A legal case for Congress

May 12, 1998

The Miami Herald said in an editorial Sunday:

WHEN the U.S. Supreme Court splits five ways from Sunday on a matter that even has justices in the majority disagreeing among themselves, Congress ought to revisit the troublesome law at issue.

Recently, the court upheld a law that makes distinctions between fathers and mothers when determining the citizenship of their children. The law was written in 1940 and amended in 1986. It provides that children born abroad and out of wedlock are deemed Americans if their mothers are. But if a child is born to a non-American mother, his or her American father must acknowledge parenthood before the child reaches 18 years of age.

The case before the court involved a young woman, Lorelyn Miller, born in the Philippines in 1970. Her father, a serviceman at the time, did not acknowledge her until after she became an adult. The State Department has refused to recognize her as an American citizen.

Parental problem

In the majority opinion, Justice John Paul Stevens and Chief Justice William Rehnquist found the distinction between mothers and fathers reasonable. The relationship of mother and child is immediately apparent, they reasoned, whereas a father's is not. Indeed, a father might not even know of the child's existence.

Two justices, Antonin Scalia and Clarence Thomas, concurred, saying that Congress alone has the power to determine citizenship.

Two more justices, Sandra Day O'Connor and Anthony Kennedy, said that had Ms. Miller's father brought suit, they would have found the law discriminated against him. They deemed Ms. Miller to be a third party who couldn't raise the question for her father.

Three justices, Ruth Bader Ginsburg, David Souter, and Stephen Breyer, dissented, writing two opinions. Justice Ginsburg pointed out that citizenship laws had long discriminated by sex, relying on stereotypes to inform government policies. Justice Breyer said such a law assumes that mothers are closer to children than fathers.

What a goulash of judicial thought.

While foreign-born children surely should have to prove a relationship to an American parent for citizenship, posing more hurdles for children of citizen-fathers doesn't make sense, unless fatherhood is a lesser status.

Congress now is invited to change this law, and in the interest of fairness, it should do so.

Pub Date: 5/12/98

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