which the members of
either class of children may prove that they qualify for
citizenship. It does establish different qualifications for
citizenship for the two classes of children, but we are persuaded
that the qualifications for the members of each of those classes,
so far as they are implicated by the facts of this case, are well
supported by valid governmental interests. We therefore conclude
that the statutory distinction is neither arbitrary nor
invidious.
I
Petitioner was born on June 20, 1970, in Angeles City, Republic
of the Philippines. The records of the Local Civil
425
Registrar disclose that her birth was registered 10 days later,
that she was named Lorena Pefiero, that her mother was Luz Pefiero,
a Filipino national, and that her birth was "illegitimate." Spaces
on the form referring to the name and the nationality of the father
are blank.
Petitioner grew up and received her high school and college
education in the Philippines. At least until after her 21st
birthday, she never lived in the United States. App. 19. There is
no evidence that either she or her mother ever resided outside of
the Philippines.1
Petitioner's father, Charlie Miller, is an American citizen
residing in Texas.2 He apparently served in the United States Air
Force and was stationed in the Philippines at the time of
petitioner's conception.
Id., at 21. He never married
petitioner's mother, and there is no evidence that he was in the
Philippines at the time of petitioner's birth or that he ever
returned there after completing his tour of duty. In 1992, Miller
filed a petition in a Texas court to establish his relationship
with petitioner. The petition was unopposed and the court entered a
"Voluntary Paternity Decree" finding him "to be the biological and
legal father of Lorelyn Penero Miller." The decree provided that
"[t]he parent-child relationship is created between the father and
the child as if the child were born to the father and mother during
marriage." App. to Pet. for Cert. 38.
1 Her mother was born in Leyte. Several years after petitioner's
birth, her mother married a man named Frank Raspotnik and raised a
family in Angeles City. App. 22.
2 Although there is no formal finding that his paternity has
been established by clear and convincing evidence, it is
undisputed. In a letter to petitioner's attorney, the State
Department acknowledged that it was "satisfied that Mr. Charlie R.
Miller, the putative father, is a U. S. citizen, that he possesses
sufficient physical presence in the United States to transmit
citizenship, and that there is sufficient evidence that he had
access to the applicant's mother at the probable time of
conception." App. to Pet. for Cert. 32-33.
426
Opinion of STEVENS, J.
In November 1991, petitioner filed an application for
registration as a United States citizen with the State Department.
The application was denied in March 1992, and petitioner reapplied
after her father obtained the paternity decree in Texas in July
1992. The reapplication was also denied on the ground that the
Texas decree did not satisfy "the requirements of Section 309(a)(4)
INA, which requires that a child born out of wedlock be legitimated
before age eighteen in order to acquire U. S. citizenship under
Section 301(g) INA (formerly Section 301(a)(7) INA)."
Id.,
at 33. In further explanation of its reliance on § 309(a)( 4), the
denial letter added: "Without such legitimation before age
eighteen, there is no legally recognized relationship under the IN
A and the child acquires no rights of citizenship through an
American citizen parent." 3
Ibid.
II
In 1993, petitioner and her father filed an amended complaint
against the Secretary of State in the United States District Court
for the Eastern District of Texas, seeking a judgment declaring
that petitioner is a citizen of the United States and that she
therefore has the right to possess an American passport. They
alleged that the INNs different treatment of citizen mothers and
citizen fathers violated Mr. Miller's "right to equal protection
under the laws by utilizing the suspect classification of gender
without justification." App. 11. In response to a motion to dismiss
filed by the
3 The comment, of course, related only to cases in which the
child born out of wedlock claims citizenship through her father.
Moreover, the reference to age 18 was inaccurate; petitioner was
born prior to 1986, when § 309(a) was amended to change the
relevant age from 21 to 18, see Pub. L. 99-653, § 13, 100 Stat.
3657, and she falls within a narrow age bracket whose members may
elect to have the pre amendment law apply, see note following 8 U.
S. C. § 1409 (Effective Date of 1986 Amendment) (quoting §23(e), as
added, Pub. L. 100-525, §8(r), 102 Stat. 2619). This oversight does
not affect her case, however, because she was over 21 when the
Texas decree was entered.
427
Government, the District Court concluded that Mr. Miller did not
have standing and dismissed him as a party. Because venue in Texas
was therefore improper, see 28 U. S. C. § 1391(e), the court
transferred the case to the District Court for the District of
Columbia, the site of the Secretary's residence. The Government
renewed its motion in that forum, and that court concluded that
even though petitioner had suffered an injury caused by the
Secretary's refusal to register her as a citizen, the injury was
not "redressable" because federal courts do not have the power to
"grant citizenship." 870 F. Supp. 1, 3 (1994) (citing
INS v.
Pangilinan, 486 U. S. 875,884
(1988)).
The Court of Appeals for the District of Columbia Circuit
affirmed, but on different grounds. It first held that petitioner
does have standing to challenge the constitutionality of 8 U. S. C.
§ 1409(a). If her challenge should succeed, the court could enter a
judgment declaring that she was already a citizen pursuant to other
provisions of the INA.
96 F.3d
1467, 1470 (1996). On the merits, however, the court concluded
that the requirements imposed on the "illegitimate" child of an
American citizen father, but not on the child of a citizen mother,
were justified by the interest in fostering the child's ties with
this country. I t explained:
"[WJe conclude, as did the Ninth Circuit, that 'a desire to
promote early ties to this country and to those relatives who are
citizens of this country is not a[n ir]rational basis for the
requirements made by' sections 1409(a)(3) and (4). Ablang
[v. Reno], 52 F.3d
806. Furthermore, we find it entirely reasonable for Congress
to require special evidence of such ties between an illegitimate
child and its father. A mother is far less likely to ignore the
child she has carried in her womb than is the natural father, who
may not even be aware of its existence. As the Court has
recognized, 'mothers and fathers of illegitimate children are not
similarly situated.' Parham v. Hughes, 441 U. S. 347, 355
(1979).
428
Opinion of STEVENS, J.
'The putative father often goes his way unconscious of the birth
of the child. Even if conscious, he is very often totally
unconcerned because of the absence of any ties to the mother.'
Id. at 355 n. 7 (internal quotation marks and citation
omitted). This sex-based distinction seems especially warranted
where, as here, the applicant for citizenship was fathered by a U.
S. serviceman while serving a tour of duty overseas." Id.,
at 1472.
Judge Wald concurred in the judgment despite her opinion that
there is "no rational basis for a law that requires a U. S. citizen
father, but not a U. S. citizen mother, to formally legitimate a
child before she reaches majority as well as agree in writing to
provide financial support until that date or forever forfeit the
right to transmit citizenship."
Id., at 1473. While she
agreed that "requiring some sort of minimal 'family ties' between
parent and child, as well as fostering an early connection between
child and country, is rational government policy," she did not
agree that those goals justify "a set of procedural hurdles for
men-and only men-who wish to confer citizenship on their children."
Id., at 1474. She nevertheless regretfully concurred in the
judgment because she believed that our decision in
Fiallo v.
Bell, 430 U.
S. 787 (1977), required the court to uphold the
constitutionality of § 1409. 96 F. 3d, at 1473.
We granted certiorari to address the following question:
"Is the distinction in 8 U. S. C. § 1409 between 'illegitimate'
children of United States citizen mothers and 'illegitimate'
children of United States citizen fathers a violation of the Fifth
Amendment to the United States Constitution?" 520 U. S. 1208
(1997).
III
Before explaining our answer to the single question that we
agreed to address, it is useful to put to one side certain
429
issues that need not be resolved. First, we need not decide
whether
Fiallo v.
Bell dictates the outcome of this
case, because that case involved the claims of several aliens to a
special immigration preference, whereas here petitioner claims that
she is, and for years has been, an American citizen.4 Additionally,
Fiallo involved challenges to the statutory distinctions
between "illegitimate" and "legitimate" children, which are not
encompassed in the question presented in this case and which we
therefore do not consider.
The statutory provision at issue in this case, 8 U. s. c. §
1409, draws two types of distinctions between citizen fathers and
citizen mothers of children born out of wedlock. The first relates
to the class of unmarried persons who may transmit citizenship at
birth to their offspring, and the second defines the affirmative
steps that are required to transmit such citizenship.
With respect to the eligible class of parents, an unmarried
father may not transmit his citizenship to a child born abroad to
an alien mother unless he satisfies the residency require-
4 The sections of the IN A challenged in
Fiallo defined
the terms "child" and "parent," which determine eligibility for the
special preference immigration status accorded to the "children"
and "parents" of United States citizens and lawful permanent
residents.
Fiallo v.
Bell, 430 U. S. 787, 788-789
(1977). '"Child''' was defined to include '''an illegitimate child,
by, through whom, or on whose behalf a status, privilege, or
benefit is sought by virtue of the relationship of the child to its
natural mother.'''
Id., at 788-789, n. 1 (quoting 8 U. S. C.
§ 1l01(b)(1)(D) (1976 ed.)). Thus, the statute did not permit an
illegitimate child to seek preference by virtue of relationship
with its citizen or resident father, nor could an alien father seek
preference based on his illegitimate child's citizenship or
residence. 430 U. S., at 789. Following this Court's decision in
Fiallo upholding those provisions, in 1986 Congress amended
the INA to recognize "child" and "parent" status where the
preference is sought based on the relationship of a child born out
of wedlock to its natural father "if the father has or had a bona
fide parent-child relationship with the person." Pub. L. 99-603, §
315(a), 100 Stat. 3439, as amended, 8 U. S. C. § 1l01(b)(1)(D)
(1982 ed., Supp. IV).
430
Opinion of STEVENS, J.
ment in § 1401(g) that applies to a citizen parent who is
married to an alien.5 Under that provision, the citizen parent must
have resided in the United States for a total of at least five
years, at least two of which were after attaining the age of 14
years.6 If the citizen parent is an unmarried mother, however, §
1409(c) rather than § 1401(g) applies; under that subsection she
need only have had one year of continuous residence in the United
States in order to confer citizenship on her offspring.7 Since
petitioner's father satisfied the residency requirement in §
1401(g), the validity of the distinction between that requirement
and the unusually generous provision in § 1409(c) is not at
issue.8
5 See 8 U. S. C. § 1409(a) (directing that §§ 1401(c), (d), (e),
(g) and 1408(2) "shall apply" if the specified conditions of §
1409(a) are met).
6 Title 8 U. S. C. § 1401 provides:
"The following shall be nationals and citizens of the United
States at birth:
"(g) a person born outside the geographical limits of the United
States and its outlying possessions of parents one of whom is an
alien, and the other a citizen of the United States who, prior to
the birth of such person, was physically present in the United
States or its outlying possessions for a period or periods totaling
not less than five years, at least two of which were after
attaining the age of fourteen years .... "
Prior to its amendment in 1986, the section had required
residence of 10 total years, at least 5 of which were after
attaining the age of 14. See § 301(a)(7), 66 Stat. 236.
7 Section 309(c) of the INA, codified in 8 U. S. C. § 1409(c),
provides: "(c) Notwithstanding the provision of subsection (a) of
this section, a person born, after December 23, 1952, outside the
United States and out of wedlock shall be held to have acquired at
birth the nationality status of his mother, if the mother had the
nationality of the United States at the time of such person's
birth, and if the mother had previously been physically present in
the United States or one of its outlying possessions for a
continuous period of one year."
8 The Government has offered two explanations for the special
rule applicable to unmarried citizen mothers who give birth abroad:
first, an assumption that the citizen mother would probably have
custody, and second,
431
As for affirmative steps, § 1409(a), as amended in 1986, imposes
four requirements concerning unmarried citizen fathers that must be
satisfied to confer citizenship "as of the date of birth" on a
person born out of wedlock to an alien mother in another country.
Citizenship for such persons is established if:
"(1) a blood relationship between the person and the father is
established by clear and convincing evidence, "(2) the father had
the nationality of the United States at the time of the person's
birth,
"(3) the father (unless deceased) has agreed in writing to
provide financial support for the person until the person reaches
the age of 18 years, and
"(4) while the person is under the age of 18 years"(A) the
person is legitimated under the law of the person's residence or
domicile,
"(B) the father acknowledges paternity of the person in writing
under oath, or
"(C) the paternity of the person is established by adjudication
of a competent court." 8 U. S. C. § 1409(a).
Only the second of these four requirements is expressly included
in § 1409(c), the provision applicable to unwed citizen mothers.
See n. 7,
supra. Petitioner, relying heavily on Judge Wald's
separate opinion below, argues that there is no rational basis for
imposing the other three requirements on children of citizen
fathers but not citizen mothers. The first requirement is not at
issue here, however, because the Government does not question Mr.
Miller's blood relationship with petitioner.
that in most foreign countries the nationality of an
illegitimate child is that of the mother unless paternity has been
established. The Government submits that the special rule would
minimize the risk that such a child might otherwise be stateless.
See Brief for Respondent 32-34.
432
Opinion of STEVENS, J.
Moreover, even though the parties have disputed the validity of
the third condition 9-and even though that condition is repeatedly
targeted in JUSTICE BREYER'S dissent-we need not resolve that
debate because it is unclear whether the requirement even applies
in petitioner's case; it was added in 1986, after her birth, and
she falls within a special interim provision that allows her to
elect application of the preamendment § 1409(a), which required
only legitimation before age 21. See n. 3,
supra. And even
if the condition did apply to her claim of citizenship, the State
Department's refusal to register petitioner as a citizen was
expressly based on § 1409(a)(4). Indeed, since that subsection is
written in the disjunctive, it is only necessary to uphold the
least onerous of the three alternative methods of compliance to
sustain the Government's position. Thus, the only issue presented
by the facts of this case is whether the requirement in §
1409(a)(4)-that children born out of wedlock to citizen fathers,
but not citizen mothers, obtain formal proof of paternity by age
18, either through legitimation, written acknowledgment by the
father under oath, or adjudication by a competent court-violates
the Fifth Amendment.
It is of significance that the petitioner in this case, unlike
the petitioners in
Fiallo, see 430 U. S., at 790, and n. 3,
is not challenging the denial of an application for special status.
She is contesting the Government's refusal to register and treat
her as a citizen. If she were to prevail, the judgment in her favor
would confirm her pre-existing citizenship rather than grant her
rights that she does not now possess.
9 The Government asserts that the purpose of § 1409(a)(3) is
"'to facilitate the enforcement of a child support order and, thus,
lessen the chance that the child could become a financial burden to
the states.''' Brief for Respondent 25-26, n. 13 (quoting Hearings
on H. R. 4823 et al. before the Subcommittee on Immigration,
Refugees, and International Law of the House Committee on the
Judiciary, 99th Cong., 2d Sess., 150 (1986) (statement of Joan M.
Clark, Assistant Secretary of State for Consular Mfairs)
(hereinafter Hearings)).
433
We therefore agree with the Court of Appeals that she has
standing to invoke the jurisdiction of the federal courts. See 96
F. 3d, at 1469-1470 (distinguishing
INS v.
Pangilinan, 486 U. S. 875 (1988)).
Moreover, because her claim relies heavily on the proposition that
her citizen father should have the same right to transmit
citizenship as would a citizen mother, we shall evaluate the
alleged discrimination against him as well as its impact on her.
See,
e. g., Craig v.
Boren, 429 U. S. 190, 193-197
(1976).10
IV
Under the terms of the INA, the joint conduct of a citizen and
an alien that results in conception is not sufficient to produce an
American citizen, regardless of whether the citizen parent is the
male or the female partner. If the two parties engage in a second
joint act-if they agree to marry one another-citizenship will
follow. The provision at issue in this case, however, deals only
with cases in which no relevant joint conduct occurs after
conception; it determines the ability of each of those parties,
acting separately, to confer citizenship on a child born outside of
the United States.
If the citizen is the unmarried female, she must first choose to
carry the pregnancy to term and reject the alternative of
abortion-an alternative that is available by law to many, and in
reality to most, women around the world. She must then actually
give birth to the child. Section 1409(c) re-
10 As a threshold matter, the Government now argues-though it
never asserted this position below or in opposition to
certiorari-that an alien outside the territory of the United States
"has no substantive rights cognizable under the Fifth Amendment."
Brief for Respondent 11-12. Even if that is so, the question to be
decided is whether petitioner is such an alien or whether, as she
claims, she is a citizen. Thus, we must address the merits to
determine whether the predicate for this argument is accurate. In
the cases on which the Government relies,
Johnson v.
Eisentrager, 339 U. S. 763 (1950), and
United States v.
Verdugo-Urquidez, 494 U. S. 259
(1990), it was perfectly clear that the complaining aliens were not
citizens or nationals of the United States.
434
Opinion of STEVENS, J.
wards that choice and that labor by conferring citizenship on
her child.
If the citizen is the unmarried male, he need not participate in
the decision to give birth rather than to choose an abortion; he
need not be present at the birth; and for at least 17 years
thereafter he need not provide any parental support, either moral
or financial, to either the mother or the child, in order to
preserve his right to confer citizenship on the child pursuant to §
1409(a). In order retroactively to transmit his citizenship to the
child as of the date of the child's birth, all that § 1409(a)(4)
requires is that he be willing and able to acknowledge his
paternity in writing under oath while the child is still a minor. 8
U. s. C. § 1409(a)(4)(B). In fact, § 1409(a)(4) requires even less
of the unmarried fatherthat provision is alternatively satisfied
if, before the child turns 18, its paternity "is established by
adjudication of a competent court." § 1409(a)(4)(C). It would
appear that the child could obtain such an adjudication absent any
affirmative act by the father, and perhaps even over his express
objection.
There is thus a vast difference between the burdens imposed on
the respective parents of potential citizens born out of wedlock in
a foreign land. It seems obvious that the burdens imposed on the
female citizen are more severe than those imposed on the male
citizen by § 1409(a)(4), the only provision at issue in this case.
It is nevertheless argued that the male citizen and his offspring
are the victims of irrational discrimination because § 1409(a)(4)
is the product of" 'overbroad stereotypes about the relative
abilities of men and women.'" Brief for Petitioner 8. We find the
argument singularly unpersuasive.ll
11 Though petitioner claims to be a citizen from birth, rather
than claiming an immigration preference, citizenship does not pass
by descent. Rog
ers v.
Bellei, 401 U. S. 815, 830
(1971). Thus she must still meet the statutory requirements set by
Congress for citizenship.
Id., at 828-830;
United
States v.
Ginsberg, 243 U. S. 472, 474
(1917). Deference to the
435
Insofar as the argument rests on the fact that the male citizen
parent will "forever forfeit the right to transmit citizenship" if
he does not come forward while the child is a minor, whereas there
is no limit on the time within which the citizen mother may prove
her blood relationship, the argument overlooks the difference
between a substantive condition and a procedural limitation. The
substantive conduct of the unmarried citizen mother that qualifies
her child for citizenship is completed at the moment of birth; the
relevant conduct of the unmarried citizen father or his child may
occur at any time within 18 years thereafter. There is, however, no
procedural hurdle that limits the time or the method by which
either parent (or the child) may provide the State Department with
evidence that the necessary steps were taken to transmit
citizenship to the child.
The substantive requirement embodied in § 1409(a)(4) serves, at
least in part, to ensure that a person born out of wedlock who
claims citizenship by birth actually shares a blood relationship
with an American citizen. As originally enacted in 1952, § 1409(a)
required simply that "the paternity of such child [born out of
wedlock] is established while such child is under the age of
twenty-one years by legitimation." 66 Stat. 238. The section
offered no other means of proving a biological relationship. In
1986, at the same time that it modified the INA provisions at issue
in
Fiallo in favor of unmarried fathers and their
out-of-wedlock children, see n. 4,
supra, Congress expanded
§ 1409(a) to allow the two other alternatives now found in
subsections (4)(B) and (4)(C).
political branches dictates "a narrow standard of review of
decisions made by the Congress or the President in the area of
immigration and naturalization."
Mathews v.
Diaz,
426 U. S. 67,82
(1976). Even if, as petitioner and her
amici argue, the
heightened scrutiny that normally governs gender discrimination
claims applied in this context, see
United States v.
Virginia, 518
U. S. 515, 532-534 (1996), we are persuaded that the
requirement imposed by § 1409(a)(4) on children of unmarried male,
but not female, citizens is substantially related to important
governmental objectives.
436
Opinion of STEVENS, J.
Pub. L. 99-653, § 13, 100 Stat. 3657. The purpose of the
amendment was to "simplify and facilitate determinations of
acquisition of citizenship by children born out of wedlock to an
American citizen father, by eliminating the necessity of
determining the father's residence or domicile and establishing
satisfaction of the legitimation provisions of the jurisdiction."
Hearings, at 150. The 1986 amendment also added § 1409(a)(1), which
requires paternity to be established by clear and convincing
evidence, in order to deter fraudulent claims; but that standard of
proof was viewed as an ancillary measure, not a replacement for
proof of paternity by legitimation or a formal alternative. See
id., at 150, 155.
There is no doubt that ensuring reliable proof of a biological
relationship between the potential citizen and its citizen parent
is an important governmental objective. See Trim
ble v.
Gordon, 430 U.
S. 762, 770-771 (1977);
Fiallo, 430 U. S., at 799, n. 8.
Nor can it be denied that the male and female parents are
differently situated in this respect. The blood relationship to the
birth mother is immediately obvious and is typically established by
hospital records and birth certificates; the relationship to the
unmarried father may often be undisclosed and unrecorded in any
contemporary public record. Thus, the requirement that the father
make a timely written acknowledgment under oath, or that the child
obtain a court adjudication of paternity, produces the rough
equivalent of the documentation that is already available to
evidence the blood relationship between the mother and the child.
If the statute had required the citizen parent, whether male or
female, to obtain appropriate formal documentation within 30 days
after birth, it would have been "gender-neutral" on its face, even
though in practical operation it would disfavor unmarried males
because in virtually every case such a requirement would be
superfluous for the mother. Surely the fact that the statute allows
18 years in which to provide evidence that is comparable to what
the
437
mother provides immediately after birth cannot be viewed as
discriminating against the father or his child.
Nevertheless, petitioner reiterates the suggestion that it is
irrational to require a formal act such as a written acknowledgment
or a court adjudication because the advent of reliable genetic
testing fully addresses the problem of proving paternity, and
subsection (a)(l) already requires proof of paternity by clear and
convincing evidence. See 96 F. 3d, at 1474. We respectfully
disagree. Nothing in subsection (a)(l) requires the citizen father
or his child to obtain a genetic paternity test. It is difficult,
moreover, to understand why signing a paternity acknowledgment
under oath prior to the child's 18th birthday is more burdensome
than obtaining a genetic test, which is relatively expensive,12
normally requires physical intrusion for both the putative father
and child,13 and often is not available in foreign countries.14
Congress could fairly conclude that despite recent scientific
advances, it still remains preferable to require some formal legal
act to establish paternity, coupled with a clear-andconvincing
evidence standard to deter fraud. The time limi-
12 See 7 U. S. Dept. of State, Foreign Affairs Manual §
1131.5-4(c) (1996) (hereinafter Foreign Affairs Manual).
Commercially available testing in the United States presently
appears to cost between about $450 to $600 per test. See Hotaling,
Is He or Isn't He?, Los Angeles Times Magazine, Sept. 7, 1997, pp.
36, 54 (hereinafter Hotaling); Mirabella, Lab's Tests Give Answers
to Genetic Questions, Baltimore Sun, Nov. 25, 1997, pp. lC, 8C,
cols. 2, 4 (hereinafter Mirabella).
13 Laboratories that conduct genetic paternity testing typically
use either blood samples or cells scraped from the inside of the
cheek of the putative father, the child, and often the mother as
well. See,
e. g., 1 D. Faigman, D. Kaye, M. Saks, & J.
Sanders, Modern Scientific Evidence §§ 19-2.2, 19-2.7.1, pp. 761,
763, 775 (1997); Hotaling 36, 54; Mirabella, at 8C, cols. 2, 4.
14 The State Department has observed that "the competence,
integrity, and availability of blood testing physicians and
facilities vary around the world." 7 Foreign Affairs Manual §
1131.5-4(c). There are presently about 75 DNA testing laboratories
in the United States, 51 of which are accredited by the American
Association of Blood Banks. Hotaling 36.
438
Opinion of STEVENS, J.
tation, in turn, provides assurance that the formal act is based
upon reliable evidence, and also deters fraud.15 Congress is of
course free to revise its collective judgment and permit genetic
proof of paternity rather than requiring some formal legal act by
the father or a court,16 but the Constitution does not now require
any such change.
Section 1409 also serves two other important purposes that are
unrelated to the determination of paternity: the interest in
encouraging the development of a healthy relationship between the
citizen parent and the child while the child is a minor; and the
related interest in fostering ties between the foreign-born child
and the United States. When a child is born out of wedlock outside
of the United States, the citizen mother, unlike the citizen
father, certainly knows of her child's existence and typically will
have custody of the child immediately after the birth. Such a child
thus has the opportunity to develop ties with its citizen mother at
an early age, and may even grow up in the United States if the
mother returns. By contrast, due to the normal interval of nine
months between conception and birth, the unmarried father may not
even know that his child exists, and the child may not know the
father's identity. Section 1409(a)(4) requires a relatively easy,
formal step by either the citizen father or his child that shows
beyond doubt that at least one of the two knows of their blood
relationship, thus assuring at least the opportunity for them to
develop a personal relationship.
The facts of this very case provide a ready example of the
concern. Mr. Miller and petitioner both failed to take any steps to
establish a legal relationship with each other before
15 Once a child reaches the legal age of majority, a male
citizen could make a fraudulent claim of paternity on the person's
behalf without any risk of liability for child support.
16 In a different context Congress has already recognized the
value of genetic paternity testing. See
96 F.3d
1467, 1474-1475 (CADC 1996) (discussing Child Support
Enforcement Amendments of 1984).
439
petitioner's 21st birthday, and there is no indication in the
record that they had any contact whatsoever before she applied for
a United States passport. Given the size of the American military
establishment that has been stationed in various parts of the world
for the past half century, it is reasonable to assume that this
case is not unusual. In 1970, when petitioner was born, about
683,000 service personnel were stationed in the Far East, 24,000 of
whom were in the Philippines. U. S. Dept. of Commerce, Statistical
Abstract of the United States 381 (99th ed. 1978). Of all Americans
in the military at that time, only one percent were femaleP These
figures, coupled with the interval between conception and birth and
the fact that military personnel regularly return to the United
States when a tour of duty ends, suggest that Congress had
legitimate concerns about a class of children born abroad out of
wedlock to alien mothers and to American servicemen who would not
necessarily know about, or be known by, their children. It was
surely reasonable when the INA was enacted in 1952, and remains
equally reasonable today, for Congress to condition the award of
citizenship to such children on an act that demonstrates, at a
minimum, the possibility that those who become citizens will
develop ties with this country-a requirement that performs a
meaningful purpose for citizen fathers but normally would be
superfluous for citizen mothers.
It is of course possible that any child born in a foreign
country may ultimately fail to establish ties with its citizen
parent and with this country, even though the child's citizen
parent has engaged in the conduct that qualifies the child for
citizenship. A citizen mother may abandon her child before
170ffice of the Assistant Secretary of Defense, Background
Study, Use of Women in the Military 5 (2d ed. 1978). The proportion
of military personnel who were female in 1970 had dropped from a
high of 2.2 percent in
1945. Id., at 3. Since 1970, the
proportion has steadily increased to its present level of about 13
percent. See Dept. of Defense, Selected Manpower Statistics 23
(1996).
440
Opinion of STEVENS, J.
returning to the States, and a citizen father, even after
acknowledging paternity, may die or abscond before his child has an
opportunity to bond with him or visit this country. The fact that
the interest in fostering ties with this country may not be fully
achieved for either class of children does not qualify the
legitimacy or the importance of that interest. If, as Congress
reasonably may have assumed, the formal requirements in §
1409(a)(4) tend to make it just as likely that fathers will have
the opportunity to develop a meaningful relationship with their
children as does the fact that the mother knows of her baby's
existence and often has custody at birth, the statute's effect will
reduce, rather than aggravate, the disparity between the two
classes of children.
We are convinced not only that strong governmental interests
justify the additional requirement imposed on children of citizen
fathers, but also that the particular means used in § 1409(a)(4)
are well tailored to serve those interests. It is perfectly
appropriate to require some formal act, not just any evidence that
the father or his child know of the other's existence. Such a
formal act, whether legitimation, written acknowledgment by the
father, or a court adjudication, lessens the risk of fraudulent
claims made years after the relevant conduct was required. As for
the requirement that the formal act take place while the child is a
minor, Congress obviously has a powerful interest in fostering ties
with the child's citizen parent and the United States during his or
her formative years. If there is no reliable, contemporaneous proof
that the child and the citizen father had the opportunity to form
familial bonds before the child turned 18, Congress reasonably may
demand that the child show sufficient ties to this country on its
own rather than through its citizen parent in order to be a
citizen.18
18 The same policy presently applies to foreign-born persons not
eligible for citizenship at birth: A child may obtain special
immigration preference and the immediate issuance of a visa based
on a parent's citizenship or lawful residence, but only until age
21. 8 U. S. C. §§ 1101(b)(1), 1153(d).
441
Our conclusion that Congress may require an affirmative act by
unmarried fathers and their children, but not mothers and their
children, is directly supported by our decision in
Lehr v.
Robertson, 463
U. S. 248 (1983). That case involved a New York law that
automatically provided mothers of "illegitimate" children with
prior notice of an adoption proceeding and the right to veto an
adoption, but only extended those rights to unmarried fathers whose
claim of paternity was supported by some formal public act, such as
a court adjudication, the filing of a notice of intent to claim
paternity, or written acknowledgment by the mother.
Id., at
251-252, n. 5, 266. The petitioner in
Lehr, an unmarried
putative father, need only have mailed a postcard to the State's
"putative father registry" to enjoy the same rights as the child's
undisputed mother, id., at 264, yet he argued that this
gender-based requirement violated the Equal Protection Clause. We
rejected that argument, and we find the comparable claim in this
case, if anything, even less persuasive. Whereas the putative
father in
Lehr was deprived of certain rights because he
failed to take some affirmative step within about two years of the
child's birth (when the adoption proceeding took place), here the
unfavorable gender-based treatment was attributable to Mr. Miller's
failure to take appropriate action within 21 years of petitioner's
birth and petitioner's own failure to obtain a paternity
adjudication by a "competent court" before she turned 18.19
Even though the rule applicable to each class of children born
abroad is eminently reasonable and justified by important
Government policies, petitioner and her
amici argue that §
1409 is unconstitutional because it is a "gender-based
classification." We shall comment briefly on that argument.
19 JUSTICE BREYER questions the relevance of
Lehr because
it was decided before advances in genetic testing, see
post,
at 487; there was, however, no question about the paternity of the
father in that case. As in this case, the father there failed to
act promptly to establish a relationship with his child.
442
Opinion of STEVENS, J.
v
The words "stereotype," "stereotyping," and "stereotypical" are
used repeatedly in petitioner's and her
amici's briefs. They
note that we have condemned statutory classifications that rest on
the assumption that gender may serve as a proxy for relevant
qualifications to serve as the administrator of an estate,
Reed v.
Reed, 404 U. S. 71 (1971), to
engage in professional nursing,
Mississippi Univ. for Women
v.
Hogan, 458
U. S. 718 (1982), or to train for military service,
United
States v.
Virginia, 518 U. S. 515 (1996), to
name a few examples. Moreover, we have expressly repudiated cases
that rested on the assumption that only the members of one sex
could suitably practice law or tend bar. See
Hogan, 458 U.
S., at 725, n. 10 (commenting on
Bradwell v.
State,
16 Wall. 130 (1873), and
Goesaert v.
Cleary, 335 U. S. 464 (1948)).
Discrimination that "is merely the accidental byproduct of a
traditional way of thinking about females" is unacceptable.
Califano v.
Goldfarb, 430 U. S. 199,223 (1977)
(STEVENS, J., concurring in judgment).
The gender equality principle that was implicated in those cases
is only indirectly involved in this case for two reasons.20 First,
the conclusion that petitioner is not a citizen rests on several
coinciding factors, not just the gender of her citizen parent. On
the facts of this case, even if petitioner's mother had been a
citizen 21 and her father had been the alien, petitioner would not
qualify for citizenship because her mother has never been to the
United States. Alternatively, if her citizen parent had been a
female member of the Air Force and, like Mr. Miller, had returned
to the States at the end of her tour of duty, § 1409 quite probably
would have been irrelevant and petitioner would have become a
citizen at
20 Of course, the sex of the person claiming citizenship is
irrelevant; if she were a male, petitioner's case would be no
stronger.
21 Theoretically she might have been the child of an American
soldier stationed in the Philippines during World War II. See
Ablang v.
Reno, 52 F.3d
801, 802 (CA9 1995), cert. denied, 516 U. S. 1043 (1996).
443
birth by force of the Constitution itself.22 Second, it is not
merely the sex of the citizen parent that determines whether the
child is a citizen under the terms of the statute; rather, it is an
event creating a legal relationship between parent and child-the
birth itself for citizen mothers, but postbirth conduct for citizen
fathers and their offspring. Nevertheless, we may assume that if
the classification in § 1409 were merely the product of an outmoded
stereotype, it would be invalid.
The "gender stereotypes" on which § 1409 is supposedly premised
are (1) "that the American father is never anything more than the
proverbial breadwinner who remains aloof from day-to-day child
rearing duties," 23 and (2) "that a mother will be closer to her
child born out of wedlock than a father will be to his." 24 Even
disregarding the statute's separate, nonstereotypical purpose of
ensuring reliable proof of a blood relationship, neither of those
propositions fairly reflects the justifications for the
classification actually at issue.
Section 1409(a)(4) is not concerned with either the average
father or even the average father of a child born out of wedlock.
It is concerned with a father (a) whose child was born in a foreign
country, and (b) who is unwilling or unable to acknowledge his
paternity, and whose child is unable or unwilling to obtain a court
paternity adjudication. A congressional assumption that such a
father and his child are especially unlikely to develop a
relationship, and thus to foster the child's ties with this
country, has a solid basis even if we assume that all fathers who
have made some effort to become acquainted with their children are
as good, if not better, parents than members of the opposite
sex.
22 "All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside." U. S. Const., Arndt.
14, § 1.
23 Brief for American Civil Liberties Union et al. as
Amici
Curiae 8. 2496 F. 3d, at 1473 (Wald, J., concurring in
judgment).
444
Opinion of STEVENS, J.
Nor does the statute assume that all mothers of illegitimate
children will necessarily have a closer relationship with their
children than will fathers. It does assume that all of them will be
present at the event that transmits their citizenship to the child,
that hospital records and birth certificates will normally make a
further acknowledgment and formal proof of parentage unnecessary,
and that their initial custody will at least give them the
opportunity to develop a caring relationship with the child.
Section 1409(a)(4)-the only provision that we need consider-is
therefore supported by the undisputed assumption that fathers are
less likely than mothers to have the opportunity to develop
relationships, not simply, as JUSTICE BREYER contends, post, at
482483, that they are less likely to take advantage of that
opportunity when it exists.25 These assumptions are firmly grounded
and adequately explain why Congress found it unnecessary to impose
requirements on the mother that were entirely appropriate for the
father.
None of the premises on which the statutory classification is
grounded can be fairly characterized as an accidental byproduct of
a traditional way of thinking about the mem-
25 JUSTICE BREYER does not dispute the fact that the unmarried
father of a child born abroad is less likely than the unmarried
mother to have the opportunity to develop a relationship with the
child. He nevertheless would replace the gender-based distinction
with either a "knowledge of birth" requirement or a distinction
between "Caretaker and Noncaretaker Parents."
Post, at 487.
Neither substitute seems a likely candidate for serious
congressional consideration. The former in practice would be just
as gender based as the present requirement, for surely every mother
has knowledge of the birth when it occurs; nor would that option
eliminate the need for formal steps and time limits to ensure that
the parent truly had knowledge during the child's youth. The latter
would be confusing at best, for JUSTICE BREYER does not tell us how
he would decide whether a father like Mr. Miller would qualify as a
"caretaker" or a "noncaretaker"; and it would also be far less
protective of families than the present statute, for it would deny
citizenship to out-of-wedlock children who have relationships with
their citizen parents but are not in the primary care or custody of
those parents.
445
bers of either sex. The biological differences between single
men and single women provide a relevant basis for differing rules
governing their ability to confer citizenship on children born in
foreign lands. Indeed, it is the suggestion that simply because
Congress has authorized citizenship at birth for children born
abroad to unmarried mothers, it cannot impose any postbirth
conditions upon the granting of citizenship to the foreign-born
children of citizen fathers, that might be characterized as merely
a byproduct of the strong presumption that gender-based legal
distinctions are suspect. An impartial analysis of the relevant
differences between citizen mothers and citizen fathers plainly
rebuts that presumption.26
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE O'CONNOR, with whom JUSTICE KENNEDY joins, concurring in
the judgment.
This Court has long applied a presumption against thirdparty
standing as a prudential limitation on the exercise of federal
jurisdiction. Federal courts, we have held, "must hesitate before
resolving a controversy, even one within their constitutional power
to resolve, on the basis of the rights of third persons not parties
to the litigation."
Singleton v.
Wulff, 428 U. S. 106, 113
(1976); see also
Warth v.
Seldin, 422 U. S. 490, 499
(1975). Contrary to this prudential rule, the principal opinion
recognizes that petitioner has standing to raise an equal
protection challenge to 8 U. S. C. § 1409. The statute, however,
accords differential treatment to fathers and mothers, not to sons
and daughters. Thus,
26 See
Michael M. v.
Superior Court, Sonoma Cty.,
450 U. S. 464,
497498, n. 4 (1981) (STEVENS, J., dissenting). JUSTICE SCALIA
argues that petitioner's suit must be dismissed because the courts
have "no power to provide the relief requested."
Post, at
453. Because we conclude that there is no constitutional violation
to remedy, we express no opinion on this question.
446
O'CONNOR, J., concurring in judgment
although petitioner is clearly injured by the fact that she has
been denied citizenship, the
discriminatory impact of the
provision falls on petitioner's father, Charlie Miller, who is no
longer a party to this suit. Consequently, I do not believe that we
should consider petitioner's gender discrimination claim.
The principal opinion recognizes that petitioner's claim turns
on "the proposition that her citizen father should have the same
right to transmit citizenship as would a citizen mother" and
resolves to "evaluate the alleged discrimination against
[petitioner's father] as well as its impact on [petitioner]."
Ante, at 433. But even when "the very same allegedly illegal
act that affects the litigant also affects a third party," a
plaintiff "cannot rest his claim to relief on the legal rights and
interests of [the] third part[y]."
Department of Labor v.
Triplett, 494
U. S. 715, 720 (1990) (internal quotation marks omitted). A
party raising a constitutional challenge to a statute must
demonstrate not only "that the alleged unconstitutional feature [of
the statute] injures him" but also that "he is within the class of
persons with respect to whom the act is unconstitutional."
Heald v.
District of Columbia, 259 U. S. 114, 123
(1922). This requirement arises from the understanding that the
third-party rightholder may not, in fact, wish to assert the claim
in question, as well as from the belief that "third parties
themselves usually will be the best proponents of their rights."
Singleton, supra, at 113-114; see also
Holden v.
Hardy, 169 U.
S. 366, 397 (1898).
In support of the decision to consider Charlie Miller's claim,
both JUSTICE STEVENS, in the principal opinion, and JUSTICE BREYER,
in dissent, cite
Craig v.
Boren, 429 U. S. 190 (1976). In
that case, we allowed a vendor to challenge a state law that
permitted sales of 3.2% beer to females who had reached the age of
18 but prohibited such sales to males until they turned 21. Because
the law proscribed the sale rather than the consumption of beer,
the Court determined
447
that a vendor was the "least awkward challenger" to the
gender-based distinction.
Id., at 197. We reasoned that
prudential objectives would not be served by rejecting third-party
standing because "the lower court already ha[d] entertained the
relevant constitutional challenge."
Id., at 193. Here,
however, the court below expressly did
not take account of
Charlie Miller's equal protection rights, instead reviewing
petitioner's challenge as a first-party claim of gender
discrimination against the children of citizen fathers as opposed
to the children of citizen mothers. See
96 F.3d
1467, 1470 (CADC 1996).
More importantly, since this Court decided
Craig, we have
articulated the contours of the third-party standing inquiry in
greater detail. In
Powers v.
Ohio, 499 U. S. 400 (1991), we
stated that a litigant seeking to assert the rights of another
party must satisfy three interrelated criteria: "The litigant must
have suffered an injury in fact, thus giving him or her a
sufficiently concrete interest in the outcome of the issue in
dispute; the litigant must have a close relation to the third
party; and there must exist some hindrance to the third party's
ability to protect his or her own interests."
Id., at 411
(internal quotation marks and citations omitted); see also
Campbell v.
Louisiana, ante, at 397-398. While it
seems clear that petitioner has a significant stake in challenging
the statute and a close relationship with her father, she has not
demonstrated a substantial hindrance to her father's ability to
assert his own rights.
Powers and our earlier precedents
suggest that the absence of such an obstacle precludes thirdparty
standing. See 499 U. S., at 411 (explaining that "[all] three
important criteria [must be] satisfied," i.
e., that there
"must exist some hindrance to the third party's ability to protect
his or her own interests" before the presumption is rebutted); see
also
Singleton, supra, at 116 ("Even where the relationship
is close, the reasons for requiring persons to assert their own
rights will generally still apply").
448
O'CONNOR, J., concurring in judgment
Petitioner has not demonstrated that Charlie Miller confronted a
"genuine obstacle" to the assertion of his own rights that rises to
the level of a hindrance. 428 U. S., at 116; see also
Barrows v.
Jackson, 346 U. S. 249, 257 (1953)
(third-party standing accorded because it "would be difficult if
not impossible for the persons whose rights are asserted to present
their grievance before any court"). In fact, Charlie Miller
originally filed suit and asserted his own rights but then opted
not to pursue his claim throughout this litigation. It is true that
he was wrongly dismissed from the action by the Eastern District of
Texas, and that the Government made the misguided argument before
that court that "[t]he rights, if any, which have been injured are
those of Lorelyn Penero Miller, the true plaintiff in this action."
See Motion to Dismiss Plaintiff's First Amended Complaint or, in
the Alternative, to Transfer Venue 4. But because he failed to
appeal the erroneous dismissal of his claim, any hindrance to the
vindication of Charlie Miller's constitutional rights is ultimately
self imposed.
I am reluctant to accept that the Government's litigation
strategy, or an unfavorable ruling in the lower courts, could be a
sufficiently severe obstacle to the assertion of a litigant's own
rights to warrant an exception to our prudential standing
requirements. Those requirements were adopted to serve the
institutional interests of the federal courts, not the convenience
of the litigants. See
FW/PBS, Inc. v.
Dallas,
493 U. S. 215,
231 (1990);
Bender v.
Williamsport Area School Dist.,
475 U. S. 534,
541 (1986). JUSTICE BREYER asserts that appeals take time and
money, and that a change of venue left Charlie Miller uncertain
where to appeal. See
post, at 474. But the only obstacle was
the inconvenience caused by the normal course of litigation, which
often involves a transfer of venue. Charlie Miller never indicated
any intent to challenge his dismissal from the suit, and there is
no suggestion that he faced any unusual practical or legal barriers
to filing a notice of appeal. Instituting a suit is it-
449
self burdensome-arguably as burdensome as filing an appeal from
the denial of a claim-and to conclude that the course of events
that transpired in this case constituted a hindrance to Charlie
Miller's ability to assert his rights would be a step toward
eliminating the hindrance prong altogether.
Thus far, we have permitted third-party standing only where more
"daunting" barriers deterred the rightholder.
Powers, supra,
at 414. To take an extreme example, in
Hodel v.
Irving, 481 U.
S. 704 (1987), we concluded that plaintiffs had third-party
standing to assert the rights of their deceased parents.
Id., at 711-712. And in
Powers, we noted that
potential jurors are not parties to the proceeding, cannot easily
obtain declaratory or injunctive relief from a prosecutor's
exercise of peremptory challenges, would find it difficult to
demonstrate a likelihood that discrimination against them would
recur, and have economic disincentives to filing suit. 499 U. S.,
at 414-415. Privacy concerns may also provide a compelling
explanation for a third party's absence from the litigation. In
Carey v.
Population Services Int'l, 431 U. S. 678 (1977), we
determined that a vendor could challenge the law prohibiting the
distribution of contraceptives to minors because the desire to
avoid publicity would deter potential purchasers from defending
their own rights.
Id., at 684, n. 4; see also
Eisenstadt v.
Baird, 405 U. S. 438, 446
(1972). Likewise, in
NAACP v.
Alabama ex rel.
Patterson, 357 U.
S. 449 (1958), the Court held that an organization could raise
the privacy rights of its members because litigation initiated by
those members would disclose their identity and destroy the very
privacy they sought to protect.
Id., at 459. Where
insurmountable procedural obstacles preclude a rightholder's own
suit, the Court has also accorded thirdparty standing. In
Singleton, we concluded that physicians could assert the
rights of indigent women denied funding for abortion because
imminent mootness prevented the women from bringing their claims.
See 428 U. S., at 108. Simi-
450
O'CONNOR, J., concurring in judgment
larly,
Barrows involved the constitutional rights of the
prospective victims of a racially restrictive real estate covenant,
who were unidentified and thus not before the Court. See 346 U. S.,
at 254. And in
Craig, the case from which the Court garners
its sole support for according third-party standing here, the named
plaintiff turned 21 during the course of the litigation, which
mooted his challenge to the beer-sale restriction. See 429 U. S.,
at 192.
Where legitimate obstacles such as these exist, which lie beyond
the control of the rightholder, that party's absence from a suit
more likely stems from disability than from disinterest. A
hindrance signals that the rightholder did not simply decline to
bring the claim on his own behalf, but could not in fact do so. See
Singleton, supra, at 116 ("If there is some genuine obstacle
... the third party's absence from court loses its tendency to
suggest that his right is not truly at stake, or truly important to
him, and the party who is in court becomes by default the right's
best available proponent"). Furthermore, where a hindrance impedes
the assertion of a claim, the right likely will not be asserted-and
thus the relevant law will not be enforced-unless the Court
recognizes third-party standing. In
Barrows, for example,
the Court permitted third-party standing because "the reasons which
underlie [the] rule denying standing to raise another's rights"
were "outweighed by the need to protect the fundamental rights"
which would otherwise have been denied. 346 U. S., at 257.
Moreover, in contrast to this case, the white property owner
contesting the racially restrictive covenant in
Barrows was
its "only effective adversary" because she was "the one in whose
charge and keeping repose[d] the power to continue to use her
property to discriminate or to discontinue such use."
Id.,
at 259. Here, although we have an injured party before us, the
party actually discriminated against is both best suited to
challenging the statute and available to undertake that task. See
Gladstone, Realtors v.
Village of
451
Bellwood, 441 U. S. 91, 100 (1979)
(prudential barriers seek "to limit access to the federal courts to
those litigants best suited to assert a particular claim"). In
light of petitioner's uncertain constitutional status and the
potential problems with fashioning a remedy for her injury, see
post, at 452-458 (SCALIA, J., concurring in judgment),
allowing her to assert Charlie Miller's claim will likely dilute
rather than protect his constitutional rights.
Although petitioner cannot raise her father's rights, she may
raise her own. While it is unclear whether an alien may assert
constitutional objections when he or she is outside the territory
of the United States, see
Johnson v.
Eisentrager,
339 U. S. 763
(1950), and
United States v.
VerdugoUrquidez,
494 U. S. 259
(1990), I will assume that petitioner may challenge the
constitutionality of § 1409. Her challenge, however, triggers only
rational basis scrutiny. As pointed out above, see
supra, at
445, § 1409 does not draw a distinction based on the gender of the
child, so petitioner cannot claim that she has been injured by
gender discrimination. See
Allen v.
Wright, 468 U. S. 737, 755 (1984)
(an injury arising from discrimination "accords a basis for
standing only to those persons who are personally denied equal
treatment by the challenged discriminatory conduct") (internal
quotation marks omitted). Moreover, the grant of certiorari was
limited to the question whether § 1409 discriminates "between
'illegitimate' children of United States citizen mothers and
'illegitimate' children of United States citizen fathers," so any
claim of discrimination based on differential treatment of
illegitimate versus legitimate children is not presented. See 520
U. S. 1208 (1997).
Given that petitioner cannot raise a claim of discrimination
triggering heightened scrutiny, she can argue only that § 1409
irrationally discriminates between illegitimate children of citizen
fathers and citizen mothers. Although I do not share JUSTICE
STEVENS' assessment that the provision withstands heightened
scrutiny,
ante, at 433-444, I believe
452
SCALIA, J., concurring in judgment
it passes rational scrutiny for the reasons he gives for
sustaining it under the higher standard. It is unlikely, in my
opinion, that any gender classifications based on stereotypes can
survive heightened scrutiny, but under rational scrutiny, a statute
may be defended based on generalized classifications unsupported by
empirical evidence. See
Heller v.
Doe, 509 U. S. 312, 320 (1993)
("[A] classification must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification. A
State, moreover, has no obligation to produce evidence to sustain
the rationality of a statutory classification" (internal quotation
marks and citations omitted)). This is particularly true when the
classification is adopted with reference to immigration, an area
where Congress frequently must base its decisions on
generalizations about groups of people.
***
We adopted the presumption against third-party standing to
preserve the court's "properly limited" role,
Warth, 422 U.
S., at 498, and we have identified a particular set of
circumstances that will rebut that presumption. I believe that we
should treat those considerations, in particular the hindrance
prong, as meaningful criteria. Consequently, I would not accord
petitioner standing to raise her father's claim of gender
discrimination. Petitioner's own constitutional challenge triggers
only rational basis scrutiny, and § 1409 is sustainable under that
standard. Accordingly, I concur in the judgment affirming the Court
of Appeals' decision.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
I agree with the outcome in this case, but for a reason more
fundamental than the one relied upon by JUSTICE STEVENS. In my view
it makes no difference whether or not
453
§ 1409(a) passes "heightened scrutiny" or any other test Members
of the Court might choose to apply. The complaint must be dismissed
because the Court has no power to provide the relief requested:
conferral of citizenship on a basis other than that prescribed by
Congress.
The Constitution "contemplates two sources of citizenship, and
two only: birth and naturalization."
United States v.
Wong Kim Ark, 169 U. S. 649, 702
(1898). Under the Fourteenth Amendment, "[e]very person born in the
United States, and subject to the jurisdiction thereof, becomes at
once a citizen of the United States, and needs no naturalization."
Ibid. Petitioner, having been born outside the territory of
the United States, is an alien as far as the Constitution is
concerned, and "can only become a citizen by being naturalized,
either by treaty, as in the case of the annexation of foreign
territory; or by authority of Congress."
Id., at 702-703;
see also
Rogers v.
Bellei, 401 U. S. 815, 827
(1971). Here it is the "authority of Congress" that is appealed
toits power under Art. I, § 8, cl. 4, to "establish an uniform Rule
of Naturalization." If there is no congressional enactment granting
petitioner citizenship, she remains an alien.
The enactment on which petitioner relies is § 309 of the
Immigration and Nationality Act (INA), 66 Stat. 238, as amended, 8
U. S. C. § 1409, which establishes the requirements for the
acquisition of citizenship by a child born out of wedlock when the
child's father is a United States citizen. Section 1409(a)
provides, in relevant part, that § 1401(g), which confers
citizenship on foreign-born children when one parent is an alien
and the other a citizen of the United States, shall apply:
"(a) ... as of the date of birth to a person born out of wedlock
if-
"(1) a blood relationship between the person and the father is
established by clear and convincing evidence, "(2) the father had
the nationality of the United States at the time of the person's
birth,
454
SCALIA, J., concurring in judgment
"(3) the father (unless deceased) has agreed in writing to
provide financial support for the person until the person reaches
the age of 18 years, and
"(4) while the person is under the age of 18 years"(A) the
person is legitimated under the law of the person's residence or
domicile,
"(B) the father acknowledges paternity of the person in writing
under oath, or
"(C) the paternity of the person is established by adjudication
of a competent court."
By its plain language, § 1409(a) sets forth a precondition to
the acquisition of citizenship under § 1401(g) by the illegitimate
child of a citizen-father. Petitioner does not come into federal
court claiming that she met that precondition, and that the State
Department's conclusion to the contrary was factually in error.
Rather, she acknowledges that she did not meet the last two
requirements of that precondition, §§ 1409(a)(3) and (4). She
nonetheless asks for a "declaratory judgment that [she] is a
citizen of the United States" and an order to the Secretary of
State requiring the State Department to grant her application for
citizenship, App. 1112, because the requirements she did not meet
are not also imposed upon illegitimate children of citizen-mothers,
and therefore violate the Equal Protection Clause.1 Even if we
1 Petitioner makes the equal protection claim on behalf of her
father, not on her own behalf. JUSTICE BREYER finds that she has
third-party standing to make the claim because "[s]he has a 'close'
and relevant relationship" with her father, and "there was 'some
hindrance' to her father's asserting his own rights."
Post,
at 473 (quoting from
Powers v.
Ohio, 499 U. S. 400, 411
(1991)). As an original matter, I would agree with JUSTICE O'CONNOR
that this ground is inadequate, but I do not read our cases as
demanding so significant an impairment of the rightholder's ability
to sue as she does. For example, in
Craig v.
Boren,
429 U. S. 190,
197 (1976), although the rightholder who was one of the named
plaintiffs had indeed lost his ability to sue because he had turned
21, there was "no barrier whatever" to assertion of the
constitutional claim by other Oklahoma males between 18 and 20.
Id., at 216 (Burger, C. J., dissenting). Certainly here, as
in
455
were to agree that the difference in treatment between
illegitimate children of citizen-fathers and citizen-mothers is
unconstitutional, we could not, consistent with the limited
judicial power in this area, remedy that constitutional infirmity
by declaring petitioner to be a citizen or ordering the State
Department to approve her application for citizenship. "Once it has
been determined that a person does not qualify for citizenship, ...
the district court has no discretion to ignore the defect and grant
citizenship."
INS v.
Pangilinan, 486 U. S. 875, 884 (1988)
(internal quotation marks and citation omitted).
Judicial power over immigration and naturalization is extremely
limited. "Our cases 'have long recognized the power to expel or
exclude aliens as a fundamental sovereign attribute exercised by
the Government's political departments largely immune from judicial
control.'"
Fiallo v.
Bell, 430 U. S. 787, 792 (1977)
(quoting
Shaughnessy v.
United States ex rel. Mezei,
345 U. S. 206,
210 (1953)). See also
Landon v.
Plasencia, 459 U. S. 21, 32 (1982)
("[T]he power to admit or exclude aliens is a sovereign
prerogative");
Mathews v.
Diaz, 426 U. S. 67, 79-80 (1976)
("In the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens");
Kleindienst v.
Mandel, 408 U. S. 753, 769-770 (1972) ("[P]lenary
congressional power to make policies and rules for exclusion of
aliens has long been firmly established");
Galvan v.
Press, 347 U.
S. 522, 531 (1954) ("That the formulation of [policies
pertaining to the
Craig, petitioner is the "least awkward challenger,"
id., at 197, since it is her right to citizenship that is at
stake. Our law on this subject is in need of what may charitably be
called clarification, but I would leave it for another day. Since I
accept petitioner's third-party standing, there is no need for me
to reach the Government's claim (which it asserts for the first
time in its brief on the merits in this Court) that petitioner
cannot invoke the Equal Protection Clause on her own behalf because
she is not within the jurisdiction of the United States. Brief for
Respondent 11-12.
456
SCALIA, J., concurring in judgment
entry of aliens and their right to remain here] is entrusted
exclusively to Congress has become about as firmly imbedded in the
legislative and judicial tissues of our body politic as any aspect
of our government"). Because only Congress has the power to set the
requirements for acquisition of citizenship by persons not born
within the territory of the United States, federal courts cannot
exercise that power under the guise of their remedial authority.
"Neither by application of the doctrine of estoppel, nor by
invocation of equitable powers, nor by any other means does a court
have the power to confer citizenship in violation of [statutory]
limitations."
Pangilinan, supra, at 885. "An alien who seeks
political rights as a member of this Nation can rightfully obtain
them
only upon terms and conditions specified by Congress.
Courts are without authority to sanction changes or modifications."
United States v.
Ginsberg, 243 U. S. 472, 474 (1917)
(emphasis added).
Petitioner argues, and JUSTICE BREYER'S dissent seems to agree,
see
post, at 488-489, that because she meets the
requirements of § 1401(g), the Court may declare her a citizen "at
birth" under that provision and ignore § 1409(a) entirely, which
allegedly unconstitutionally takes away that citizenship. Brief for
Petitioner 14-15. This argument adopts a fanciful view of the
statute, whereby § 1409(a) takes away what § 1401(g) has
unconditionally conferred-as though § 1409(a) were some sort of a
condition subsequent to the conveyance of real estate in a will. If
anything, of course, it would be a condition
precedent,
since it says that § 1401(g) "shall apply as of the date of birth
to a person born out of wedlock
if" the person meets the
requirements there set forth. 8 U. S. C. § 1409(a) (emphasis
added). But a unitary statute is not to be picked apart in this
fashion. To be sure, § 1401(g), read in isolation, might refer to
both married and unmarried parents. We do not, however, read
statutory provisions in isolation, as if other provisions in the
same Act do not exist, see
King v.
St. Vincent's
Hospital, 502 U.
S. 215,
457
221 (1991). Section 1401(g) does
not confer citizenship
upon children born out of wedlock unless the requirements in § 1409
are satisfied.
It can be argued that in exempting an applicant from an
unconstitutional requirement (either part or all of § 1409(a)) a
court is not rewriting the law, but simply ignoring that portion of
the law which is a nullity. See
post, at 488-489 (BREYER,
J., dissenting). That assumes, however, a judicial power to sever
the unconstitutional portion from the remainder, and to apply the
remainder unencumbered. Such a power exists in other cases-and is
exercised on the basis of the Court's assessment as to whether
Congress would have enacted the remainder of the law without the
invalidated provision. See
New York v.
United States,
505 U. S. 144,
186 (1992). I know of no instance, however, in which this Court has
severed an unconstitutional restriction upon the grant of
immigration or citizenship. It is in my view incompatible with the
plenary power of Congress over those fields for judges to speculate
as to what Congress would have enacted if it had not enacted what
it did-whether it would, for example, have preferred to extend the
requirements of §§ 1409(a)(3) and (4) to mothers instead of
eliminating them for fathers, or even to deny citizenship to
illegitimate children entirely. ("[T]he Court has specifically
recognized the power of Congress not to grant a United States
citizen the right to transmit citizenship by descent."
Rogers, 401 U. S., at 830.) Moreover, if the mere character
of the naturalization power were not enough to render the severing
of a limitation upon citizenship improper, the INA itself contains
a clear statement of congressional intent: "A person may only be
naturalized as a citizen of the United States in the manner and
under the conditions prescribed in this subchapter
and not
otherwise." 8 U. S. C. § 1421(d) (emphasis added). JusTICE
BREYER'S reliance upon the INA's general severability clause, 66
Stat. 281, § 406, is misplaced because the specific governs the
general, see
Morales v.
Trans World Airlines,
458
SCALIA, J., concurring in judgment
Inc., 504
U. S. 374, 384-385 (1992). The question of severance ultimately
turns on "whether the provisions are inseparable by virtue of
inherent character,"
Carter v.
Carter Coal Co.,
298 U. S. 238,
322 (1936), which must be gleaned from the structure and nature of
the Act.
Another obstacle to judicial deletion of the challenged
requirements is the fact that when a statutory violation of equal
protection has occurred, it is not foreordained which particular
statutory provision is invalid. The constitutional vice consists of
unequal treatment, which may as logically be attributed to the
disparately generous provision (here, supposedly, the provision
governing citizenship of illegitimate children of citizen-mothers)
as to the disparately parsimonious one (the provision governing
citizenship of illegitimate children of citizen-fathers). "[WJe
have noted that a court sustaining [an equal protection] claim
faces 'two remedial alternatives: [It] may either declare [the
statute] a nullity and order that its benefits not extend to the
class that the legislature intended to benefit, or it may extend
the coverage of the statute to include those who are aggrieved by
the exclusion.'''
Heckler v.
Mathews, 465 U. S. 728, 738
(1984), quoting
Welsh v.
United States, 398 U. S. 333, 361 (1970)
(Harlan, J., concurring in result). Given the nature of the law at
issue here, and given the clear command of 8 U. S. C. § 1421(d)
("under the conditions prescribed in this subchapter and not
otherwise"), there is no doubt which of those alternatives the
Court must employ. It cannot confer citizenship where Congress has
not done so.
In any event, this is not like the ordinary equal protection
case, in which one class is subjected to a restriction from which
the other class is exempt. See,
e. g., Craig v.
Boren, 429 U.
S. 190, 191-192 (1976) (men can be served alcoholic beverages
only if over 21 years of age, whereas women need be only 18). Here
each class is subjected to restrictions from which the other
is exempt. While illegitimate children of citizen-fathers must meet
the requirements of § 1409(a)
459
from which illegitimate children of citizen-mothers are exempt,
illegitimate children of citizen-mothers must meet the quite
different requirements of § 1409(c), from which illegitimate
children of citizen-fathers are exempt.2 In this situation,
eliminating the restrictions on fathers does not produce a law that
complies with the Equal Protection Clause (assuming it is initially
in violation), but rather produces a law that treats fathers
more favorably than mothers. There is no way a court can
"fix" the law by merely disregarding one provision or the other as
unconstitutional. It would have to disregard them
both,
either leaving no restrictions whatever upon citizenship of
illegitimate children or (what I think the more proper course)
denying naturalization of illegitimate children entirely (since §
1401(g) was not meant to apply by its unqualified terms to
illegitimate children). Even outside the particularly sensitive
area of immigration and naturalization, I am aware of no case that
has engaged in such radical statutory surgery, and it certainly
cannot be engaged in here.
In sum, this is not a case in which we have the power to remedy
the alleged equal protection violation by either expanding or
limiting the benefits conferred so as to deny or grant them equally
to all. "We are dealing here with an exercise of the Nation's
sovereign power to admit or exclude foreigners in accordance with
perceived national interests."
Fiallo, 430 U. S., at 795, n.
6. Federal judges may not decide what those national interests are,
and what requirements for citizenship best serve them.
Because petitioner is not a citizen under any Act of Congress,
we cannot give her the declaratory judgment or affirmative relief
she requests. I therefore concur in the judgment.
2 Title 8 U. S. C. § 1409(c) provides that an illegitimate child
born to a citizen-mother shall be a citizen "if the mother had
previously been physically present in the United States or one of
its outlying possessions for a continuous period of one year."
460
JUSTICE GINSBURG, with whom JUSTICE SOUTER and JUSTICE BREYER
join, dissenting.
As JUSTICE BREYER convincingly demonstrates, 8 U. S. C. § 1409
classifies unconstitutionally on the basis of gender in determining
the capacity of a parent to qualify a child for citizenship. The
section rests on familiar generalizations: mothers, as a rule, are
responsible for a child born out of wedlock; fathers unmarried to
the child's mother, ordinarily, are not. The law at issue might
have made custody or support the relevant criterion. Instead, it
treats mothers one way, fathers another, shaping Government policy
to fit and reinforce the stereotype or historic pattern.
Characteristic of sex-based classifications, the stereotypes
underlying this legislation may hold true for many, even most,
individuals. But in prior decisions the Court has rejected official
actions that classify unnecessarily and overbroadly by gender when
more accurate and impartial functional lines can be drawn. While
the Court is divided on Lorelyn Miller's standing to sue, a solid
majority adheres to that vital understanding. As JUSTICE O'CONNOR'S
opinion makes plain, distinctions based on gender trigger
heightened scrutiny and "[i]t is unlikely ... that any gender
classifications based on stereotypes can survive heightened
scrutiny."
Ante, at 452 (opinion concurring in judgment);
post, at 482488 (BREYER, J., dissenting).
On the surface, § 1409 treats females favorably. Indeed, it
might be seen as a benign preference, an affirmative action of
sorts. Compare
Mississippi Univ. for Women v.
Hogan,
458 U. S. 718,
731, and n. 17 (1982), with id., at 740-744 (Powell, J.,
dissenting). Two Justices today apparently take this view. JUSTICE
STEVENS' opinion, in which THE CHIEF JusTICE joins, portrays § 1409
as helpfully recognizing the different situations of unmarried
mothers and fathers during the prenatal period and at birth, and
fairly equalizing the "burdens" that each parent bears. See
ante, at 433-434, 438. But pages of history place the
provision in real-world
461
perspective. Section 1409 is one of the few provisions remaining
in the United States Code that uses sex as a criterion in
delineating citizens' rights. It is an innovation in this respect:
During most of our Nation's past, laws on the transmission of
citizenship from parent to child discriminated adversely against
citizen mothers, not against citizen fathers.
I
The first statute on the citizenship of children born abroad,
enacted in 1790, stated: "[T]he children of citizens of the United
States, that may be born beyond sea, or out of the limits of the
United States, shall be considered as natural born citizens:
Provided, That the right of citizenship shall not descend to
persons whose fathers have never been resident in the United
States." Act of Mar. 26, 1790, ch. 3, 1 Stat. 104. Statutes passed
in 1795 and 1802 similarly conditioned the citizenship of the child
born abroad on the father's at least one-time residence in the
United States. Act of Jan. 29, 1795, § 3, 1 Stat. 415; Act of Apr.
14, 1802, § 4, 2 Stat. 155. This father's residence requirement
suggests that Congress intended a child born abroad to gain
citizenship only when the father was a citizen. That, indeed, was
the law of England at the time. See 2 J. Kent, Commentaries on
American Law *50-*51 (hereinafter Kent's Commentaries); 4 Geo. 2,
ch. 21 (1731). The statutory language Congress adopted, however,
was ambiguous. One could read the words "children of citizens" to
mean that the child of a United States citizen mother and a foreign
father would qualify for citizenship if the father had at some
point resided in the country. See Binney, The Alienigenae of the
United States, 2 Am. L. Reg. 193, 203-205 (1854). Or, as Chancellor
Kent observed, the words might mean that both parents had to be
United States citizens for citizenship to pass. 2 Kent's
Commentaries *53.
Under the 1802 legislation, children born abroad could not
become citizens unless their parents were citizens in 1802,
462
which meant that as the years passed few foreign-born persons
could qualify. Daniel Webster, among others, proposed remedial
legislation. His bill would have granted citizenship to children
born abroad to United States-born citizen mothers as well as
fathers. His effort was unsuccessful. See Congo Globe, 30th Cong.,
1st Sess., 827 (1848); F. Franklin, The Legislative History of
Naturalization in the United States 271-276 (reprint ed. 1971).
Instead, in 1855, Congress clarified that citizenship would pass to
children born abroad only when the father was a United States
citizen. Act of Feb. 10, 1855, § 2, 10 Stat. 604. Codified as §
1993 of the Revised Statutes, the provision originating in 1855
read: "All children heretofore born or hereafter born out of the
limits and jurisdiction of the United States, whose fathers were or
may be at the time of their birth citizens thereof, are declared to
be citizens of the United States; but the rights of citizenship
shall not descend to children whose fathers never resided in the
United States." Rev. Stat. § 1993.
In these early statutes, Congress did not differentiate between
children born abroad to married parents and those born out of
wedlock. Section 1993, as applied, allowed transmission of
citizenship to children born out of wedlock if the father
legitimated the child. See,
e. g., 32 Op. Atty. Gen. 162,
164-165 (1920); see also
Guyer v.
Smith, 22 Md. 239
(1864) (foreign-born children who remain illegitimate do not
qualify for citizenship). In several reported instances, children
legitimated by their fathers gained citizenship even though the
legitimation occurred, as it did in Lorelyn Miller's case, after
the child reached majority. See
In re p, 4 1. & N. Dec.
354 (C. O. 1951); 7 C. Gordon, S. Mailman, & S. Yale-Loehr,
Immigration Law and Procedure § 93.04[2][d], pp. 93-43 to 93-44
(1992) (hereinafter Gordon). But see 3 G. Hackworth, Digest of
International Law 29 (1942) (noting a case in which legitimation
postmajority was deemed sufficient, but maintaining that
"[n]ormally the legitimation must take place during the minority of
the child").
463
In the early part of this century, the State Department
permitted the transmission of citizenship from unwed mother to
child reasoning that, for the child born out of wedlock, the mother
"stands in the place of the father." House Committee on Immigration
and Naturalization, A Report Proposing A Revision and Codification
of the Nationality Laws of the United States, Part One: Proposed
Code with Explanatory Comments, 76th Cong., 1st Sess., 18 (Comm.
Print 1939) (hereinafter Proposed Code). Ultimately, however, the
Attorney General rejected the Department's reasoning, finding it
incompatible with § 1993's exclusive reference to fathers. See 39
Op. Atty. Gen. 397, 398 (1939).
Women's inability to transmit their United States citizenship to
children born abroad was one among many genderbased distinctions
drawn in our immigration and nationality laws. The woman who
married a foreign citizen risked losing her United States
nationality. In early days, "marriage with an alien, whether a
friend or an enemy, produce[d] no dissolution of the native
allegiance of the wife."
Shanks v.
Dupont, 3 Pet.
242, 246 (1830) (Story, J.). By the end of the 19th century,
however, a few courts adopted the view that a woman's nationality
followed her husband's, see,
e. g.,
Pequignot v.
Detroit, 16 F.2d 1, 216 (CC ED Mich. 1883), particularly
when the woman resided abroad in her husband's country, see,
e.
g., Ruckgaber v.
Moore, 104 F.9d
7, 948-949 (CC ED NY 1900). See generally C. Bredbenner, A
Nationality of Her Own: Women, Marriage, and the Law of Citizenship
58-59 (1998) (hereinafter Bredbenner); Sapiro, Women, Citizenship,
and Nationality: Immigration and Naturalization Policies in the
United States, 13 Politics & Soc. 1, 4-10 (1984). State
Department officials inclined towards this view as well. See L.
Gettys, The Law of Citizenship in the United States 118 (1934). In
1907, Congress settled the matter: It provided by statute that a
female United States citizen automatically lost her citizenship
upon marriage to an alien. Act of Mar. 2, 1907, § 3, 34 Stat. 1228.
This Court upheld the statute, noting that "[t]he identity of
husband and
464
wife is an ancient principle of our jurisprudence."
Mackenzie v.
Hare, 239 U. S. 299, 311
(1915).
The statutory rule that women relinquished their United States
citizenship upon marriage to an alien encountered increasing
opposition, fueled in large part by the women's suffrage movement
and the enhanced importance of citizenship to women as they
obtained the right to vote. See Bredbenner 64, 68-81; Sapiro,
supra, at 12-13. In response, Congress provided a measure of
relief. Under the 1922 Cable Act, marriage to an alien no longer
stripped a woman of her citizenship automatically. Act of Sept. 22,
1922 (Cable Act), ch. 411, § 3, 42 Stat. 1022. But equal respect
for a woman's nationality remained only partially realized. A woman
still lost her United States citizenship if she married an alien
ineligible for citizenship; she could not become a citizen by
naturalization if her husband did not qualify for citizenship; she
was presumed to have renounced her citizenship if she lived abroad
in her husband's country for two years, or if she lived abroad
elsewhere for five years.
Id., §§ 3,5; see also Sapiro,
supra, at 11-12. A woman who became a naturalized citizen
was unable to transmit her citizenship to her children if her
noncitizen husband remained alive and they were not separated. See
In re Citizenship Status of Minor Children, 25 F.2d 210 (NJ
1928) ("the status of the wife was dependent upon that of her
husband, and therefore the children acquired their citizenship from
the same source as had been theretofore existent under the common
law"); see also Gettys,
supra, at 56-57. No restrictions of
like kind applied to male United States citizens.
Instead, Congress treated wives and children of male United
States citizens or immigrants benevolently. The 1855 legislation
automatically granted citizenship to women who married United
States citizens. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604;
see also
Kelly v.
Owen, 7 Wall. 496, 498 (1869) (the
1855 Act "confers the privileges of citizenship upon women married
to citizens of the United States" with-
465
out further action); Bredbenner 15. Under an 1804 statute, if a
male alien died after completing the United States residence
requirement but before actual naturalization, his widow and
children would be "considered as citizens." Act of Mar. 26, 1804, §
2, 2 Stat. 292, 293. That 1804 measure granted no corresponding
dispensation to the husband and children of an alien woman. In
addition, Congress provided statutory exemptions to entry
requirements for the wives and children of men but not for the
husbands and children of women. See,
e. g., Act of Mar. 3,
1903, § 37, 32 Stat. 1213, 1221 (wives and children entering the
country to join permanent resident aliens and found to have
contracted contagious diseases during transit shall not be deported
if the diseases were easily curable or did not present a danger to
others); S. Rep. No. 1515, 81st Cong., 2d Sess., 415-417 (1950)
(wives exempt from literacy and quota requirements).
In 1934, Congress moved in a new direction. It terminated the
discrimination against United States citizen mothers in regard to
children born abroad. Specifically, Congress amended § 1993 to
read:
"Any child hereafter born out of the limits and jurisdiction of
the United States, whose father or mother or both at the time of
the birth of such child is a citizen of the United States, is
declared to be a citizen of the United States; but the rights of
citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the
United States previous to the birth of such child." Act of May 24,
1934, § 1,48 Stat. 797.1
1 A 1921 bill contained a similar provision allowing United
States citizen women to transmit citizenship to their children born
abroad. The bill provided: "A child born at any time without the
United States, either parent being at the time of such birth a
citizen of the United States, may, if not a citizen under section
1993 of the Revised Statutes, derive United States citizenship
under this section." H. R. Rep. No. 15603, 66th Cong., 3d Sess., §
33(2), p. 26 (1921). This 1921 bill, a precursor to the Cable
466
Senate and House Reports on the Act stated that the change was
made "to establish complete equality between American men and women
in the matter of citizenship for themselves and for their
children." S. Rep. No. 865, 73d Cong., 2d Sess., 1 (1934); accord,
H. R. Rep. No. 131, 73d Cong., 1st Sess., 2 (1933); see generally
Orfield, The Citizenship Act of 1934, 2 U. Chi. L. Rev. 99, 100-106
(1935). Congress again did not speak of children born out of
wedlock, but the 1934 Act "was construed as authorizing
transmission of American citizenship by descent by an American
citizen mother to a child born abroad ... out of wedlock under the
same conditions as a child born in wedlock." 7 Gordon §
93.04[2][b], at 93-42; see also id., § 93.04[2][d][iii], at
93-46.
The 1934 Act's equal respect for the citizenship stature of
mothers and fathers of children born abroad did not remain
unmodified. Six years later, Congress passed the N ationality Act
of 1940, which replaced the Revised Statutes' single provision on
citizenship of children born abroad with an array of provisions
that turned on whether the child was born in an outlying possession
of the United States, whether one or both of the child's parents
were United States citizens, and whether the child was born in or
out of wedlock. The 1940 Act preserved Congress' earlier
recognition of parental equality in regard to children born in
wedlock, but established a different regime for children born out
of wedlock, one that disadvantaged United States citizen fathers
and their children.
Under the 1940 Act, if the mother of the child born abroad out
of wedlock held United States citizenship and previously had
resided in the country or in a United States possession, the child
gained the mother's nationality from birth, provided the child's
paternity was not established by legitima-
Act, passed the House Committee on Immigration and
Naturalization but proceeded no further. See H. R. Rep. No. 1185,
66th Cong., 3d Sess., 1 (1921).
467
tion or a court order.2 But if the father and not the mother
held United States citizenship, then the child would qualify for
United States citizenship only upon legitimation or adjudication of
paternity during the child's minority. Furthermore, the child
generally had to live in the United States for five years before
the age of 21. The same residency requirement applied to children
born abroad to married couples with only one United States citizen
parent, whether that parent was the mother or the father.
Nationality Act of 1940, §§ 201, 205, 54 Stat. 1138-1140.3
Subsequent legislation retained the gender lines drawn in the
1940 Act. The Immigration and Nationality Act of 1952 made only one
significant change regarding the citizenship of children born
abroad out of wedlock. It removed the provision that a mother could
pass on her nationality to her child only if the paternity of the
child had not been established.4
2 Nationality and citizenship are not entirely synonymous; one
can be a national of the United States and yet not a citizen. 8 U.
S. C. § 1l01(a)(22). The distinction has little practical impact
today, however, for the only remaining noncitizen nationals are
residents of American Samoa and Swains Island. See T. Aleinikoff,
D. Martin, & H. Motomura, Immigration: Process and Policy
974-975, n. 2 (3d ed. 1995). The provision that a child born abroad
out of wedlock to a United States citizen mother gains her
nationality has been interpreted to mean that the child gains her
citizenship as well; thus if the mother is not just a United States
national but also a United States citizen, the child is a United
States citizen. See 7 Gordon § 93.04[2][b], at 93-42; id., §
93.04[2][d] [viii], at 93-49.
3 The provision granting citizenship to children born abroad out
of wedlock applied retroactively; the provision granting
citizenship to children born in wedlock did not. The 1934 Act, too,
was nonretroactive. The net result was that a child born abroad out
of wedlock to a United States citizen mother in 1933 or earlier had
United States citizenship after the 1940 Act, but a child born in
wedlock did not until 1994 when Congress enacted legislation making
the 1934 Act retroactive. Pub. L. 103-416, Tit. I, § 101(a)(2), 108
Stat. 4306, codified at 8 U. S. C. § 1401(h).
4 The 1952 Act also provided that periods of service in the
Armed Forces abroad could count toward satisfying the parental
residency requirement in regard to a child born after January 13,
1941. Immigration and N ation-
468
Immigration and Nationality Act, § 309, 66 Stat. 238-239. In
1986, however, Congress added further gender-based differentials.
The Legislature that year permitted substitution of a written
acknowledgment under oath or adjudication of paternity prior to age
18 in place of formal legitimation. To that extent, Congress eased
access to citizenship by a child born abroad out of wedlock to a
United States citizen father. At the same time, however, Congress
imposed on such a child two further requirements: production of
clear and convincing evidence of paternity, also a written
statement from the father promising support until the child turned
18. The requirements for a child of a United States citizen mother
remained the same; such a child obtained the mother's nationality
if the mother had resided in the United States or its territorial
possessions for at least a year before the child's birth. Act of
Nov. 14, 1986, § 13, 100 Stat. 3657, codified as amended at 8 U. S.
C. § 1409. No substantive change has been made since 1986 in the
law governing citizenship of children born abroad out of
wedlock.
II
The history of the treatment of children born abroad to United
States citizen parents counsels skeptical examination of the
Government's prime explanation for the gender line drawn by §
1409-the close connection of mother to child, in contrast to the
distant or fleeting father-child link. Or, as JUSTICE STEVENS puts
it, a mother's presence at birth, identification on the birth
certificate, and likely "initial custody" of the child give her an
"opportunity to develop a caring relationship with the child,"
ante, at 444, which Congress legitimately could assume a
father lacks. For most of our Nation's past, Congress demonstrated
no high regard or respect for the mother-child affiliation. It
bears emphasis, too, that in 1934, when Congress allowed United
States citi-
ality Act of 1952, §§ 301(a)(7), 309(b), 66 Stat. 236, 238,
codified as amended at 8 U. S. C. §§ 1401(g), 1409(b).
469
zen mothers to transmit their citizenship to their foreignborn
children, Congress simultaneously and for the first time required
that such children (unless both parents were citizens) fulfill a
residence requirement: "[T]he right of citizenship shall not
descend unless the child comes to the United States and resides
therein for at least five years continuously immediately previous
to his eighteenth birthday." Act of May 24, 1934, § 1, 48 Stat.
797. Commentary underscores what the text conveys. Congress largely
relied on a residence requirement, not the sex of the child's
citizen parent, to assure an abiding affiliation with the United
States. See Proposed Code 10-11, 14.
Even if one accepts at face value the Government's current
rationale, it is surely based on generalizations (stereotypes)
about the way women (or men) are. These generalizations pervade the
opinion of JUSTICE STEVENS, which constantly relates and relies on
what "typically," or "normally," or "probably" happens "often."
E. g., ante, at 436, 437, 442.
We have repeatedly cautioned, however, that when the Government
controls "gates to opportunity," it "may not exclude qualified
individuals based on 'fixed notions concerning the roles and
abilities of males and females.'"
United States v.
Virginia, 518
U. S. 515, 541 (1996) (quoting
Mississippi Univ. for
Women v.
Hogan, 458 U. S., at 725); see also
Orr
v.
Orr, 440 U.
S. 268, 283 (1979) ("Where, as here, the State's ... purposes
are as well served by a gender-neutral classification as one that
gender classifies and therefore carries with it the baggage of
sexual stereotypes, the State cannot be permitted to classify on
the basis of sex."). Only an "'exceedingly persuasive
justification,'"
Kirchberg v.
Feenstra, 450 U. S. 455, 461 (1981)
(quoting
Personnel Administrator of Mass. v.
Feeney,
442 U. S. 256,
273 (1979)), one that does "not rely on overbroad generalizations
about the different talents, capacities, or preferences of males
and females,"
United States v.
Virginia, 518 U. S.,
at 533, will support dif-
470
ferential treatment of men and women. See J.
E. B. v.
Alabama ex rel. T. B.,
511 U. S. 127, 152 (1994)
(KENNEDY, J., concurring in judgment) (noting that prevailing case
law "reveal[s] a strong presumption that gender classifications are
invalid").
One can demur to the Government's observation that more United
States citizen mothers of children born abroad out of wedlock
actually raise their children than do United States citizen fathers
of such children. As JUSTICE BREYER has elucidated, this
observation does not justify distinctions between male and female
United States citizens who take responsibility, or avoid
responsibility, for raising their children. Nor does it justify
reliance on gender distinctions when the alleged purpose-assuring
close ties to the United Statescan be achieved without reference to
gender. As Judge Wald commented in discussing an analogous claim
when this case was before the Court of Appeals,
"Congress is free to promote close family ties by ensuring that
citizenship is conferred only on children who have at least minimal
contact with citizen parents during their early and formative years
.... But this putative interest provides absolutely no basis for
requiring fathers, and only fathers, to formally declare parentage
and agree to provide financial support before a child reaches age
18." Miller v. Christopher, 96
F.3d 1467, 1476 (CADC 1996) (opinion concurring in
judgment).
***
In 1934, it was no doubt true that many female United States
citizens who gave birth abroad had married foreigners and moved to
their husbands' country, and that the children of such marriages
were brought up as natives of a foreign land. And if a female
United States citizen were married to a United States citizen, her
children born abroad could obtain United States citizenship through
their father. Thus, the historic restriction of citizenship to
children born abroad
471
of United States citizen fathers may not have affected many
women. But, in the words of one woman who testified in favor of the
1934 Act (and later became the first woman to sit as a federal
district court judge), "[w]hether there are a lot of people who
suffer or whether there are a few who suffer, it seems to us that
the principle of equal application of the law to men and women
ought to receive recognition." Hearings on H. R. 3673 and H. R. 77
before the House Committee on Immigration and Naturalization, 73d
Cong., 1st Sess., 36 (1933) (testimony of Burnita Shelton
Matthews). Congress recognized this equality principle in 1934, and
is positioned to restore that impartiality before the century is
out.
JUSTICE BREYER, with whom JUSTICE SOUTER and JusTICE GINSBURG
join, dissenting.
Since the founding of our Nation, American statutory law,
reflecting a long-established legal tradition, has provided for the
transmission of American citizenship from parent to child-even when
the child is born abroad. Today's case focuses upon statutes that
make those children, when born out of wedlock, "citizens of the
United States at birth." 8 U. S. C. §§ 1401 and 1409. The statutes,
as applied where only one parent is American, require the American
parentwhether father or mother-to prove the child is his or hers
and to meet a residency requirement. The statutes go on to require
(1) that the American parent promise to provide financial support
for the child until the child is 18, and (2) that the American
parent (or a court) legitimate or formally acknowledge the child
before the child turns
18-if and only if the American parent is
the father, but not if the parent is the mother.
What sense does it make to apply these latter two conditions
only to fathers and not to mothers in today's worldwhere paternity
can readily be proved and where women and men both are likely to
earn a living in the workplace? As
472
JUSTICE O'CONNOR has observed, and as a majority of the Court
agrees, "[i]t is unlikely ... that any gender classifications based
on stereotypes can survive heightened scrutiny."
Ante, at
452. These two gender-based distinctions lack the " 'exceedingly
persuasive'" support that the Constitution requires.
United
States v.
Virginia, 518 U. S. 515, 530
(1996). Consequently, the statute that imposes them violates the
Fifth Amendment's "equal protection" guarantee. See
Bolling
v.
Sharpe, 347
U. S. 497, 500 (1954).
I
The family whose rights are at issue here consists of Charlie
Miller, an American citizen, Luz Pefiero, a citizen of the
Philippines, and their daughter, Lorelyn. Lorelyn was born out of
wedlock in 1970 in the Philippines. The relevant citizenship
statutes state that a child born out of wedlock shall be a
"citize[n] of the United States at birth," § 1401, if the child is
born to a father who "had the nationality of the United States at
the time of the person's birth," if the "blood relationship between
the person and the father is established by clear and convincing
evidence," if the father had been physically present in the United
States for five years, and:
"(3) the father (unless deceased) has agreed in writing to
provide financial support for the person until the person reaches
the age of 18 years, and
"(4) while the person is under the age of 18 years"(A) the
person is legitimated under the law of the person's residence or
domicile,
"(B) the father acknowledges paternity of the person in writing
under oath, or
"(C) the paternity of the person is established by adjudication
of a competent court." 8 U. S. C. §§ 1409(a) and 1401(g).
Charlie Miller did not meet the requirements set forth in
subsections (3) and (4) above on time. And the question be-
473
fore us is whether the Constitution forbids the application of
those requirements for the reason that the statute imposed them
only where the child's American parent is the child's father, not
the mother. In my view the Constitution does forbid their
application.
II
I agree with JUSTICE STEVENS' resolution of the Government's
three threshold claims. First, the Government takes issue with
Lorelyn's argument that provisions (3) and (4) unconstitutionally
infringe the rights of her father, Charlie, an American citizen.
Brief for Respondent 11. It adds that Charlie, not Lorelyn, should
assert those rights himself and that Lorelyn lacks legal "standing"
to do so.
Id., at 11, and n. 2. This Court has made clear,
however, that a party can "assert" the constitutional rights of
another person, where (1) that party has "suffered an 'injury in
fact'''; (2) the party and the other person have a "close
relationship"; and (3) "there was some hindrance" to the other
person's "asserting" his "own rights."
Campbell v.
Louisiana, ante, at 397; see also
Powers v.
Ohio, 499 U.
S. 400, 411 (1991). And these three requirements are met
here.
Lorelyn has suffered an "injury in fact." She has a "close" and
relevant relationship with the other person, namely, her father.
And there was "some hindrance" to her father's asserting his own
rights. Charlie began this lawsuit (originally filed in Texas) as a
party, raising his own equal protection claim. The Government
originally moved to dismiss the complaint, contending that
Charlie "should be dismissed from this suit because he
lack[ed] standing." Motion to Dismiss Plaintiff's First Amended
Complaint, or, in the Alternative, to Transfer Venue 6. The
District Court agreed with the Government that Charlie lacked
"standing," and he was dismissed from the suit. App. 11a. Lorelyn
remained as the sole plaintiff, and for reasons of venue, see 28 U.
S. C. § 1391(e)(1), the court then transferred the case to the
District of Columbia pursuant to § 1406(a). App. 11a.
474
The conclusion that the Government "hindered" Charlie's
assertion of his own rights in this case is irresistible.
The Government points out that Charlie might have appealed the
adverse Texas District Court ruling. Brief for Respondent 11, n. 2.
But appeals take time and money; the transfer of venue left the
plaintiffs uncertain about where to appeal; the case was being
heard with Lorelyn as plaintiff in any event; and the resulting
comparison of costs and benefits (viewed prospectively) likely
would have discouraged Charlie's pursuit of the alternative appeal
route. The Government's successful dismissal motion thus had
practical consequences that "hindered" Charlie at least as much as
those we have elsewhere said create "hindrances" sufficient to
satisfy this portion of the "third-party standing" test. See,
e.
g., Campbell, supra, at 398 (criminal defendant can assert
rights of racially excluded petit jurors because of "arduous"
process surrounding, and small benefits accruing to, juror effort
to vindicate own rights); cf.
Craig v.
Boren,
429 U. S. 190,
193-194 (1976) ("decision ... to forgo consideration of the
constitutional merits ... to await" another party's identical claim
would "foster repetitive and time-consuming litigation under the
guise of caution and prudence").
Second, the Government, citing
United States v.
VerdugoUrquidez, 494 U. S. 259 (1990), and
Johnson v.
Eisentrager, 339 U. S. 763 (1950),
argues that the Fifth Amendment does not protect an alien, such as
Lorelyn, living outside the United States. Brief for Respondent
11-12. The rights to be vindicated here, however, are Charlie's,
not Lorelyn's. And, in any event, those cases, as JUSTICE STEVENS
points out, are irrelevant, for the matter at issue here is whether
or not Lorelyn is a citizen. See
Rogers v.
Bellei,
401 U. S. 815
(1971) (considering on the merits a putative citizen's claim that
he was a citizen due to the operation of the Fifth Amendment, even
though he apparently was living outside the United States at the
time he filed suit).
475
Third, the Government argues that Lorelyn cannot succeed because
a federal court lacks the power to grant her the relief she seeks,
namely, a grant of citizenship. Brief for Respondent 43-50. As I
shall later explain in more detail, however, this argument is
beside the point, for, once the two unconstitutional clauses are
excised from the statute, that statute operates automatically to
confer citizenship upon Lorelyn "at birth." 8 U. S. C. § 1401; see
Part V,
infra.
JUSTICE O'CONNOR, joined by JUSTICE KENNEDY, says that Lorelyn
cannot assert her father's rights because "she has not demonstrated
a substantial hindrance to her father's ability to assert his own
rights."
Ante, at 447. But the obstacles that the Government
placed in her father's path substantially hindered his efforts to
do so in practice. See
supra, at 473-474. Several of the
cases mentioned in JusTICE O'CONNOR'S opinion involved the denial
of standing, but none of those cases involved any "hindrance," and
JUSTICE O'CONNOR does not claim that they do. See
FW/PBS,
Inc. v.
Dallas, 493 U. S. 215, 234 (1990)
(husband lacks standing to assert wife's moot claim);
Bender
v.
Williamsport Area School Dist., 475 U. S. 534, 544-545
(1986) (school board member lacks standing to defend on board's
behalf a claim that all other board members voted not to defend);
Gladstone, Realtors v.
Village of Bellwood, 441 U. S. 91, 112, n. 25
(1979) (nonresidents lack standing to challenge local real estate
practices as discriminatory);
Heald v.
District of
Columbia, 259 U.
S. 114, 123 (1922) (District resident lacks standing to claim
local tax unconstitutional as applied to bonds held by nonresidents
outside District). I have previously pointed to cases in which the
Court has found thirdparty standing where the "hindrance" was of
the same kind and approximate degree as that present here.
Supra, at 474. There are, of course, other cases finding
standing that arguably involve even greater hindrance. See,
e.
g., Hodel v.
Irving, 481 U. S. 704, 711-712
(1987);
Carey v.
Population Services Int'l, 431 U. S. 678, 684, n. 4
(1977);
Singleton v.
476
Wulff, 428
U. S. 106, 108 (1976);
Craig, supra, at 192;
Eisenstadt v.
Baird, 405 U. S. 438, 446
(1972);
NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449, 459
(1958);
Barrows v.
Jackson, 346 U. S. 249, 254
(1953). But they set no inner limit.
Nor do I agree with JUSTICE O'CONNOR'S determination that
"rational scrutiny" must apply to Lorelyn's assertion of her own
rights. Lorelyn belongs to a class made up of children of citizen
fathers, whom the law distinguishes from the class of children of
citizen mothers, solely on grounds of the parent's gender. This
Court, I assume, would use heightened scrutiny were it to review
discriminatory laws based upon ancestry, say, laws that denied
voting rights or educational opportunity based upon the religion,
or the racial makeup, of a parent or grandparent. And, if that is
so, I am not certain that it makes a significant difference whether
one calls the rights at issue those of Lorelyn or of her father.
Allen v.
Wright, 468 U. S. 737 (1984),
does not hold to the contrary.
Id., at 755 (black
schoolchildren's parents who claimed a "stigmatizing injury" due to
Internal Revenue Service decision to grant tax exempt status to
racially discriminatory private schools had not been "personally
denied equal treatment," and thus had not been injured).
Regardless, like JUSTICE O'CONNOR, I "do not share," and thus I
believe a Court majority does not share, "JUSTICE STEVENS'
assessment that the provision withstands heightened scrutiny."
Ante, at 451. I also agree with JUSTICE O'CONNOR that "[i]t
is unlikely" that "gender classifications based on stereotypes can
survive heightened scrutiny,"
ante, at 452, a view shared by
at least five Members of this Court. Indeed, for reasons to which I
shall now turn, we must subject the provisions here at issue to
"heightened scrutiny." And those provisions cannot survive.
III
This case is about American citizenship and its transmission
from an American parent to his child. The right of citi-
477
zenship, as this Court has said, is "a most precious right."
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 159
(1963); see also
Fedorenko v.
United States, 449 U. S. 490, 507 (1981)
(citizenship is a "priceless treasure" (internal quotation marks
omitted));
Luria v.
United States, 231 U. S. 9, 22 (1913)
("Citizenship is membership in a political society");
Afroyim v.
Rusk, 387 U. S. 253, 268 (1967)
("[This Nation's] citizenry is the country and the country is its
citizenry").
Further, the tie of parent to child is a special one, which in
other circumstances by itself has warranted special constitutional
protection. See,
e. g., Wisconsin v.
Yoder, 406 U. S. 205 (1972);
Pierce v.
Society of Sisters, 268 U. S. 510 (1925);
Meyer v.
Nebraska, 262 U. S. 390 (1923); see
also
Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535 (1942).
Moreover, American statutory law has consistently recognized the
rights of American parents to transmit their citizenship to their
children. See Act of Mar. 26, 1790, § 1, 1 Stat. 103; Act of Jan.
29, 1795, § 3, 1 Stat. 415; Act of Apr. 14, 1802, § 4, 2 Stat. 155;
Act of Feb. 10, 1855, § 1, 10 Stat. 604; Rev. Stat. § 1993; Act of
Mar. 2, 1907, § 6, 34 Stat. 1229; Act of May 24, 1934, § 1, 48
Stat. 797; Nationality Act of 1940, § 201(g), 54 Stat. 1139;
Immigration and Nationality Act of 1952, §§ 301(a)(7), (b), 66
Stat. 235, 236, as amended, 8 U. S. C. § 1401; cf.,
e. g., 1
Oppenheim's International Law § 384 (R. Jennings & A. Watts 9th
ed. 1992) (noting that in many States, children born abroad of
nationals become nationals); 43 A. Berger, Encyclopedic Dictionary
of Roman Law 389 (1953) (Roman citizenship was acquired principally
by parentage); Sandifer, A Comparative Study of Laws Relating to
Nationality at Birth and to Loss of Nationality, 29 Am. J. Int'l L.
248, 248-261, 278 (1935) (discussing citizenship laws throughout
the world and noting the "widespread extent of the rule of
jus
sanguinis"); E. de Vattel, The Law of Nations 101-102 (J.
Chitty transl. 1883) (1758).
Finally, the classification at issue is gender based, and we
have held that, under the equal protection principle, such
478
classifications may not rest on generalizations about the
different capacities of males and females when neutral categories
would serve the legislature's end.
United States v.
Virginia, 518 U. S., at 540-546.
These circumstances mean that courts should not diminish the
quality of review-that they should not apply specially lenient
standards-when they review these statutes. The statutes focus upon
two of the most serious of human relationships, that of parent to
child and that of individual to the State. They tie each to the
other, transforming both while strengthening the bonds of loyalty
that connect family with Nation. Yet because they confer the status
of citizenship "at birth," they do not involve the transfer of
loyalties that underlies the naturalization of aliens, where
precedent sets a more lenient standard of review. See
Fiallo
v.
Bell, 430 U. S. 787 (1977).
To the contrary, the same standard of review must apply when a
married American couple travel abroad or temporarily work abroad
and have a child as when a single American parent has a child born
abroad out of wedlock. If the standard that the law applies is
specially lenient, then statutes conferring citizenship upon these
children could discriminate virtually free of independent judicial
review. And as a result, many such children, lacking citizenship,
would be placed outside the domain of basic constitutional
protections. Nothing in the Constitution requires so anomalous a
result.
I recognize that, ever since the Civil War, the transmission of
American citizenship from parent to child,
jus sanguinis,
has played a role secondary to that of the transmission of
citizenship by birthplace,
jus soli. See
Rogers v.
Bellei, 401 U. S., at 828; see also
Weedin v.
Chin
Bow, 274 U. S.
657, 669-671 (1927) (citing
United States v.
Wong Kim
Ark, 169 U. S. 649, 674 (1898), and id., at 714 (Fuller, C. J.,
dissenting)). That lesser role reflects the fact that the
Fourteenth Amendment's Citizenship Clause does not mention statutes
that might confer citizenship "at birth" to children of
Americans
479
born abroad. U. S. Const., Arndt. 14, § 1 (stating that "[a]ll
persons born or naturalized in the United States ... are
citizens"). But that omission, though it may give Congress the
power to decide whether or not to extend citizenship to children
born outside the United States, see
Rogers v.
Bellei,
supra, at 835, does not justify more lenient "equal protection"
review of statutes that embody a congressional decision to do
so.
Nothing in the language of the Citizenship Clause argues for
less close scrutiny of those laws conferring citizenship at birth
that Congress decides to enact. Nor have I found any support for a
lesser standard in either the history of the Clause or its purpose.
To the contrary, those who wrote the Citizenship Clause hoped
thereby to assure that courts would not exclude newly freed
slaves-born within the United States-from the protections the
Fourteenth Amendment provided, including "equal protection of the
laws." See,
e. g., Afroyim v.
Rusk, 387 U. S., at
262;
id., at 283-284 (Harlan, J., dissenting); H. Flack,
Adoption of the Fourteenth Amendment 83-97 (1908). They took
special care, lest deprivation of citizenship undermine the
Amendment's guarantee of "equal protection of the laws." Care is no
less necessary when statutes, transferring citizenship between
American parent and child, make the child a citizen "at birth." How
then could the Fourteenth Amendment itself provide support for a
diminished standard of review?
Nor have I found any such support in the history of the
jus
sanguinis statutes. That history shows a virtually unbroken
tradition of transmitting American citizenship from parent to child
"at birth," under statutes that imposed certain residence
requirements.
Supra, at 477; see also
Bellei, supra,
at 835. A single gap occurred when, for a brief period of time, the
relevant statutes (perhaps inadvertently) failed to confer
citizenship upon what must have been a small group of children born
abroad between 1802 and 1855 whose citizen fathers were also born
between 1802 and 1855. See
480
Montana v.
Kennedy, 366 U. S. 308, 311-312
(1961);
Weedin, supra, at 663-664;
Wong Kim Ark,
supra, at 673-674. But even then, some courts, recognizing the
importance of the right, found common-law authority for the
transmission to those children of their parent's American
citizenship. See
Ludlam v.
Ludlam, 26 N. Y. 356,
362-372 (1863); see also
Lynch v.
Clarke, 1 Sandf.
Ch. 583, 659-663 (N. Y. 1844).
The history of these statutes does reveal considerable
discrimination against women, particularly from 1855 to 1934. See
ante, at 463-465 (GINSBURG, J., dissenting). But that
discrimination then cannot justify this discrimination now, when
much discrimination that the law once tolerated, including
"de
jure segregation and the total exclusion of women from juries,"
is "now unconstitutional even though [it] once coexisted with the
Equal Protection Clause." J.
E. B. v.
Alabama ex rel. T.
B., 511 U. S.
127, 143, n. 15 (1994).
Neither have I found case law that could justify use here of a
more lenient standard of review. JUSTICE STEVENS points out that
this Court has said it will apply a more lenient standard in
matters of "'immigration and naturalization.'''
Ante, at
435, n. 11 (quoting
Mathews v.
Diaz, 426 U. S. 67, 82
(1976)). But that language arises in a case involving aliens. The
Court did not say it intended that phrase to include statutes that
confer citizenship "at birth." And Congress does not believe that
this kind of citizenship involves "naturalization." 8 U. S. C. §
1101(a)(23) ("The term 'naturalization' means the conferring of
nationality of a state upon a person
after birth, by any
means whatsoever" (emphasis added)). The Court to my knowledge has
never said, or held, or reasoned that statutes automatically
conferring citizenship "at birth" upon the American child of
American parents receive a more lenient standard of review.
The Court has applied a deferential standard of review in cases
involving aliens, not in cases in which only citizens' rights were
at issue. See
Mathews, supra (rights of alien
481
residents);
Kleindienst v.
Mandel, 408 U. S. 753 (1972)
(citizens' rights related to treatment of alien);
Fiallo v.
Bell, 430 U. S. 787 (1977) (citizens' rights to obtain
immigration preferences for relatives who are aliens). When the
Court has considered the latter kind of case, it has not lowered
the standard of review. See
Bellei, 401 U. S., at 828-836
(evaluating due process challenge to citizenship statute under
generally applicable standard).
In sum, the statutes that automatically transfer American
citizenship from parent to child "at birth" differ significantly
from those that confer citizenship on those who originally owed
loyalty to a different nation. To fail to recognize this
difference, and consequently to apply an unusually lenient
constitutional standard of review here, could deprive the children
of millions of Americans, married and unmarried, working abroad,
traveling, say, even temporarily to Canada or Mexico, of the most
basic kind of constitutional protection. See U. S. Dept. of
Commerce, Bureau of Census, Statistical Abstract of the United
States 53 (1997) (Table 54) (reporting that, as of 1990, 1.86
million United States citizens were born abroad or at sea to
American parents); see also Hearing before the Subcommittee on
International Operations of the House Committee on Foreign Affairs,
102d Cong., 1st Sess., 114 (1991) (testimony of Andrew P. Sundberg)
("According to the most recent survey carried out by the State
Department, 40,000 children are born abroad each year to a U. S.
citizen parent"). Thus, generally prevailing, not specially
lenient, standards of review must apply.
IV
If we apply undiluted equal protection standards, we must hold
the two statutory provisions at issue unconstitutional. The
statutes discriminate on the basis of gender, making it
significantly more difficult for American fathers than for American
mothers to transmit American citizenship to their children born out
of wedlock. If the citizen parent is a man,
482
the statute requires (1) a promise by the father to support the
child until the child is 18, and (2) before the child turns 18,
legitimation, written acknowledgment by the father under oath, or
an adjudication of paternity. 8 U. S. C. § 1409(a). If the citizen
parent is a woman, she need not do either. § 1409(c).
Distinctions of this kind-based upon gender-are subject to a
"'strong presumption'" of constitutional invalidity.
Virginia, 518 U. S., at 532 (quoting J.
E. B., supra,
at 152 (KENNEDY, J., concurring in judgment)). The Equal Protection
Clause permits them only if the Government meets the "demanding"
burden of showing an "'exceedingly persuasive'" justification for
the distinction.
Virginia, supra, at 533; see also J.
E.
B., supra, at 136;
Mississippi Univ. for Women v.
Hogan, 458 U.
S. 718, 724 (1982);
Personnel Administrator of Mass. v.
Feeney, 442 U.
S. 256, 273 (1979);
Kirchberg v.
Feenstra,
450 U. S. 455,
461 (1981). That distinction must further important governmental
objectives, and the discriminatory means employed must be
"substantially related" to the achievement of those objectives.
Virginia, supra, at 533 (citing
Mississippi Univ. for
Women, supra, at 724). This justification "must be genuine, not
hypothesized or invented
post hoc in response to
litigation."
Virginia, 518 U. S., at 533. Further, "it must
not rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females."
Ibid.; see
also J.
E. B., supra, at 139-140, and n. 11;
Craig,
429 U. S., at 201;
Califano v.
Goldfarb, 430 U. S. 199, 223-224
(1977) (STEVENS, J., concurring in judgment);
Weinberger v.
Wiesenfeld, 420 U. S. 636, 643
(1975). The fact that the statutes "discriminat[e] against males
rather than against females" is beside the point.
Mississippi
Univ. for Women, 458 U. S., at 723.
The statutory distinctions here violate these standards.
They depend for their validity upon the generalization that
mothers are significantly more likely than fathers to care for
483
their children, or to develop caring relationships with their
children. But consider how the statutes work once one abandons that
generalization as the illegitimate basis for legislative
line-drawing we have held it to be.
Id., at 726, 730. First,
assume that the American citizen is also the Caretaker Parent. The
statute would then require a Male Caretaker Parent to acknowledge
his child prior to the child's 18th birthday (or for the parent or
child to obtain a court equivalent) and to provide financial
support. It would not require a Female Caretaker Parent to do
either. The gender-based distinction that would impose added
burdens only upon the Male Caretaker Parent would serve no purpose
at all. Second, assume that the American citizen is the
NonCaretaker Parent. In that circumstance, the statute would
forgive a Female Non-Caretaker Parent from complying with the
requirements (for formal acknowledgment and written promises to
provide financial support) that it would impose upon a Male
Non-Caretaker Parent. Again, the gender-based distinction that
would impose lesser burdens only upon the Female Non-Caretaker
Parent would serve no purpose.
To illustrate the point, compare the family before usCharlie,
Lorelyn, and Luz-with an imagined family-Carlos, a Philippine
citizen, Lucy, his daughter, and Lenora, Lucy's mother and an
American citizen. Suppose that Lenora, Lucy's unmarried mother,
returned to the United States soon after Lucy's birth, leaving
Carlos to raise his daughter. Why, under those circumstances,
should Lenora not be required to fulfill the same statutory
requirements that here apply to Charlie? Alternatively, imagine
that Charlie had taken his daughter Lorelyn back to the United
States to raise. The statute would not make Lorelyn an American
from birth unless Charlie satisfied its two conditions. But had our
imaginary family mother, Lenora, taken her child Lucy back to the
United States, the statute would have automatically made her an
American from birth with-
484
out anyone having satisfied the two conditions. The example
suggests how arbitrary the statute's gender-based distinction is
once one abandons the generalization that mothers, not fathers,
will act as caretaker parents.
Let me now deal more specifically with the justifications that
JUSTICE STEVENS finds adequate. JUSTICE STEVENS asserts that
subsection (a)(4) serves two interests: first, "ensuring reliable
proof of a biological relationship between the potential citizen
and its citizen parent,"
ante, at 436, and second,
"encouraging" certain relationships or ties, namely, "the
development of a healthy relationship between the citizen parent
and the child while the child is a minor,"
ante, at 438, as
well as "the related interest in fostering ties between the
foreign-born child and the United States," ibid. I have no doubt
that these interests are important. But the relationship between
the statutory requirements and those particular objectives is one
of total misfit.
Subsection (a)(4) requires, for example, the American citizen
father to "acknowledg[eJ" paternity before the child reaches 18
years of age, or for the child or parent to obtain a court
equivalent (legitimation or adjudication of paternity). JUSTICE
STEVENS suggests that this requirement "produces the rough
equivalent of the documentation," such as a birth certificate
memorialized in hospital records, "already available to evidence
the blood relationship between the mother and the child."
Ante, at 436. But, even if I assume the "equivalency" (only
for argument's sake, since birth certificates do not invariably
carry a mother's true name or omit the father's), I still do not
understand the need for the priorto-18
legitimation-or-acknowledgment requirement. When the statute was
written, one might have seen the requirement as offering some
protection against false paternity claims. But that added
protection is unnecessary in light of inexpensive DNA testing that
will prove paternity with certainty. See Shapiro, Reifier, and
Psome, The DNA Paternity Test: Legislating the Future Paternity
Action, 7 J.
485
Law & Health 1, 29 (1992-1993) (current testing methods can
determine probability of paternity to 99.999999% accuracy); see
also H. R. Rep. No. 98-527, p. 38 (1983).
Moreover, a different provision of the statute, subsection
(a)(l), already requires proof of paternity by "clear and
convincing evidence." No one contests the validity of that
provision, and I believe that biological differences between men
and women would justify its imposition where paternity is at issue.
In light of that provision, subsection (a)( 4)'s protection against
false claims is not needed. Indeed, the Government concedes that,
in light of the "clear and convincing evidence" requirement, the
"time limit for meeting the legitimation-or-acknowledgement
requirement of Section 309(a)(4) must ... reflect, at least in
part, some
other congressional concern." Brief for
Respondent 27 (emphasis added).
JUSTICE STEVENS says that this "other concern" is a concern for
the establishment of relationships and ties, to the father and to
the United States, all before the child is 18.
Ante, at 438.
According to JUSTICE STEVENS, the way in which the requirement
serves this purpose is by making certain the father knows of the
child's existence-in the same way, it says, that a mother, by
giving birth, automatically knows that the child exists.
Ibid.
The distance between this knowledge and the claimed objectives,
however, is far too great to satisfy any legal requirement of
tailoring or proportionality. And the assumption that this
knowledge of birth could make a significant gender-related
difference rests upon a host of unproved gender-related hypotheses.
Simple knowledge of a child's existence may, or may not, be
followed by the kinds of relationships for which JUSTICE STEVENS
hopes. A mother or a father, knowing of a child's birth, may
nonetheless fail to care for the child or even to acknowledge the
child. A father with strong ties to the child may, simply by lack
of knowledge, fail to comply with the statute's formal require-
486
ments. A father with weak ties might readily comply. Moreover,
the statute does little to assure any tie for, as JUSTICE STEVENS
acknowledges, a child might obtain an adjudication of paternity
"absent any affirmative act by the father, and perhaps even over
his express objection."
Ante, at 434.
To make plausible the connection between the statute's
requirement and the asserted "relationship" goals, JUSTICE STEVENS
must find a factual scenario where a father's knowledge-equivalent
to the mother's knowledge that she has given birth-could lead to
the establishment of a more meaningful parenting relationship or
tie to America. He therefore points to what one might term the "war
baby" problem-the problem created by American servicemen fathering
children overseas and returning to America unaware of the related
pregnancy or birth. The statutory remedy before us, however, is
disproportionately broad even when considered in relation to that
problem. JUSTICE STEVENS refers to 683,000 service personnel
stationed in the Far East in 1970 when Lorelyn was born.
Ante, at 439. The statute applies, however, to all Americans
who live or travel abroad, including the 3.2 million private
citizens, and the 925,000 Federal Government employees, who live,
or who are stationed, abroad-of whom today only 240,000 are active
duty military employees, many of whom are women. U. S. Dept. of
State, Private American Citizens Residing Abroad (Nov. 21, 1997);
U. S. Dept. of Commerce, Bureau of the Census, Americans Overseas
in U. S. Censuses, Technical Paper 62, p. 62 (Nov. 1993) (1990
census figures); U. S. Dept. of Defense, Selected Manpower
Statistics 23, 44 (DIOR/MOl-96 1996). Nor does the statute seem to
have been aimed at the "war baby" problem, for the precursor to the
provisions at issue was first proposed in a 1938 report and was
first adopted in the Nationality Act of 1940, which was enacted
before the United States entered World War II. Nationality
Laws of the United States: Message from the President of the
United
487
States, 76th Cong., 1st Sess., pt. 1, pp. 17-18 (Comm. Print
submitted to House Comm. on Immigration and N aturalization, 1939);
Nationality Act of 1940, § 205, 54 Stat. 1139.
Nor is there need for the gender-based discrimination at issue
here, for, were Congress truly interested in achieving the goals
JUSTICE STEVENS posits in the way JUSTICE STEVENS suggests, it
could simply substitute a requirement of knowledge of birth for the
present subsection (a)(4); or it could distinguish between
Caretaker and N oncaretaker Parents, rather than between men and
women. A statute that does not do so, but instead relies upon
gender-based distinctions, appears rational only, as I have said,
supra, at 482-484, if one accepts the legitimacy of
gender-based generalizations that, for example, would equate gender
and caretakinggeneralizations of a kind that this Court has
previously found constitutionally impermissible. See,
e. g.,
Virginia, 518 U. S., at 542, 546 (striking down men-only
admissions policy at Virginia Military Institute even assuming that
"most women would not choose VMI's adversative method"); J. E. B.,
511 U. S., at 139, n. 11 (invalidating gender-based peremptory
challenges "[e]ven if a measure of truth can be found in some of
the gender stereotypes used to justify" them);
Craig, 429 U.
S., at 201 (invalidating Oklahoma law that established different
drinking ages for men and women, although the evidence supporting
the age differential was "not trivial in a statistical sense");
Wiesenfeld, 420 U. S., at 645 (holding unconstitutional
statutory classification giving to widowed mothers benefits not
available to widowed fathers even though "the notion that men are
more likely than women to be the primary supporters of their
spouses and children is not entirely without empirical support").
Although JUSTICE STEVENS cites
Lehr v.
Robertson,
463 U. S. 248
(1983), for support,
ante, at 441, that case was decided
before the DNA advances described earlier.
For similar reasons, subsection (3) denies Charlie Miller "equal
protection" of the laws. That subsection requires an
488
American father to "agre[e] ... to provide financial support"
for the child until the child "reaches the age of 18," but does not
require the same of an American mother. I agree with the Government
that this provision has as one objective helping to assure ties
between father and child. Brief for Respondent 26. But I do not see
why the same need does not exist with respect to a mother. And,
where the American parent is the Non-Caretaker Parent, the need for
such assurances would seem the same in respect to either sex. Where
the American parent is the Caretaker Parent, there would seem no
need for the assurance regardless of gender. Since either men or
women may be caretakers, and since either men or women may be
"breadwinners," one could justify the gender distinction only on
the ground that more women are caretakers than men, and more men
are "breadwinners" than women. This, again, is the kind of
generalization that we have rejected as justifying a gender-based
distinction in other cases.
Virginia, supra, at 540-546; J.
E. B., supra, at 139, n. 11;
Craig, supra, at 201;
Wiesenfeld, supra, at 645.
For these reasons, I can find no "exceedingly persuasive"
justification for the gender-based distinctions that the statute
draws.
v
JUSTICE SCALIA argues that, if the provisions at issue violate
the Constitution, we nonetheless are powerless to find a remedy.
But that is not so. The remedy is simply that of striking from the
statute the two subsections that offend the Constitution's equal
protection requirement, namely, subsections (a)(3) and (a)(4). With
those subsections omitted, the statute says that the daughter,
Lorelyn, of one who, like Charlie, has proved paternity by "clear
and convincing evidence," is an American citizen, and has lived in
the United States for five years, is a "citize[n] of the United
States at birth." 8 U. S. C. §§ 1409(a) and 1401. Whatever
limitations there may be upon the Court's powers to grant
citizen-
489
ship, those limitations are not applicable here, for the Court
need not grant citizenship. The statute itself grants citizenship
automatically, and "at birth." And this Court need only declare
that that is so.
INS v.
Pangilinan, 486 U. S. 875 (1988),
which JUSTICE SCALIA cites in support, is beside the point, for the
plaintiffs in that case, conceding that the statute at issue did
not make them citizens, asked the courts to confer citizenship as a
remedy in equity. Cf.
Bellei, 401 U. S., at 828-836
(assessing claim that statute conferred citizenship in the absence
of a provision argued to be unconstitutional, without identifying
any special remedial problems).
Of course, we can excise the two provisions only if Congress
likely would prefer their excision, rather than imposing similar
requirements upon mothers.
Califano v.
Westcott,
443 U. S. 76,
89-93 (1979);
Welsh v.
United States, 398 U. S. 333, 361 (1970)
(Harlan, J., concurring in result). But, since the provisions at
issue seem designed in significant part to address difficulties in
proving paternity (along with providing encouragement for fathers
to legitimate the child) and, since DNA advances have overcome the
paternity-proof difficulties, I believe that Congress would have
preferred severance.
JUSTICE SCALIA is also wrong, I believe, when he says that "the
INA itself contains a clear statement of congressional intent" not
to sever,
ante, at 457, for the Act in fact contains the
following explicit severability provision:
"If any particular provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the
remainder of the Act and the application of such provision to other
persons or circumstances shall not be affected thereby." § 406, 66
Stat. 281; see note following 8 U. S. C. § 1101, p. 38,
"Separability."
The provision cited by JUSTICE SCALIA says:
"A person may be naturalized as a citizen of the United States
in the manner and under the conditions
490
prescribed in this title and not otherwise." § 310(d), 66 Stat.
239, 8 U. S. C. § 1421(d).
As "naturalization" under this statute does not include the
conferral of citizenship at birth, the provision does not apply
here. See 8 U. S. C. § llOl(a)(23) ("The term 'naturalization'
means the conferring of nationality of a state upon a person
after birth" (emphasis added)).
JUSTICE SCALIA also says that the law, as excised, would favor
fathers over mothers.
Ante, at 459. The law, however, would
require both fathers and mothers to prove their parentage; it would
require that one or the other be an American, it would impose
residency requirements that, if anything, would disfavor fathers. I
cannot find the reverse favoritism that JUSTICE SCALIA fears.
For these reasons, I would reverse the judgment of the Court of
Appeals.
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