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Supreme Ct Weighs Rights of Unmarried Dads' Children Born Abroad

The U.S. Supreme Court is hearing a case today with important implications for fathers' rights and for gender equity under the law generally. In the case of Flores-Villar v. United States, the court will consider whether, in cases where a child is born abroad to unmarried parents, it is constitutional for the U.S. to have tougher citizenship standards when the father is a U.S. citizen than when the citizen is the mother.

Nearly 40 percent of U.S. children are now born to unmarried parents, and the rate of births to unmarried parents is increasing quickly worldwide. Gender-based differences in how those children are treated by the U.S. government could have a far-reaching impact on both children's and fathers' rights, as well as international child custody consequences.

Under U.S. law, a child born abroad to unmarried parents is considered a U.S. citizen as long as one parent is a U.S. citizen and meets certain requirements. According to the lawsuit, this was the state of the law when the plaintiff, Ruben Flores-Villar, was born:

  • If the U.S. citizen-parent was the father, the child was a U.S. citizen as long as the father had lived in the U.S. for at least ten years before the child was born, and at least five of those ten years had to be after he turned 14. In other words, the youngest an unmarried father could be in order to confer citizenship on his child was 19.
  • If the citizen-parent was the mother, however, the child was a U.S. citizen if the mother had lived in the U.S. for a total of one year at any time before the child was born, with no age restriction.

Flores-Villar was born in Mexico to teenage parents. His 16-year-old father was a U.S. citizen. His father raised him from birth in the U.S., but Flores-Villar could not gain U.S. citizenship through his father because his father was only 16 when he was born.

What Is the U.S. Government's Reasoning for the Sex-Based Difference?

In order for any gender-based difference in the way laws treat people to be constitutional, the government has to prove that the distinction serves an important government interest and that the gender-based solution is closely tailored to serve that interest.

In defending the gender distinction in the U.S. citizenship rule, the government argues that the law is intended to make it easier for unmarried U.S. citizen mothers to confer citizenship on their children. This is because some countries refuse to acknowledge the citizenship of children born to unwed mothers.

As a result, if the law were as strict for the children of unmarried U.S. citizen-mothers as unmarried U.S. citizen-fathers, many children would end up "stateless" -- not citizens of any country.

However important it may be to avoid children being stateless, it does beg the question of why the rules need to be so strict about allowing children to claim citizenship based on paternity. Marcia D. Greenberger of the National Women's Law Center suspects it is based on an outdated stereotype that unmarried fathers do not develop significant relationships with their children. In Flores-Villar's case, this was clearly not true.

The Court heard the case today, and no ruling is expected before a minimum of several months.

Source: The Huffington Post, "Equal Protection for Unmarried Fathers," Marcia D. Greenberger, Co-President, National Women's Law Center, November 10, 2010

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