OCTOBER TERM, 2000
Syllabus
TUAN ANH NGUYEN ET AL.
v. IMMIGRATION AND NATURALIZATION
SERVICE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No.99-2071. Argued January 9, 200l-Decided June 11,2001
Petitioner Tuan Anh Nguyen was born out of wedlock in Vietnam to
a Vietnamese citizen and copetitioner Joseph Boulais, a United
States citizen. Nguyen became a lawful permanent United States
resident at age six and was raised by Boulais. At age 22, Nguyen
pleaded guilty in a Texas state court to two counts of sexual
assault on a child. Subsequently, respondent Immigration and
Naturalization Service initiated deportation proceedings against
him based on his serious criminal offenses. The Immigration Judge
ordered him deportable. Boulais obtained an order of parentage from
a state court while Nguyen's appeal was pending before the Board of
Immigration Appeals, but the Board dismissed the appeal, rejecting
Nguyen's citizenship claim because he had not complied with 8 U. S.
C. § 1409(a)'s requirements for one born out of wedlock and abroad
to a citizen father and a noncitizen mother. On appeal, the Fifth
Circuit rejected petitioners' claim that § 1409 violates equal
protection by providing different citizenship rules for children
born abroad and out of wedlock depending on whether the citizen
parent is the mother or the father.
Held: Section 1409 is consistent with the equal
protection guarantee embedded in the Fifth Amendment's Due Process
Clause. Pp. 59-73.
(a) A child born abroad and out of wedlock acquires at birth the
nationality status of a citizen mother who meets a specified
residency requirement. § 1409(c). However, when the father is the
citizen parent,
inter alia, one of three affirmative steps
must be taken before the child turns 18: legitimization, a
declaration of paternity under oath by the father, or a court order
of paternity. § 1409(a)(4). The failure to satisfy this section
renders Nguyen ineligible for citizenship. Pp.59-60.
(b) A gender-based classification withstands equal protection
scrutiny if it serves important governmental objectives and the
discriminatory means employed are substantially related to the
achievement of those objectives.
United States v.
Virginia, 518
U. S. 515, 533. Congress' decision to impose different
requirements on unmarried fathers and unmarried mothers is based on
the significant difference between their respective relationships
to the potential citizen at the time
54
Syllabus
of birth and is justified by two important governmental
interests. Pp. 60-71.
(1) The first such interest is the importance of assuring that a
biological parent-child relationship exists. The mother's relation
is verifiable from the birth itself and is documented by the birth
certificate or hospital records and the witnesses to the birth.
However, a father need not be present at the birth, and his
presence is not incontrovertible proof of fatherhood. See
Lehr v.
Robertson, 463 U. S. 248, 260, n.
16. Because fathers and mothers are not similarly situated with
regard to proof of biological parenthood, the imposition of
different rules for each is neither surprising nor troublesome from
a constitutional perspective. Section 1409(a)(4)'s provision of
three options is designed to ensure acceptable documentation of
paternity. Petitioners argue that § 1409(a)(1)'s requirement that a
father provide clear and convincing evidence of parentage is
sufficient to achieve the end of establishing paternity, given the
sophistication of modern DNA tests. However, that section does not
mandate DNA testing. Moreover, the Constitution does not require
that Congress elect one particular mechanism from among many
possible methods of establishing paternity, and § 1409(a)(4)
represents a reasonable legislative conclusion that the
satisfaction of one of several alternatives will suffice to
establish the father-child blood link required as a predicate to
the child's acquisition of citizenship. Finally, even a facially
neutral rule would sometimes require fathers to take additional
affirmative steps which would not be required of mothers, whose
names will be on the birth certificate as a result of their
presence at the birth, and who will have the benefit of witnesses
to the birth to call upon. Pp. 62-64.
(2) The second governmental interest furthered by § 1409(a)(4)
is the determination to ensure that the child and citizen parent
have some demonstrated opportunity to develop a relationship that
consists of real, everyday ties providing a connection between
child and citizen parent and, in turn, the United States. Such an
opportunity inheres in the event of birth in the case of a citizen
mother and her child, but does not result as a matter of biological
inevitability in the case of an unwed father. He may not know that
a child was conceived, and a mother may be unsure of the father's
identity. One concern in this context has always been with young
men on duty with the Armed Forces in foreign countries. Today, the
ease of travel and willingness of Americans to visit foreign
countries have resulted in numbers of trips abroad that must be of
real concern when contemplating the prospect of mandating, contrary
to Congress' wishes, citizenship by male parentage subject to no
condition other than the father's residence in this country. Equal
protection principles do not require Congress to ignore this
55
reality. Section 1409 takes the unremarkable step of ensuring
that the opportunity inherent in the event of birth as to the
mother-child relationship exists between father and child before
citizenship is conferred upon the latter. That interest's
importance is too profound to be satisfied by a DNA test because
scientific proof of biological paternity does not, by itself,
ensure father-child contact during the child's minority. Congress
is well within its authority in refusing, absent proof of an
opportunity for a relationship to develop, to commit this country
to embracing a child as a citizen. Contrary to petitioners'
argument, § 1409 does not embody a gender-based stereotype. There
is nothing irrational or improper in recognizing that at the moment
of birth-a critical event in the statutory scheme and tradition of
citizenship law-the mother's knowledge of the child and the fact of
parenthood have been established in a way not guaranteed to the
unwed father. Pp. 64-68.
(3) The means Congress chose substantially relate to its
interest in facilitating a parent-child relationship. First,
various statutory provisions, in addition to § 1409(a), require
that some act linking a child to the United States occur before the
child turns 18. Second, petitioners' argument that § 1409(a)(4)
reflects a stereotype that women are more likely than men to
actually establish the required relationship misconceives both the
governmental interest's nature and the equal protection inquiry. As
to the former, Congress could have chosen to advance the interest
of ensuring a meaningful relationship in every case, but it enacted
instead an easily administered scheme to promote the different but
still substantial interest of ensuring an opportunity for that
relationship to develop. Petitioners' argument confuses the equal
protection inquiry's means and ends; § 1409(a)(4) should not be
invalidated because Congress elected to advance an interest that is
less demanding to satisfy than some alternative. Even if one
conceives of Congress' real interest as the establishment of a
meaningful relationship, it is almost axiomatic that a policy
seeking to foster the opportunity for meaningful parent-child bonds
to develop has a close and substantial bearing on the governmental
interest in that bond's formation. Here, Congress' means are in
substantial furtherance of an important governmental objective, and
the fit between the means and that end is exceedingly persuasive.
See
Virginia, supra, at 533. Pp.68-70.
(c) Section 1409(a)(4) imposes a minimal obligation. Only the
least onerous of its three options must be satisfied; and it can be
satisfied on the day of birth, or the next day, or for the next 18
years. Section 1409(a), moreover, is not the sole means of
attaining citizenship for the child, who can seek citizenship in
his or her own right, rather than via reliance on parental ties.
pp. 70-71.
56
(d) Because the statute satisfies the equal protection scrutiny
applied to gender-based qualifications, this Court need not
consider whether it can confer citizenship on terms other than
those specified by Congress or assess the implications of
statements in earlier cases regarding the wide deference afforded
to Congress in exercising its immigration and naturalization power.
Pp.71-73.
208 F.3d
528, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined.
SCALIA, J., filed a concurring opinion, in which THOMAS, J.,
joined,
post, p. 73. O'CONNOR, J., filed a dissenting
opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined,
post, p. 74.
Martha F. Davis argued the cause for petitioners. With her on
the briefs were Nancy A. Falgout, Steven R. Shapiro, Lucas
Guttentag, Julie Goldscheid, and Sherry J. Leiwant.
Deputy Solicitor General Kneedler argued the cause for
respondent. With him on the brief were Solicitor General Waxman,
Assistant Attorney General Ogden, Austin C. Schlick, Michael Jay
Singer, and John S. Koppel.*
JUSTICE KENNEDY delivered the opinion of the Court. This case
presents a question not resolved by a majority of the Court in a
case before us three Terms ago. See
Miller v.
Albright, 523
U. S. 420 (1998). Title 8 U. S. C. § 1409 governs the
acquisition of United States citizenship by persons born to one
United States citizen parent and one noncitizen parent when the
parents are unmarried and the child is born outside of the United
States or its possessions. The statute imposes different
requirements for the child's acquisition of citizenship depending
upon whether the citizen parent is
*Briefs of amici curiae urging reversal were filed for Equality
Now et al. by Ogden Northrup Lewis and Jessica Neuwirth; and for
the National Women's Law Center et al. by Nancy Duff Campbell, Joan
Entmacher, Dina R. Lassow, and Nancy L. Perkins.
Moses Silverman and
Kenneth Kimerling filed a
brief for the Asian American Legal Defense and Education Fund,
Inc., as
amicus curiae.
57
the mother or the father. The question before us is whether the
statutory distinction is consistent with the equal protection
guarantee embedded in the Due Process Clause of the Fifth
Amendment.
I
Petitioner Tuan Anh Nguyen was born in Saigon, Vietnam, on
September 11, 1969, to copetitioner Joseph Boulais and a Vietnamese
citizen. Boulais and Nguyen's mother were not married. Boulais
always has been a citizen of the United States, and he was in
Vietnam under the employ of a corporation. After he and Nguyen's
mother ended their relationship, Nguyen lived for a time with the
family of Boulais' new Vietnamese girlfriend. In June 1975, Nguyen,
then almost six years of age, came to the United States. He became
a lawful permanent resident and was raised in Texas by Boulais.
In 1992, when Nguyen was 22, he pleaded guilty in a Texas state
court to two counts of sexual assault on a child. He was sentenced
to eight years in prison on each count. Three years later, the
United States Immigration and Naturalization Service (INS)
initiated deportation proceedings against Nguyen as an alien who
had been convicted of two crimes involving moral turpitude, as well
as an aggravated felony. See 8 U. S. C. §§ 1227(a)(2)(A)(ii) and
(iii) (1994 ed., Supp. IV). Though later he would change his
position and argue he was a United States citizen, Nguyen testified
at his deportation hearing that he was a citizen of Vietnam. The
Immigration Judge found him deportable.
Nguyen appealed to the Board of Immigration Appeals and, in
1998, while the matter was pending, his father obtained an order of
parentage from a state court, based on DNA testing. By this time,
Nguyen was 28 years old. The Board dismissed Nguyen's appeal,
rejecting his claim to United States citizenship because he had
failed to establish compliance with 8 U. S. C. § 1409(a), which
sets forth the re-
58
quirements for one who was born out of wedlock and abroad to a
citizen father and a noncitizen mother.
Nguyen and Boulais appealed to the Court of Appeals for the
Fifth Circuit, arguing that § 1409 violates equal protection by
providing different rules for attainment of citizenship by children
born abroad and out of wedlock depending upon whether the one
parent with American citizenship is the mother or the father. The
court rejected the constitutional challenge to § 1409(a).
208 F.3d
528, 535 (2000).
The constitutionality of the distinction between unwed fathers
and mothers was argued in
Miller, but a majority of the
Court did not resolve the issue. Four Justices, in two different
opinions, rejected the challenge to the genderbased distinction,
two finding the statute consistent with the Fifth Amendment, see
523 U. S., at 423 (opinion of STEVENS, J., joined by REHNQUIST, C.
J.), and two concluding that the court could not confer citizenship
as a remedy even if the statute violated equal protection, see id.,
at 452 (SCALIA, J., joined by THOMAS, J., concurring in judgment).
Three Justices reached a contrary result, and would have found the
statute violative of equal protection.
Id., at 460
(GINSBURG, J., joined by SOUTER and BREYER, JJ., dissenting); id.,
at 471 (BREYER, J., joined by SOUTER and GINSBURG, JJ.,
dissenting). Finally, two Justices did not reach the issue as to
the father, having determined that the child, the only petitioner
in
Miller, lacked standing to raise the equal protection
rights of his father.
Id., at 445 (O'CONNOR, J., joined by
KENNEDY, J., concurring in judgment).
Since
Miller, the Courts of Appeal have divided over the
constitutionality of § 1409. Compare
208 F.3d
528 (CA5 2000) (case below) with
Lake v.
Reno,
226 F.3d
141 (CA2 2000), and
United States v.
Ahumada-Aguilar, 189 F.3d
1121 (CA9 1999). We granted certiorari to resolve the conflict.
530 U. S. 1305 (2000). The father is before the Court in this case;
and, as all agree he has standing to raise the constitutional
claim, we now resolve it. We hold that § 1409(a)
59
is consistent with the constitutional guarantee of equal
protection.
II
The general requirement for acquisition of citizenship by a
child born outside the United States and its outlying possessions
and to parents who are married, one of whom is a citizen and the
other of whom is an alien, is set forth in 8 U. S. C. § 1401(g).
The statute provides that the child is also a citizen if, before
the birth, the citizen parent had been physically present in the
United States for a total of five years, at least two of which were
after the parent turned 14 years of age.
As to an individual born under the same circumstances, save that
the parents are unwed, § 1409(a) sets forth the following
requirements where the father is the citizen parent and the mother
is an alien:
"(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."
In addition, § 1409(a) incorporates by reference, as to the
citizen parent, the residency requirement of § 1401(g).
When the citizen parent of the child born abroad and out of
wedlock is the child's mother, the requirements for the transmittal
of citizenship are described in § 1409(c):
60
"(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."
Section 1409(a) thus imposes a set of requirements on the
children of citizen fathers born abroad and out of wedlock to a
noncitizen mother that are not imposed under like circumstances
when the citizen parent is the mother. All concede the requirements
of §§ 1409(a)(3) and (a)(4), relating to a citizen father's
acknowledgment of a child while he is under 18, were not satisfied
in this case. We need not discuss § 1409(a)(3), however. It was
added in 1986, after Nguyen's birth; and Nguyen falls within a
transitional rule which allows him to elect application of either
the current version of the statute, or the pre-1986 version, which
contained no parallel to § 1409(a)(3). See Immigration and
Nationality Act Amendments of 1986, 100 Stat. 3655; note following
8 U. S. C. § 1409;
Miller, supra, at 426, n. 3, 432 (opinion
of STEVENS, J.). And in any event, our ruling respecting §
1409(a)(4) is dispositive of the case. As an individual seeking
citizenship under § 1409(a) must meet all of its preconditions, the
failure to satisfy § 1409(a)(4) renders Nguyen ineligible for
citizenship.
III
For a gender-based classification to withstand equal protection
scrutiny, it must be established "'at least that the [challenged]
classification serves "important governmental objectives and that
the discriminatory means employed" are "substantially related to
the achievement of those objectives."'"
United States v.
Virginia, 518
U. S. 515, 533
61
(1996) (quoting
Mississippi Univ. for Women v.
Hogan,
458 U. S. 718, 724 (1982), in turn quoting
Wengler v.
Druggists Mut. Ins. Co., 446 U. S. 142, 150
(1980)). For reasons to follow, we conclude § 1409 satisfies this
standard. Given that determination, we need not decide whether some
lesser degree of scrutiny pertains because the statute implicates
Congress' immigration and naturalization power. See
Miller,
523 U. S., at 434, n.11 (explaining that the statute must be
subjected to a standard more deferential to the congressional
exercise of the immigration and naturalization power, but that
"[e]ven if ... the heightened scrutiny that normally governs gender
discrimination claims applied in this context," the statute would
be sustained (citations omitted)).
Before considering the important governmental interests advanced
by the statute, two observations concerning the operation of the
provision are in order. First, a citizen mother expecting a child
and living abroad has the right to reenter the United States so the
child can be born here and be a 14th Amendment citizen. From one
perspective, then, the statute simply ensures equivalence between
two expectant mothers who are citizens abroad if one chooses to
reenter for the child's birth and the other chooses not to return,
or does not have the means to do so. This equivalence is not a
factor if the single citizen parent living abroad is the father.
For, unlike the unmarried mother, the unmarried father as a general
rule cannot control where the child will be born.
Second, although § 1409(a)(4) requires certain conduct to occur
before the child of a citizen father, born out of wedlock and
abroad, reaches 18 years of age, it imposes no limitations on when
an individual who qualifies under the statute can claim
citizenship. The statutory treatment of citizenship is identical in
this respect whether the citizen parent is the mother or the
father. A person born to a citizen parent of either gender may
assert citizenship, assuming compliance
62
with statutory preconditions, regardless of his or her age. And
while the conditions necessary for a citizen mother to transmit
citizenship under § 1409(c) exist at birth, citizen fathers and/or
their children have 18 years to satisfy the requirements of §
1409(a)(4). See
Miller, supra, at 435 (opinion of STEVENS,
J.).
The statutory distinction relevant in this case, then, is that §
1409(a)(4) requires one of three affirmative steps to be taken if
the citizen parent is the father, but not if the citizen parent is
the mother: legitimation; a declaration of paternity under oath by
the father; or a court order of paternity. Congress' decision to
impose requirements on unmarried fathers that differ from those on
unmarried mothers is based on the significant difference between
their respective relationships to the potential citizen at the time
of birth. Specifically, the imposition of the requirement for a
paternal relationship, but not a maternal one, is justified by two
important governmental objectives. We discuss each in turn.
A
The first governmental interest to be served is the importance
of assuring that a biological parent-child relationship exists. In
the case of the mother, the relation is verifiable from the birth
itself. The mother's status is documented in most instances by the
birth certificate or hospital records and the witnesses who attest
to her having given birth.
In the case of the father, the uncontestable fact is that he
need not be present at the birth. If he is present, furthermore,
that circumstance is not incontrovertible proof of fatherhood. See
Lehr v.
Robertson, 463 U. S. 248, 260, n. 16
(1983) (" 'The mother carries and bears the child, and in this
sense her parental relationship is clear. The validity of the
father's parental claims must be gauged by other measures'"
(quoting
Caban v.
Mohammed, 441 U. S. 380, 397 (1979)
(Stewart, J., dissenting)));
Trimble v.
Gordon,
430
63
u. S. 762, 770 (1977) ("The more serious problems of proving
paternity might justify a more demanding standard for illegitimate
children claiming under their fathers' estates than that required
... under their mothers' estates ... "). Fathers and mothers are
not similarly situated with regard to the proof of biological
parenthood. The imposition of a different set of rules for making
that legal determination with respect to fathers and mothers is
neither surprising nor troublesome from a constitutional
perspective. Cf.
Cleburne v.
Cleburne Living Center,
Inc., 473 U. S.
432, 439 (1985) (explaining that the Equal Protection Clause
"is essentially a direction that all persons similarly situated
should be treated alike");
F. S.
Royster Guano Co. v.
Virginia, 253
U. S. 412, 415 (1920). Section 1409(a)(4)'s provision of three
options for a father seeking to establish paternity-legitimation,
paternity oath, and court order of paternity-is designed to ensure
an acceptable documentation of paternity.
Petitioners argue that the requirement of § 1409(a)(1), that a
father provide clear and convincing evidence of parentage, is
sufficient to achieve the end of establishing paternity, given the
sophistication of modern DNA tests. Brief for Petitioners 21-24.
Section 1409(a)(1) does not actually mandate a DNA test, however.
The Constitution, moreover, does not require that Congress elect
one particular mechanism from among many possible methods of
establishing paternity, even if that mechanism arguably might be
the most scientifically advanced method. With respect to DNA
testing, the expense, reliability, and availability of such testing
in various parts of the world may have been of particular concern
to Congress. See
Miller, supra, at 437 (opinion of STEVENS,
J.). The requirement of § 1409(a)(4) represents a reasonable
conclusion by the legislature that the satisfaction of one of
several alternatives will suffice to establish the blood link
between father and child required as a predicate to the child's
acquisition of citizenship. Cf.
Lehr, supra,
64
at 267-268 (upholding New York statutory requirement that gave
mothers of children born out of wedlock notice of an adoption
hearing, but only extended that right to fathers who mailed a
postcard to a "putative fathers registry"). Given the proof of
motherhood that is inherent in birth itself, it is unremarkable
that Congress did not require the same affirmative steps of
mothers.
Finally, to require Congress to speak without reference to the
gender of the parent with regard to its objective of ensuring a
blood tie between parent and child would be to insist on a hollow
neutrality. As JUSTICE STEVENS pointed out in
Miller,
Congress could have required both mothers and fathers to prove
parenthood within 30 days or, for that matter, 18 years, of the
child's birth. 523 U. S., at 436. Given that the mother is always
present at birth, but that the father need not be, the facially
neutral rule would sometimes require fathers to take additional
affirmative steps which would not be required of mothers, whose
names will appear on the birth certificate as a result of their
presence at the birth, and who will have the benefit of witnesses
to the birth to call upon. The issue is not the use of gender
specific terms instead of neutral ones. Just as neutral terms can
mask discrimination that is unlawful, gender specific terms can
mark a permissible distinction. The equal protection question is
whether the distinction is lawful. Here, the use of gender specific
terms takes into account a biological difference between the
parents. The differential treatment is inherent in a sensible
statutory scheme, given the unique relationship of the mother to
the event of birth.
B 1
The second important governmental interest furthered in a
substantial manner by § 1409(a)(4) is the determination to ensure
that the child and the citizen parent have some demonstrated
opportunity or potential to develop not just a
65
relationship that is recognized, as a formal matter, by the law,
but one that consists of the real, everyday ties that provide a
connection between child and citizen parent and, in turn, the
United States. See id., at 438-440 (opinion of STEVENS, J.). In the
case of a citizen mother and a child born overseas, the opportunity
for a meaningful relationship between citizen parent and child
inheres in the very event of birth, an event so often critical to
our constitutional and statutory understandings of citizenship. The
mother knows that the child is in being and is hers and has an
initial point of contact with him. There is at least an opportunity
for mother and child to develop a real, meaningful
relationship.
The same opportunity does not result from the event of birth, as
a matter of biological inevitability, in the case of the unwed
father. Given the 9-month interval between conception and birth, it
is not always certain that a father will know that a child was
conceived, nor is it always clear that even the mother will be sure
of the father's identity. This fact takes on particular
significance in the case of a child born overseas and out of
wedlock. One concern in this context has always been with young
people, men for the most part, who are on duty with the Armed
Forces in foreign countries. See Department of Defense, Selected
Manpower Statistics 48, 74 (1999) (reporting that in 1969, the year
in which Nguyen was born, there were 3,458,072 active duty military
personnel, 39,506 of whom were female); Department of Defense,
Selected Manpower Statistics 29 (1970) (noting that 1,041,094
military personnel were stationed in foreign countries in 1969);
Department of Defense, Selected Manpower Statistics 49, 76 (1999)
(reporting that in 1999 there were 1,385,703 active duty military
personnel, 200,287 of whom were female); id., at 33 (noting that
252,763 military personnel were stationed in foreign countries in
1999).
When we turn to the conditions which prevail today, we find that
the passage of time has produced additional and even more
substantial grounds to justify the statutory dis-
66
tinction. The ease of travel and the willingness of Americans to
visit foreign countries have resulted in numbers of trips abroad
that must be of real concern when we contemplate the prospect of
accepting petitioners' argument, which would mandate, contrary to
Congress' wishes, citizenship by male parentage subject to no
condition save the father's previous length of residence in this
country. In 1999 alone, Americans made almost 25 million trips
abroad, excluding trips to Canada and Mexico. See U. S. Dept. of
Commerce, 1999 Profile of U. S. Travelers to Overseas Destinations
1 (Oct. 2000). Visits to Canada and Mexico add to this figure
almost 34 million additional visits. See U. S. Dept. of Commerce,
U. S. Resident Travel to Overseas Countries, Historical Visitation
1989-1999, p. 1 (Oct. 2000). And the average American overseas
traveler spent 15.1 nights out of the United States in 1999. 1999
Profile of U. S. Travelers to Overseas Destinations,
supra,
at 4.
Principles of equal protection do not require Congress to ignore
this reality. To the contrary, these facts demonstrate the critical
importance of the Government's interest in ensuring some
opportunity for a tie between citizen father and foreign born child
which is a reasonable substitute for the opportunity manifest
between mother and child at the time of birth. Indeed, especially
in light of the number of Americans who take short sojourns abroad,
the prospect that a father might not even know of the conception is
a realistic possibility. See
Miller, supra, at 439 (opinion
of STEVENS, J.). Even if a father knows of the fact of conception,
moreover, it does not follow that he will be present at the birth
of the child. Thus, unlike the case of the mother, there is no
assurance that the father and his biological child will ever meet.
Without an initial point of contact with the child by a father who
knows the child is his own, there is no opportunity for father and
child to begin a relationship. Section 1409 takes the unremarkable
step of ensuring that such an opportunity, inherent in the event of
birth as to the
67
mother-child relationship, exists between father and child
before citizenship is conferred upon the latter.
The importance of the governmental interest at issue here is too
profound to be satisfied merely by conducting a DNA test. The fact
of paternity can be established even without the father's
knowledge, not to say his presence. Paternity can be established by
taking DNA samples even from a few strands of hair, years after the
birth. See Federal Judicial Center, Reference Manual on Scientific
Evidence 497 (2d ed. 2000). Yet scientific proof of biological
paternity does nothing, by itself, to ensure contact between father
and child during the child's minority.
Congress is well within its authority in refusing, absent proof
of at least the opportunity for the development of a relationship
between citizen parent and child, to commit this country to
embracing a child as a citizen entitled as of birth to the full
protection of the United States, to the absolute right to enter its
borders, and to full participation in the political process. If
citizenship is to be conferred by the unwitting means petitioners
urge, so that its acquisition abroad bears little relation to the
realities of the child's own ties and allegiances, it is for
Congress, not this Court, to make that determination. Congress has
not taken that path but has instead chosen, by means of § 1409, to
ensure in the case of father and child the opportunity for a
relationship to develop, an opportunity which the event of birth
itself provides for the mother and child. It should be
unobjectionable for Congress to require some evidence of a minimal
opportunity for the development of a relationship with the child in
terms the male can fulfill.
While the INS' brief contains statements indicating the
governmental interest we here describe, see Brief for Respondent
38, 41, it suggests other interests as well. Statements from the
INS' brief are not conclusive as to the objects of the statute,
however, as we are concerned with the objectives of Congress, not
those of the INS. We ascertain the
68
purpose of a statute by drawing logical conclusions from its
text, structure, and operation.
Petitioners and their
amici argue in addition that,
rather than fulfilling an important governmental interest, § 1409
merely embodies a gender-based stereotype. Although the above
discussion should illustrate that, contrary to petitioners'
assertions, § 1409 addresses an undeniable difference in the
circumstance of the parents at the time a child is born, it should
be noted, furthermore, that the difference does not result from
some stereotype, defined as a frame of mind resulting from
irrational or uncritical analysis. There is nothing irrational or
improper in the recognition that at the moment of birth-a critical
event in the statutory scheme and in the whole tradition of
citizenship law-the mother's knowledge of the child and the fact of
parenthood have been established in a way not guaranteed in the
case of the unwed father. This is not a stereotype. See
Virginia, 518 U. S., at 533 ("The heightened review standard
our precedent establishes does not make sex a proscribed
classification .... Physical differences between men and women ...
are enduring").
2
Having concluded that facilitation of a relationship between
parent and child is an important governmental interest, the
question remains whether the means Congress chose to further its
objective-the imposition of certain additional requirements upon an
unwed father-substantially relate to that end. Under this test, the
means Congress adopted must be sustained.
First, it should be unsurprising that Congress decided to
require that an opportunity for a parent-child relationship occur
during the formative years of the child's minority. In furtherance
of the desire to ensure some tie between this country and one who
seeks citizenship, various other statutory provisions concerning
citizenship and naturalization require some act linking the child
to the United States to
69
occur before the child reaches 18 years of age. See,
e.
g.,
8 U. S. C. § 1431 (child born abroad to one citizen
parent and one noncitizen parent shall become a citizen if,
inter alia, the noncitizen parent is naturalized before the
child reaches 18 years of age and the child begins to reside in the
United States before he or she turns 18); § 1432 (imposing same
conditions in the case of a child born abroad to two alien parents
who are naturalized).
Second, petitioners argue that § 1409(a)(4) is not
effective.
In particular, petitioners assert that, although a mother will
know of her child's birth, "knowledge that one is a parent, no
matter how it is acquired, does not guarantee a relationship with
one's child." Brief for Petitioners 16. They thus maintain that the
imposition of the additional requirements of § 1409(a)(4) only on
the children of citizen fathers must reflect a stereotype that
women are more likely than men to actually establish a relationship
with their children.
Id., at 17.
This line of argument misconceives the nature of both the
governmental interest at issue and the manner in which we examine
statutes alleged to violate equal protection. As to the former,
Congress would of course be entitled to advance the interest of
ensuring an actual, meaningful relationship in every case before
citizenship is conferred. Or Congress could excuse compliance with
the formal requirements when an actual father-child relationship is
proved. It did neither here, perhaps because of the subjectivity,
intrusiveness, and difficulties of proof that might attend an
inquiry into any particular bond or tie. Instead, Congress enacted
an easily administered scheme to promote the different but still
substantial interest of ensuring at least an opportunity for a
parent-child relationship to develop. Petitioners' argument
confuses the means and ends of the equal protection inquiry; §
1409(a)(4) should not be invalidated because Congress elected to
advance an interest that is less demanding to satisfy than some
other alternative.
70
Even if one conceives of the interest Congress pursues as the
establishment of a real, practical relationship of considerable
substance between parent and child in every case, as opposed simply
to ensuring the potential for the relationship to begin,
petitioners' misconception of the nature of the equal protection
inquiry is fatal to their argument. A statute meets the equal
protection standard we here apply so long as it is '"
"substantially related to the achievement of"'" the governmental
objective in question.
Virginia, supra, at 533 (quoting
Hogan, 458 U. S., at 724, in turn quoting
Wengler,
446 U. S., at 150). It is almost axiomatic that a policy which
seeks to foster the opportunity for meaningful parent-child bonds
to develop has a close and substantial bearing on the governmental
interest in the actual formation of that bond. None of our
gender-based classification equal protection cases have required
that the statute under consideration must be capable of achieving
its ultimate objective in every instance. In this difficult context
of conferring citizenship on vast numbers of persons, the means
adopted by Congress are in substantial furtherance of important
governmental objectives. The fit between the means and the
important end is "exceedingly persuasive." See
Virginia,
supra, at 533. We have explained that an "exceedingly
persuasive justification" is established "by showing at least that
the classification serves 'important governmental objectives and
that the discriminatory means employed' are 'substantially related
to the achievement of those objectives.'"
Hogan, supra, at
724 (citations omitted). Section 1409 meets this standard.
C
In analyzing § 1409(a)(4), we are mindful that the obligation it
imposes with respect to the acquisition of citizenship by the child
of a citizen father is minimal. This circumstance shows that
Congress has not erected inordinate and unnecessary hurdles to the
conferral of citizenship on the
71
children of citizen fathers in furthering its important
objectives. Only the least onerous of the three options provided
for in § 1409(a)(4) must be satisfied. If the child has been
legitimated under the law of the relevant jurisdiction, that will
be the end of the matter. See § 1409(a)(4)(A). In the alternative,
a father who has not legitimated his child by formal means need
only make a written acknowledgment of paternity under oath in order
to transmit citizenship to his child, hardly a substantial burden.
See § 1409(a)(4)(B). Or, the father could choose to obtain a court
order of paternity. See § 1409(a)(4)(C). The statute can be
satisfied on the day of birth, or the next day, or for the next 18
years. In this case, the unfortunate, even tragic, circumstance is
that Boulais did not pursue, or perhaps did not know of, these
simple steps and alternatives. Any omission, however, does not
nullify the statutory scheme.
Section 1409(a), moreover, is not the sole means by which the
child of a citizen father can attain citizenship. An individual who
fails to comply with § 1409(a), but who has substantial ties to the
United States, can seek citizenship in his or her own right, rather
than via reliance on ties to a citizen parent. See,
e. g., 8
U. S. C. §§ 1423, 1427. This option now may be foreclosed to
Nguyen, but any bar is due to the serious nature of his criminal
offenses, not to an equal protection denial or to any supposed
rigidity or harshness in the citizenship laws.
IV
The statutory scheme's satisfaction of the equal protection
scrutiny we apply to gender-based classifications constitutes a
sufficient basis for upholding it. It should be noted, however,
that, even were we to conclude that the statute did not meet this
standard of review, petitioners would face additional obstacles
before they could prevail.
The INS urges that, irrespective of whether § 1409(a) is
constitutional, the Court cannot grant the relief petitioners
request: the conferral of citizenship on terms other than
72
those specified by Congress. There may well be "potential
problems with fashioning a remedy" were we to find the statute
unconstitutional. See
Miller, 523 U. S., at 451 (O'CONNOR,
J., concurring in judgment); cf. id., at 445, n. 26 (opinion of
STEVENS, J.) (declining to address the question whether the Court
could confer the sought-after remedy). Two Members of to day's
majority said in
Miller that this argument was dispositive.
See id., at 452-459 (SCALIA, J., joined by THOMAS, J., concurring
in judgment). Petitioners ask us to invalidate and sever §§
1409(a)(3) and (a)(4), but it must be remembered that severance is
based on the assumption that Congress would have intended the
result. See id., at 457 (SCALIA, J., concurring in judgment)
(citing
New York v.
United States, 505 U. S. 144 (1992)). In
this regard, it is significant that, although the Immigration and
Nationality Act contains a general severability provision, Congress
expressly provided with respect to the very subchapter of the
United States Code at issue and in a provision entitled "Sole
procedure" that "[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); see
also
Miller, supra, at 457-458 (SCALIA, J., concurring in
judgment). Section 1421(d) refers to naturalization, which in turn
is defined as "conferring of nationality of a state upon a person
after birth." 8 U. S. C. § 1l01(a)(23). Citizenship under § 1409(a)
is retroactive to the date of birth, but it is a naturalization
under § 1421(d) nevertheless. The conditions specified by § 1409(a)
for conferral of citizenship, as a matter of definition, must take
place after the child is born, in some instances taking as long as
18 years. Section 1409(a), then, is subject to the limitation
imposed by § 1421(d).
In light of our holding that there is no equal protection
violation, we need not rely on this argument. For the same reason,
we need not assess the implications of statements in our earlier
cases regarding the wide deference afforded to
73
Congress in the exercise of its immigration and naturalization
power. See,
e. g., Fiallo v.
Bell, 430 U. S. 787, 792-793,
and n. 4 (1977) (quoting
Galvan v.
Press, 347 U. S. 522, 531
(1954)); 430 u. S., at 792 (quoting
Oceanic Steam Nav. Co.
v.
Stranahan, 214 U. S. 320, 339
(1909)). These arguments would have to be considered, however, were
it to be determined that § 1409 did not withstand conventional
equal protection scrutiny.
V
To fail to acknowledge even our most basic biological
differences-such as the fact that a mother must be present at birth
but the father need not be-risks making the guarantee of equal
protection superficial, and so disserving it. Mechanistic
classification of all our differences as stereotypes would operate
to obscure those misconceptions and prejudices that are real. The
distinction embodied in the statutory scheme here at issue is not
marked by misconception and prejudice, nor does it show disrespect
for either class. The difference between men and women in relation
to the birth process is a real one, and the principle of equal
protection does not forbid Congress to address the problem at hand
in a manner specific to each gender.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I remain of the view that the Court lacks power to provide
relief of the sort requested in this suit-namely, conferral of
citizenship on a basis other than that prescribed by Congress. See
Miller v.
Albright, 523 U. S. 420, 452 (1998)
(SCALIA, J., concurring in judgment). A majority of the Justices in
Miller having concluded otherwise, see
id., at 423
(opinion of STEVENS, J., joined by REHNQUIST, C. J.); id., at 460
(GINSBURG, J., joined by SOUTER and BREYER, JJ., dissenting); id.,
at 471 (BREYER, J., joined by SOUTER and
74
GINSBURG, JJ., dissenting); and a majority of the Court today
proceeding on the same assumption; I think it appropriate for me to
reach the merits of petitioners' equal protection claims. I join
the opinion of the Court.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER, JUSTICE GINSBURG,
and JUSTICE BREYER join, dissenting.
In a long line of cases spanning nearly three decades, this
Court has applied heightened scrutiny to legislative
classifications based on sex. The Court today confronts another
statute that classifies individuals on the basis of their sex.
While the Court invokes heightened scrutiny, the manner in which it
explains and applies this standard is a stranger to our precedents.
Because the Immigration and N aturalization Service (INS) has not
shown an exceedingly persuasive justification for the sex-based
classification embodied in 8 U. S. C. § 1409(a)(4)-i.
e.,
because it has failed to establish at least that the classification
substantially relates to the achievement of important governmental
objectives-I would reverse the judgment of the Court of
Appeals.
I
Sex-based statutes, even when accurately reflecting the way most
men or women behave, deny individuals opportunity. Such
generalizations must be viewed not in isolation, but in the context
of our Nation's "'long and unfortunate history of sex
discrimination.'" J.
E. B. v.
Alabama ex rel. T. B.,
511 U. S. 127,
136 (1994) (quoting
Frontiero v.
Richardson, 411 U. S. 677, 684 (1973)
(plurality opinion)). Sex-based generalizations both reflect and
reinforce "fixed notions concerning the roles and abilities of
males and females."
Mississippi Univ. for Women v.
Hogan, 458 U.
S. 718, 725 (1982).
For these reasons, a party who seeks to defend a statute that
classifies individuals on the basis of sex "must carry the burden
of showing an 'exceedingly persuasive justification' for the
classification."
Id., at 724 (quoting
Kirchberg
v.
75
Feenstra, 450 U. S. 455, 461
(1981)); see also
United States v.
Virginia, 518 U. S. 515, 531
(1996). The defender of the classification meets this burden "only
by showing at least that the classification serves 'important
governmental objectives and that the discriminatory means employed'
are 'substantially related to the achievement of those
objectives.'''
Mississippi Univ. for Women, supra, at 724
(quoting
Wengler v.
Druggists Mut. Ins. Co., 446 U. S. 142, 150
(1980)); see also
Virginia, 518 U. S., at 533.
Our cases provide significant guidance concerning the meaning of
this standard and how a reviewing court is to apply it. This
Court's instruction concerning the application of heightened
scrutiny to sex-based classifications stands in stark contrast to
our elucidation of the rudiments of rational basis review. To begin
with, under heightened scrutiny, "[t]he burden of justification is
demanding and it rests entirely on [the party defending the
classification]."
Ibid. Under rational basis scrutiny, by
contrast, the defender of the classification "has no obligation to
produce evidence to sustain the rationality of a statutory
classification."
Heller v.
Doe, 509 U. S. 312, 320
(1993). Instead, "[t]he burden is on the one attacking the
legislative arrangement to negative every conceivable basis which
might support it, whether or not the basis has a foundation in the
record."
Id., at 320321 (internal quotation marks and
citation omitted).
Further, a justification that sustains a sex-based
classification "must be genuine, not hypothesized or invented
post hoc in response to litigation."
Virginia, supra,
at 533. "[T]he mere recitation of a benign, compensatory purpose is
not an automatic shield which protects against any inquiry into the
actual purposes underlying a statutory scheme."
Weinberger
v.
Wiesenfeld, 420 U. S. 636, 648
(1975). Under rational basis review, by contrast, it is
"'constitutionally irrelevant [what] reasoning in fact underlay the
legislative decision.'''
Railroad Retirement Bd. v.
Fritz, 449 U.
S. 166,
76
179 (1980) (quoting
Flemming v.
Nestor, 363 U. S. 603, 612
(1960)).
Heightened scrutiny does not countenance justifications that
"rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females."
Virginia,
supra, at 533. Rational basis review, by contrast, is much more
tolerant of the use of broad generalizations about different
classes of individuals, so long as the classification is not
arbitrary or irrational. See,
e. g., Kimel v.
Florida Bd.
of Regents, 528 U.
S. 62, 84 (2000);
Fritz, supra, at 177.
Moreover, overbroad sex-based generalizations are impermissible
even when they enjoy empirical support. See,
e. g., J.
E.
B., supra, at 139, n. 11;
Craig v.
Boren,
429 U. S. 190,
199 (1976);
Wiesenfeld, supra, at 645. Under rational basis
scrutiny, however, empirical support is not even necessary to
sustain a classification. See,
e. g., FCC v.
Beach
Communications, Inc., 508 U. S. 307, 315 (1993)
("[A] legislative choice is not subject to courtroom factfinding
and may be based on rational speculation unsupported by evidence or
empirical data").
The different burdens imposed by these equal protection
standards correspond to the different duties of a reviewing court
in applying each standard. The court's task in applying heightened
scrutiny to a sex-based classification is clear:
"Focusing on the differential treatment or denial of opportunity
for which relief is sought, the reviewing court must determine
whether the proffered justification is 'exceedingly persuasive.'''
Virginia, 518 U. S., at 532-533. In making this
determination, the court must inquire into the actual purposes of
the discrimination, for "a tenable justification must describe
actual state purposes, not rationalizations for actions in fact
differently grounded."
Id., at 535-536; see also
id.,
at 533;
Wiesenfeld, supra, at 648;
Califano v.
Goldfarb, 430
U. S. 199, 212-217 (1977) (plurality opinion); id., at 219-221
(STEVENS, J., concurring in judgment). The
77
rational basis standard, on the other hand, instructs that "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.'"
Heller,
supra, at 320 (quoting
Beach Communications, supra, at
313). This standard permits a court to hypothesize interests that
might support legislative distinctions, whereas heightened scrutiny
limits the realm of justification to demonstrable reality.
These different standards of equal protection review also set
different bars for the magnitude of the governmental interest that
justifies the statutory classification. Heightened scrutiny demands
that the governmental interest served by the classification be
"important," see,
e. g., Virginia, supra, at 533, whereas
rational basis scrutiny requires only that the end be "legitimate,"
see,
e. g., Nordlinger v.
Hahn, 505 U. S. 1, 10 (1992).
The most important difference between heightened scrutiny and
rational basis review, of course, is the required fit between the
means employed and the ends served. Under heightened scrutiny, the
discriminatory means must be "substantially related" to an actual
and important governmental interest. See,
e. g., Virginia,
supra, at 533. Under rational basis scrutiny, the means need
only be "rationally related" to a conceivable and legitimate state
end. See,
e. g.,
Cleburne v.
Cleburne Living
Center, Inc., 473
U. S. 432, 440 (1985).
The fact that other means are better suited to the achievement
of governmental ends therefore is of no moment under rational basis
review. See,
e. g., Vance v.
Bradley, 440 U. S. 93, 103, n. 20
(1979) ("Even were it not irrelevant to [rational basis review]
that other alternatives might achieve approximately the same
results ... ");
Massachusetts Bd. of Retirement v.
Murgia, 427 U.
S. 307, 316 (1976)
(per curiam) ("[T]he State perhaps
has not chosen the best means to accomplish this purpose. But where
rationality is the test, a
78
State 'does not violate the Equal Protection Clause merely
because the classifications made by its laws are imperfect'"
(quoting
Dandridge v.
Williams, 397 U. S. 471, 485
(1970))). But because we require a much tighter fit between means
and ends under heightened scrutiny, the availability of sex-neutral
alternatives to a sex-based classification is often highly
probative of the validity of the classification. See,
e. g.,
Wengler, 446 U. S., at 151 (invalidating a sex-based
classification where a sex-neutral approach would completely serve
the needs of both classes);
Orr v.
Orr, 440 U. S. 268,281 (1979)
(finding "no reason, therefore, to use sex as a proxy for need"
where the alimony statute already provided for individualized
hearings that took financial circumstances into account);
Wiesenfeld, 420 U. S., at 653 (finding a gender-based
distinction to be "gratuitous" where "without it, the statutory
scheme would only provide benefits to those men who are in fact
similarly situated to the women the statute aids").
II
The Court recites the governing substantive standard for
heightened scrutiny of sex-based classifications, see
ante,
at 60-61, 70, but departs from the guidance of our precedents
concerning such classifications in several ways. In the first
sentence of its equal protection analysis, the majority glosses
over the crucial matter of the burden of justification.
Ante, at 60 ("For a gender-based classification to withstand
equal protection scrutiny, it must be established ... "); see also
ante, at 70. In other circumstances, the Court's use of an
impersonal construction might represent a mere elision of what we
have stated expressly in our prior cases. Here, however, the
elision presages some of the larger failings of the opinion.
For example, the majority hypothesizes about the interests
served by the statute and fails adequately to inquire into the
actual purposes of § 1409(a)(4). The Court also does not always
explain adequately the importance
79
of the interests that it claims to be served by the provision.
The majority also fails carefully to consider whether the sex-based
classification is being used impermissibly "as a 'proxy for other,
more germane bases of classification,'"
Mississippi Univ. for
Women, 458 U. S., at 726 (quoting
Craig, 429 U. S., at
198), and instead casually dismisses the relevance of available
sex-neutral alternatives. And, contrary to the majority's
conclusion, the fit between the means and ends of § 1409(a)(4) is
far too attenuated for the provision to survive heightened
scrutiny. In all, the majority opinion represents far less than the
rigorous application of heightened scrutiny that our precedents
require.
A
According to the Court, "[t]he first governmental interest to be
served is the importance of assuring that a biological parent-child
relationship exists."
Ante, at 62. The majority does not
elaborate on the importance of this interest, which presumably lies
in preventing fraudulent conveyances of citizenship. Nor does the
majority demonstrate that this is one of the actual purposes of §
1409(a)(4). Assuming that Congress actually had this purpose in
mind in enacting parts of § 1409(a)(4), cf.
Miller v.
Albright, 523
U. S. 420, 435-436 (1998) (opinion of STEVENS, J.), the INS
does not appear to rely on this interest in its effort to sustain §
1409(a)(4)'s sexbased classification. Cf. Brief for Respondent 11
(claiming that § 1409 serves "at least two important interests:
first, ensuring that children who are born abroad out of wedlock
have, during their minority, attained a sufficiently recognized or
formal relationship to their United States citizen parent-and thus
to the United States-to justify the conferral of citizenship upon
them; and second, preventing such children from being stateless").
In light of the reviewing court's duty to "determine whether the
proffered justification is 'exceedingly persuasive,'"
Virginia, 518 U. S., at 533, this disparity between the
majority's defense of the statute
80
and the INS' proffered justifications is striking, to say the
least.
The gravest defect in the Court's reliance on this interest,
however, is the insufficiency of the fit between § 1409(a)(4)'s
discriminatory means and the asserted end. Section 1409(c) imposes
no particular burden of proof on mothers wishing to convey
citizenship to their children. By contrast, § 1409(a)(1), which
petitioners do not challenge before this Court, requires that "a
blood relationship between the person and the father [be]
established by clear and convincing evidence." Atop § 1409(a)(1), §
1409(a)(4) requires legitimation, an acknowledgment of paternity in
writing under oath, or an adjudication of paternity before the
child reaches the age of 18. It is difficult to see what §
1409(a)(4) accomplishes in furtherance of "assuring that a
biological parent-child relationship exists,"
ante, at 62,
that § 1409(a)(1) does not achieve on its own. The virtual
certainty of a biological link that modern DNA testing affords
reinforces the sufficiency of § 1409(a)(1). See
Miller,
supra, at 484-485 (BREYER, J., dissenting).
It is also difficult to see how § 1409(a)(4)'s limitation of the
time allowed for obtaining proof of paternity substantially
furthers the assurance of a blood relationship. Modern DNA testing,
in addition to providing accuracy unmatched by other methods of
establishing a biological link, essentially negates the evidentiary
significance of the passage of time. Moreover, the application of §
1409(a)(1)'s "clear and convincing evidence" requirement can
account for any effect that the passage of time has on the quality
of the evidence.
The Court criticizes petitioners' reliance on the availability
and sophistication of modern DNA tests,
ante, at 63, but
appears to misconceive the relevance of such tests. No one argues
that § 1409(a)(1) mandates a DNA test. Legitimation or an
adjudication of paternity, see §§ 1409(a)(4)(A), (C), may well
satisfy the "clear and convincing" standard of
81
§ 1409(a)(1). (Satisfaction of § 1409(a)(4) by a written
acknowledgment of paternity under oath, see § 1409(a)(4)(B), would
seem to do little, if anything, to advance the assurance of a blood
relationship, further stretching the means-end fit in this
context.) Likewise, petitioners' argument does not depend on the
idea that one particular method of establishing paternity is
constitutionally required. Petitioners' argument rests instead on
the fact that, if the goal is to obtain proof of paternity, the
existence of a statutory provision governing such proof, coupled
with the efficacy and availability of modern technology, is highly
relevant to the sufficiency of the tailoring between § 1409(a)(4)'s
sex-based classification and the asserted end. Because § 1409(a)(4)
adds little to the work that § 1409(a)(1) does on its own, it is
difficult to say that § 1409(a)(4) "substantially furthers" an
important governmental interest.
Kirchberg, 450 U. S., at
461.
The majority concedes that Congress could achieve the goal of
assuring a biological parent-child relationship in a sex-neutral
fashion, but then, in a surprising turn, dismisses the availability
of sex-neutral alternatives as irrelevant. As the Court suggests,
"Congress could have required both mothers and fathers to prove
parenthood within 30 days or, for that matter, 18 years, of the
child's birth."
Ante, at 64 (citing
Miller, supra, at
436 (opinion of STEVENS, J.)). Indeed, whether one conceives the
majority's asserted interest as assuring the existence of a
biological parent-child relationship,
ante, at 62, or as
ensuring acceptable documentation of that relationship,
ante, at 63, a number of sex-neutral arrangements-including
the one that the majority offerswould better serve that end. As the
majority seems implicitly to acknowledge at one point,
ante,
at 62, a mother will not always have formal legal documentation of
birth because a birth certificate may not issue or may subsequently
be lost. Conversely, a father's name may well appear on a birth
certificate. While it is doubtless true that a mother's blood
re-
82
lation to a child is uniquely "verifiable from the birth itself"
to those present at birth,
ibid., the majority has not shown
that a mother's birth relation is uniquely verifiable
by the
INS, much less that any greater verifiability warrants a sexbased,
rather than a sex-neutral, statute.
In our prior cases, the existence of comparable or superior
sex-neutral alternatives has been a powerful reason to reject a
sex-based classification. See
supra, at 78. The majority,
however, turns this principle on its head by denigrating as
"hollow" the very neutrality that the law requires.
Ante, at
64. While the majority trumpets the availability of superior
sex-neutral alternatives as confirmation of § 1409(a)(4)'s
validity, our precedents demonstrate that this fact is a decided
strike
against the law. Far from being "hollow," the
avoidance of gratuitous sex-based distinctions is the hallmark of
equal protection. Cf. J. E. B., 511 U. S., at 152-153 (KENNEDY, J.,
concurring in judgment) (" 'At the heart of the Constitution's
guarantee of equal protection lies the simple command that the
Government must treat citizens as individuals, not as simply
components of a racial [or] sexual ... class'" (quoting
Metro
Broadcasting, Inc. v.
FCC, 497 U. S. 547, 602 (1990)
(O'CONNOR, J., dissenting))).
The majority's acknowledgment of the availability of sexneutral
alternatives scarcely confirms the point that "[t]he differential
treatment is inherent in a sensible statutory scheme."
Ante,
at 64. The discussion instead demonstrates that, at most,
differential
impact will result from the fact that
"[f]athers and mothers are not similarly situated with regard to
the proof of biological parenthood."
Ante, at 63. In other
words, it will likely be easier for mothers to satisfy a
sex-neutral proof of parentage requirement. But facially neutral
laws that have a disparate impact are a different animal for
purposes of constitutional analysis than laws that specifically
provide for disparate treatment. We have long held that the
differential impact of a facially neutral law does not trigger
heightened scrutiny, see,
e. g.,
83
Washington v.
Davis, 426 U. S. 229 (1976),
whereas we apply heightened scrutiny to laws that facially classify
individuals on the basis of their sex. See,
e. g., United
States v.
Virginia, 518 U. S. 515 (1996); see
also J.
E. B., supra, at 152 (KENNEDY, J., concurring in
judgment) ("[O]ur case law does reveal a strong presumption that
gender classifications are invalid");
Parham v.
Hughes, 441 U.
S. 347, 351 (1979) (plurality opinion) ("Not all legislation,
however, is entitled to the same presumption of validity .... [T]he
presumption of statutory validity may also be undermined when a
State has enacted legislation creating classes based upon certain
other immutable human attributes" (citing,
inter alia, Reed
v.
Reed, 404 U.
S. 71 (1971))).
If rational basis scrutiny were appropriate in this case, then
the claim that "[t]he Constitution ... does not require that
Congress elect one particular mechanism from among many possible
methods of establishing paternity,"
ante, at 63, would have
much greater force. So too would the claim that "[t]he requirement
of § 1409(a)(4) represents a reasonable conclusion .... "
Ibid. But fidelity to the Constitution's pledge of equal
protection demands more when a facially sex-based classification is
at issue. This is not because we sit in judgment of the wisdom of
laws in one instance but not the other, cf.
Beach
Communications, 508 U. S., at 313, but rather because of the
potential for "injury ... to personal dignity," J.
E. B.,
supra, at 153 (KENNEDY, J., concurring in judgment), that
inheres in or accompanies so many sex-based classifications.
B
The Court states that "[t]he second important governmental
interest furthered in a substantial manner by § 1409(a)(4) is the
determination to ensure that the child and the citizen parent have
some demonstrated opportunity or potential to develop not just a
relationship that is recognized, as a formal matter, by the law,
but one that consists of the real,
84
everyday ties that provide a connection between child and
citizen parent and, in turn, the United States."
Ante, at
64-65. The Court again fails to demonstrate that this was Congress'
actual purpose in enacting § 1409(a)(4). The majority's focus on
"some demonstrated opportunity or potential to develop ... real,
everyday ties" in fact appears to be the type of hypothesized
rationale that is insufficient under heightened scrutiny. See
supra, at 75-77.
The INS asserts the governmental interest of "ensuring that
children who are born abroad out of wedlock have, during their
minority, attained a sufficiently recognized or formal relationship
to their United States citizen parentand thus to the United
States-to justify the conferral of citizenship upon them." Brief
for Respondent 11. The majority's asserted end, at best, is a
simultaneously watereddown and beefed-up version of this interest
asserted by the INS. The majority's rendition is weaker than the
INS' in that it emphasizes the "opportunity or potential to
develop" a relationship rather than the actual relationship about
which the INS claims Congress was concerned. The majority's version
is also stronger in that it goes past the formal relationship
apparently desired by the INS to "real, everyday ties."
Assuming, as the majority does, that Congress was actually
concerned about ensuring a "demonstrated opportunity" for a
relationship, it is questionable whether such an opportunity
qualifies as an "important" governmental interest apart from the
existence of an actual relationship. By focusing on "opportunity"
rather than reality, the majority presumably improves the chances
of a sufficient means-end fit. But in doing so, it dilutes
significantly the weight of the interest. It is difficult to see
how, in this citizenship-conferral context, anyone profits from a
"demonstrated opportunity" for a relationship in the absence of the
fruition of an actual tie. Children who have an "opportunity" for
such a tie with a parent, of course, may never develop an actual
rela-
85
tionship with that parent. See
Miller, 523 U. S., at 440
(opinion of STEVENS, J.). If a child grows up in a foreign country
without any postbirth contact with the citizen parent, then the
child's never-realized "opportunity" for a relationship with the
citizen seems singularly irrelevant to the appropriateness of
granting citizenship to that child. Likewise, where there is an
actual relationship, it is the actual relationship that does all
the work in rendering appropriate a grant of citizenship,
regardless of when and how the opportunity for that relationship
arose.
Accepting for the moment the majority's focus on "opportunity,"
the attempt to justify § 1409(a)(4) in these terms is still
deficient. Even if it is important "to require that an opportunity
for a parent-child relationship occur during the formative years of
the child's minority,"
ante, at 68, it is difficult to see
how the requirement that
proof of such opportunity be
obtained before the child turns 18 substantially furthers the
asserted interest. As the facts of this case demonstrate,
ante, at 57, it is entirely possible that a father and child
will have the opportunity to develop a relationship and in fact
will develop a relationship without obtaining the proof of the
opportunity during the child's minority. After his parents'
relationship had ended, petitioner Nguyen lived with the family of
his father's new girlfriend. In 1975, before his sixth birthday,
Nguyen came to the United States, where he was reared by his
father, petitioner Boulais. In 1997, a DNA test showed a 99.98%
probability of paternity, and, in 1998, Boulais obtained an order
of parentage from a Texas court.
Further underscoring the gap between the discriminatory means
and the asserted end is the possibility that "a child might obtain
an adjudication of paternity 'absent any affirmative act by the
father, and perhaps even over his express objection.'''
Miller, 523 U. S., at 486 (BREYER, J., dissenting) (quoting
id., at 434 (opinion of STEVENS, J.)). The fact that the means-end
fit can break down so readily
86
in theory, and not just in practice, is hardly characteristic of
a "substantial" means-end relationship.
Moreover, available sex-neutral alternatives would at least
replicate, and could easily exceed, whatever fit there is between §
1409(a)(4)'s discriminatory means and the majority's asserted end.
According to the Court, § 1409(a)(4) is designed to ensure that
fathers and children have the same "opportunity which the event of
birth itself provides for the mother and child."
Ante, at
67. Even assuming that this is so, Congress could simply substitute
for § 1409(a)(4) a requirement that the parent be present at birth
or have knowledge of birth. Cf.
Miller, supra, at 487
(BREYER, J., dissenting). Congress could at least allow proof of
such presence or knowledge to be one way of demonstrating an
opportunity for a relationship. Under the present law, the statute
on its face accords different treatment to a mother who is by
nature present at birth and a father who is by choice present at
birth even though those two individuals are similarly situated with
respect to the "opportunity" for a relationship. The mother can
transmit her citizenship at birth, but the father cannot do so in
the absence of at least one other affirmative act. The different
statutory treatment is solely on account of the sex of the
similarly situated individuals. This type of treatment is patently
inconsistent with the promise of equal protection of the laws. See,
e. g., Reed, 404 U. S., at 77 ("By providing dissimilar
treatment for men and women who are thus similarly situated, the
challenged section violates the Equal Protection Clause").
Indeed, the idea that a mother's presence at birth supplies
adequate assurance of an opportunity to develop a relationship
while a father's presence at birth does not would appear to rest
only on an overbroad sex-based generalization. A mother may not
have an opportunity for a relationship if the child is removed from
his or her mother on account of alleged abuse or neglect, or if the
child and mother are separated by tragedy, such as disaster or
war,
87
of the sort apparently present in this case. There is no reason,
other than stereotype, to say that fathers who are present at birth
lack an opportunity for a relationship on similar terms. The
"[p]hysical differences between men and women,"
Virginia,
518 U. S., at 533, therefore do not justify § 1409(a)(4)'s
discrimination.
The majority later ratchets up the interest, for the sake of
argument, to "the establishment of a real, practical relationship
of considerable substance between parent and child in every case,
as opposed simply to ensuring the potential for the relationship to
begin."
Ante, at 70. But the majority then dismisses the
distinction between opportunity and reality as immaterial to the
inquiry in this case.
Ibid. The majority rests its analysis
of the means-end fit largely on the following proposition: "It is
almost axiomatic that a policy which seeks to foster the
opportunity for meaningful parent-child bonds to develop has a
close and substantial bearing on the governmental interest in the
actual formation of that bond."
Ibid. A bare assertion of
what is allegedly "almost axiomatic," however, is no substitute for
the "demanding" burden of justification borne by the defender of
the classification.
Virginia, supra, at 533.
Moreover, the Court's reasoning hardly conforms to the tailoring
requirement of heightened scrutiny. The fact that a discriminatory
policy embodies the good intention of "seek[ing] to foster" the
opportunity for something beneficial to happen is of little
relevance in itself to whether the policy substantially furthers
the desired occurrence. Whether the classification indeed "has a
close and substantial bearing" on the actual occurrence of the
preferred result depends on facts and circumstances and must be
proved by the classification's defender. Far from being a virtual
axiom, the relationship between the intent to foster an opportunity
and the fruition of the desired effect is merely a contingent
proposition. The majority's sweeping claim is no surrogate
88
for the careful application of heightened scrutiny to a
particular classification.
The question that then remains is the sufficiency of the fit
between § 1409(a)(4)'s discriminatory means and the goal of
"establish[ing] ... a real, practical relationship of considerable
substance."
Ante, at 70. If Congress wishes to advance this
end, it could easily do so by employing a sex-neutral
classification that is a far "more germane bas[i]s of
classification" than sex,
Craig, 429 U. S., at 198. For
example, Congress could require some degree of regular contact
between the child and the citizen parent over a period of time. See
Miller, 523 U. S., at 470 (GINSBURG, J., dissenting).
The majority again raises this possibility of the use of
sex-neutral means only to dismiss it as irrelevant. The Court
admits that "Congress could excuse compliance with the formal
requirements when an actual father-child relationship is proved,"
but speculates that Congress did not do so "perhaps because of the
subjectivity, intrusiveness, and difficulties of proof that might
attend an inquiry into any particular bond or tie."
Ante, at
69. We have repeatedly rejected efforts to justify sex-based
classifications on the ground of administrative convenience. See,
e. g., Wengler, 446 U. S., at 152;
Frontiero, 411 U.
S., at 690-691. There is no reason to think that this is a case
where administrative convenience concerns are so powerful that they
would justify the sex-based discrimination, cf.
Wengler,
supra, at 152, especially where the use of sex as a proxy is so
ill fit to the purported ends as it is here. And to the extent
Congress might seek simply to ensure an "opportunity" for a
relationship, little administrative inconvenience would seem to
accompany a sex-neutral requirement of presence at birth, knowledge
of birth, or contact between parent and child prior to a certain
age.
The claim that § 1409(a)(4) substantially relates to the
achievement of the goal of a "real, practical relationship"
89
thus finds support not in biological differences but instead in
a stereotype-i.
e., "the generalization that mothers are
significantly more likely than fathers ... to develop caring
relationships with their children."
Miller, supra, at 482483
(BREYER, J., dissenting). Such a claim relies on "the very
stereotype the law condemns," J. E. B., 511 U. S., at 138 (internal
quotation marks omitted), "lends credibility" to the
generalization,
Mississippi Univ. for Women, 458 U. S., at
730, and helps to convert that "assumption" into "a self-fulfilling
prophecy,"
ibid. See also J.
E. B., supra, at 140
("When state actors exercise peremptory challenges in reliance on
gender stereotypes, they ratify and reinforce prejudicial views of
the relative abilities of men and women"). Indeed, contrary to this
stereotype, Boulais has reared Nguyen, while Nguyen apparently has
lacked a relationship with his mother.
The majority apparently tries to avoid reliance on this
stereotype by characterizing the governmental interest as a
"demonstrated opportunity" for a relationship and attempting to
close the gap between opportunity and reality with a dubious claim
about what is "almost axiomatic." But the fact that one route is
wisely forgone does not mean that the other is plausibly taken. The
inescapable conclusion instead is that § 1409(a)(4) lacks an
exceedingly persuasive justification.
In denying petitioner's claim that § 1409(a)(4) rests on
stereotypes, the majority articulates a misshapen notion of
"stereotype" and its significance in our equal protection
jurisprudence. The majority asserts that a "stereotype" is "defined
as a frame of mind resulting from irrational or uncritical
analysis."
Ante, at 68. This Court has long recognized,
however, that an impermissible stereotype may enjoy empirical
support and thus be in a sense "rational." See,
e. g., J.
E. B., supra, at 139, n. 11 ("We have made abundantly clear
in past cases that gender classifications that rest on
impermissible stereotypes violate the Equal Protection
90
Clause, even when some statistical support can be conjured up
for the generalization");
Craig, 429 U. S., at 201
(invalidating a sex-based classification even though the evidence
supporting the distinction was "not trivial in a statistical
sense"); id., at 202 (noting that "prior cases have consistently
rejected the use of sex as a decisionmaking factor even though the
statutes in question certainly rested on far more predictive
empirical relationships than this");
Wiesenfeld, 420 U. S.,
at 645 (invalidating a sex-based classification even though the
underlying generalization was "not entirely without empirical
support"). Indeed, the stereotypes that underlie a sex-based
classification "may hold true for many, even most, individuals."
Miller, 523 U. S., at 460 (GINSBURG, J., dissenting). But in
numerous cases where a measure of truth has inhered in the
generalization, "the Court has rejected official actions that
classify unnecessarily and overbroadly by gender when more accurate
and impartial functional lines can be drawn."
Ibid.
Nor do stereotypes consist only of those overbroad
generalizations that the reviewing court considers to "show
disrespect" for a class,
ante, at 73. Cf.,
e. g., Craig,
supra, at 198-201. The hallmark of a stereotypical sex-based
classification under this Court's precedents is not whether the
classification is insulting, but whether it "relie[s] upon the
simplistic, outdated assumption that gender could be used as a
'proxy for other, more germane bases of classification.'"
Mississippi Univ. for Women, supra, at 726 (quoting
Craig, supra, at 198).
It is also important to note that, while our explanations of
many decisions invalidating sex-based classifications have pointed
to the problems of "stereotypes" and "overbroad generalizations,"
these explanations certainly do not mean that the burden is on the
challenger of the classification to prove legislative reliance on
such generalizations. Indeed, an arbitrary distinction between the
sexes may rely on no identifiable generalization at all but may
simply be a de-
91
nial of opportunity out of pure caprice. Such a distinction, of
course, would nonetheless be a classic equal protection violation.
The burden of proving that use of a sex-based classification
substantially relates to the achievement of an important
governmental interest remains unmistakably and entirely with the
classification's defender. See,
e. g.,
Virginia, 518
U. S., at 532-533.
C
The Court has also failed even to acknowledge the "volumes of
history" to which "[t]oday's skeptical scrutiny of official action
denying rights or opportunities based on sex responds."
Id.,
at 531. The history of sex discrimination in laws governing the
transmission of citizenship and with respect to parental
responsibilities for children born out of wedlock counsels at least
some circumspection in discerning legislative purposes in this
context. See generally
Miller, supra, at 460-468 (GINSBURG,
J., dissenting).
Section 1409 was first enacted as § 205 of the Nationality Act
of 1940, 54 Stat. 1139-1140. The 1940 Act had been proposed by the
President, forwarding a report by a specially convened Committee of
Advisors, including the Attorney General. The Committee explained
to Congress the rationale for § 205, whose sex-based classification
remains in effect today:
"[T]he Department of State has, at least since 1912, uniformly
held that an illegitimate child born abroad of an American mother
acquires at birth the nationality of the mother, in the absence of
legitimation or adjudication establishing the paternity of the
child. This ruling is based ... on the ground that the mother in
such case stands in the place of the father .... [U]nder American
law the mother has a right to custody and control of such a child
as against the putative father, and is bound to maintain it
as its natural guardian. This rule seems to be in accord
with the old Roman law and
92
with the laws of Spain and France." To Revise and Codify the
Nationality Laws of the United States, Hearings on H. R. 6127
before the House Committee on Immigration and Naturalization, 76th
Cong., 1st Sess., 431 (1945) (reprinting Message from the
President, N ationality Laws of the United States (1938)) (emphasis
added and internal quotation marks and citations omitted).
Section 1409(a)(4) is thus paradigmatic of a historic regime
that left women with responsibility, and freed men from
responsibility, for nonmarital children. Under this law, as one
advocate explained to Congress in a 1932 plea for a sex-neutral
citizenship law, "when it comes to the illegitimate child, which is
a great burden, then the mother is the only recognized parent, and
the father is put safely in the background." Naturalization and
Citizenship Status of Certain Children of Mothers Who Are Citizens
of the United States, Hearing on H. R. 5489 before the House
Committee on Immigration and Naturalization, 72d Cong., 1st Sess.,
3 (testimony of Burnita Shelton Matthews); see also id., at 5
(citizenship law "permit[s] [the father] to escape the burdens
incident to illegitimate parenthood"). Unlike § 1409(a)(4), our
States' child custody and support laws no longer assume that
mothers alone are "bound" to serve as "natural guardians" of
nonmarital children. See,
e. g., Ariz. Rev. Stat. Ann. §
25-501 (1999) (equal duties of support); cf. Cal. Civ. Code Ann. §
4600 (West 1972) (abolishing "tender years" doctrine). The
majority, however, rather than confronting the stereotypical notion
that mothers must care for these children and fathers may ignore
them, quietly condones the "very stereotype the law condemns," J.
E. B., 511 U. S., at 138 (internal quotation marks omitted).
Punctuating the disparity between the majority's and the INS'
accounts of the governmental interests at stake is the majority's
failure even to address the INS' second asserted rationale: that §
1409 prevents certain children from being stateless. Brief for
Respondent 11; see also id., at 17-18
93
(describing statelessness problem). The Court certainly has good
reason to reject this asserted rationale. Indeed, the INS hardly
even attempts to show how the statelessness concern justifies the
discriminatory means of § 1409(a)(4) in particular. The INS instead
undertakes a demonstration of how the statelessness concern
justifies § 1409(c)'s relaxed residency requirements for citizen
mothers. See id., at 1719, 42-43, 44, n. 23. But petitioners do not
challenge here the distinction between § 1401(g), which requires
that citizen fathers have previously resided in the United States
for five years, including at least two years after the age of 14,
and § 1409(c), which provides that a citizen mother need only have
resided in the United States for one year. The INS' proffered
justification of statelessness thus does nothing to buttress the
case for § 1409(a)(4).
The Court also makes a number of observations that tend, on the
whole, to detract and distract from the relevant equal protection
inquiry. For example, presumably referring to § 1409 in general,
the majority suggests that "the statute simply ensures equivalence
between two expectant mothers who are citizens abroad if one
chooses to reenter for the child's birth and the other chooses not
to return, or does not have the means to do so."
Ante, at
61. But even apart from the question whether this was one of
Congress' actual purposes (and the majority does not affirmatively
claim that it was), this equivalence is quite beside the point of
petitioners' constitutional challenge, which is directed at the
dissimilar treatment accorded to fathers and mothers.
The Court also states that the obligation imposed by §
1409(a)(4) is "minimal" and does not present "inordinate and
unnecessary hurdles" to the acquisition of citizenship by the
nonmarital child of a citizen father.
Ante, at 70. Even
assuming that the burden is minimal (and the question whether the
hurdle is "unnecessary" is quite different in kind from the
question whether it is burdensome), it is well settled that "the
'absence of an insurmountable barrier' will not
94
redeem an otherwise unconstitutionally discriminatory law."
Kirchberg, 450 U. S., at 461 (quoting
Trimble v.
Gordon, 430 U. S. 762, 774 (1977)).
Finally, while the recitation of statistics concerning military
personnel and overseas travel,
ante, at 65-66, highlights
the opportunities for United States citizens to interact with
citizens of foreign countries, it bears little on the question
whether § 1409(a)(4)'s
discriminatory means are a
permissible governmental response to those circumstances. Indeed,
the majority's discussion may itself simply reflect the stereotype
of male irresponsibility that is no more a basis for the validity
of the classification than are stereotypes about the "traditional"
behavior patterns of women.
It is, of course, true that the failure to recognize relevant
differences is out of line with the command of equal protection.
See
ante, at 73. But so too do we undermine the promise of
equal protection when we try to make our differences carry weight
they simply cannot bear. This promise informs the proper
application of heightened scrutiny to sex-based classifications and
demands our scrupulous adherence to that test.
III
The Court identifies two "additional obstacles" that petitioners
would face even were the Court to accept the conclusion that the
statute fails heightened scrutiny.
Ante, at 71. The first
question concerns "'potential problems with fashioning a remedy.'''
Ante, at 72 (quoting
Miller, 523 U. S., at 451
(O'CONNOR, J., concurring in judgment) (citing id., at 452-459
(SCALIA, J., concurring in judgment))). The second question
concerns "the implications of statements in our earlier cases
regarding the wide deference afforded to Congress in the exercise
of its immigration and naturalization power."
Ante, at
72-73. I believe that petitioners are able to surmount both of
these hurdles.
As to the matter of remedy, severance of § 1409(a)(4) would have
been appropriate had petitioners prevailed. Several
95
factors support this conclusion. The Immigration and N
ationality Act (INA) contains a general severability clause, which
provides: "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." We have concluded that this severability clause "is
unambiguous and gives rise to a presumption that Congress did not
intend the validity of the [INA] as a whole, or any part of the
[INA], to depend upon whether" anyone provision was
unconstitutional.
INS v.
Chadha, 462 U. S. 919, 932
(1983).
Title 8 U. S. C. § 1421(d), which states that "[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," has no effect on the operation of the INA's general
severability clause in this case. Section 1421(d) governs only
naturalization, which the statute defines as "the conferring of
nationality of a state upon a person after birth," § 1101(a)(23),
whereas §§ 1401(g) and 1409 deal with the transmission of
citizenship at birth, see § 1401 ("The following shall be nationals
and citizens of the United States at birth ... "). Further, unlike
the INA's general severability clause, § 1421(d) does not
specifically address the scenario where a particular provision is
held invalid. Indeed, the INS does not even rely on § 1421(d) in
its brief.
Nor does our decision in
INS v.
Pangilinan,
486 U. S. 875
(1988), preclude severance here. In
Pangilinan, this Court
held that courts lack equitable authority to order the
naturalization of persons who did not satisfy the statutory
requirements for naturalization.
Id., at 883-885.
Petitioners in the instant case, however, seek the exercise of no
such equitable power. Petitioners instead seek severance of the
offending provisions so that the statute, free of its
constitutional defect, can operate to determine whether
citizen-
96
ship was transmitted at birth. Cf.
Miller, supra, at
488-489 (BREYER, J., dissenting).
In addition to the severance clause, this Court has often
concluded that, in the absence of legislative direction
not
to sever the infirm provision, "extension, rather than
nullification," of a benefit is more faithful to the legislative
design.
Califano v.
Westcott, 443 U. S. 76, 89-90
(1979); see also
Weinberger v.
Wiesenfeld, 420 U. S. 636 (1975);
Frontiero, 411 U. S., at 691, n. 25. The choice of extension
over nullification also would have the virtue of avoiding injury to
parties who are not represented in the instant litigation. And
Congress, of course, remains free to redesign the statute in a
manner that comports with the Constitution.
As to the question of deference, the pivotal case is
Fiallo v.
Bell, 430 U. S. 787 (1977).
Fiallo, however, is readily distinguished.
Fiallo
involved constitutional challenges to various statutory
distinctions, including a classification based on the sex of a
United States citizen or lawful permanent resident, that determined
the availability of a special immigration preference to certain
aliens by virtue of their relationship with the citizen or lawful
permanent resident.
Id., at 788-792; see also
Miller,
supra, at 429 (opinion of STEVENS, J.). The Court, emphasizing
"the limited scope of judicial inquiry into immigration
legislation," 430 U. S., at 792, rejected the constitutional
challenges. The Court noted its repeated prior emphasis that" 'over
no conceivable subject is the legislative power of Congress more
complete than it is over' the admission of aliens."
Ibid.
(quoting
Oceanic Steam Nav. Co. v.
Stranahan,
214 U. S. 320,
339 (1909)).
The instant case is not about the admission of aliens but
instead concerns the logically prior question whether an individual
is a citizen in the first place. A predicate for application of the
deference commanded by
Fiallo is that the individuals
concerned be aliens. But whether that predicate obtains is the very
matter at issue in this case. Cf.
Miller,
97
523 U. S., at 433, n. 10 (opinion of STEVENS, J.) ("[T]he
Government now argues ... that an alien outside the territory of
the United States has no substantive rights cognizable under the
Fifth Amendment. Even if that is so, the question to be decided is
whether petitioner is such an alien or whether, as [petitioner]
claims, [petitioner] is a citizen. Thus, we must address the merits
to determine whether the predicate for this argument is accurate"
(internal quotation marks and citation omitted)). Because §§ 1401
and 1409 govern the conferral of citizenship at birth, and not the
admission of aliens, the ordinary standards of equal protection
review apply. See id., at 480-481 (BREYER, J., dissenting).
***
No one should mistake the majority's analysis for a careful
application of this Court's equal protection jurisprudence
concerning sex-based classifications. Today's decision instead
represents a deviation from a line of cases in which we have
vigilantly applied heightened scrutiny to such classifications to
determine whether a constitutional violation has occurred. I trust
that the depth and vitality of these precedents will ensure that
today's error remains an aberration. I respectfully dissent.
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