A VICTORY FOR MOTHERHOOD AND FOR SEXISM: The Supreme Court's Decision In Nguyen v. INS

Last week, the Supreme Court, in the case of Nguyen v. INS, upheld a provision of federal law that explicitly treats mothers and fathers differently. The Court's decision is remarkable not only because it condones Congress' blatant sex discrimination, but also because it does so without a second thought.

The statute at issue in Nguyen governs the acquisition of United States citizenship by children born abroad to unmarried parents, one of whom is a United States citizen and one of whom is not. Should such a child be treated as a United States citizen? According to the statute, that depends on whether the citizen-parent is his mother or father.

Citizen-mothers who have lived for at least one continuous year in the United States automatically transmit citizenship to their foreign-born children at birth. In contrast, citizen-fathers and their foreign-born children must take affirmative steps to bring about the same result.

Specifically, the citizen-father must agree in writing to provide financial support until the child reaches the age of 18. And the foreign-born child must prove the existence of a blood relationship by clear and convincing evidence.

The child must also obtain formal recognition of paternity before he or she turns 18 — through a legitimation proceeding; a written, sworn acknowledgement of paternity from the father; or a court adjudication of paternity. Only then will the child be treated as if he had been a citizen since birth.

What is at stake for the foreign-born child who does not comply (or whose parent does not comply) with these technical regulations? The child must live in the United States as (at best) a legal alien, rather than a citizen.

Doing that has certain risks. One of those risks is that, for a legal alien, criminal conduct may result not only in a prison sentence, but deportation as well, to the country of which the alien is a citizen.

For example, Tuan Ahn Nguyen, the plaintiff in the case before the Court, was convicted of two crimes of moral turpitude, and now faces deportation to Vietnam. The unfairness of this outcome, in Nguyen's case, is evident when one considers the facts.

Nguyen was born in Vietnam in 1969 to an American father, Joseph Boulais, and a Vietnamese mother. Boulais openly acknowledged paternity, which no one in the case disputes. He also supported and lived with his son, taking him back to the U.S. and raising him, with the help of Boulais' new wife, in Texas. Accordingly, Nguyen has not lived in Vietnam since early childhood, and no longer has any meaningful ties to the country. The Court acknowledges that Nguyen's mother may not have survived the war.

Had Boulais been a woman — and Nguyen's mother — then Nguyen would still be a citizen, and could not be deported. But because Boulais was a man — and Nguyen's father — he now must watch as his son is deported to a country to which he is effectively a stranger. The pernicious sex discrimination is obvious.

Represented by the NOW Legal Defense and Education Fund, a powerful women's advocacy group, Boulais and Nguyen challenged the discriminatory statute on the ground that it violated the Constitution's guarantee of equal protection of the law (which protects both citizens and non-citizens living in this country). But the Supreme Court upheld the statute.

The Court reviews statutes that — like the statute at issue in Nguyen — openly discriminate on the basis of sex using what is called "intermediate scrutiny." That means that the Court, applying a two-part test, must find both that Congress had an important governmental interest in mind, and that the means Congress chose to accomplish its goal were substantially related to that interest.

Recent sex discrimination decisions have arguably strengthened this test, by emphasizing the need for "an exceedingly persuasive justification" for discriminating on the basis of sex. Nevertheless, the "intermediate scrutiny" standard is not as strong as the "strict scrutiny" standard that is applicable when, for example, race discrimination is at issue. (The Court could also have applied a still-weaker standard, because naturalization was at issue, but it chose not to.)

In Nguyen, the Supreme Court identified two purported interests motivating Congress to enact this statute. First, there was Congress' interest in ensuring that children are only granted citizenship when they in fact have a citizen-parent.

Second, there was Congress' interest in ensuring that for citizenship to be granted to a child with a citizen-parent, the child and parent must have had "some demonstrated opportunity" to have a meaningful relationship, which could establish ties between the child and the United States.

The Court was not wrong to call these putative interests important, though whether they were the real motivation for the statute is a valid question raised by the dissenting justices. But it was wrong to sanction blatant sex discrimination as a way to achieve them.

Consider the first interest — which can also be described as an interest in weeding out fraudulent claims of fatherhood. Whether this interest truly motivated Congress may be questionable, given that the statute makes no effort at all to weed out false motherhood claims, apparently requiring no proof of motherhood. Putting that aside, however, the statute Nguyen challenges is not necessary to serve this interest.

Indeed, a separate statutory provision, which is not challenged by Nguyen, fully addresses this interest. It does so by requiring that the would-be-citizen prove paternity by clear and convincing evidence–that is, with more proof than is usually required in civil cases.

Especially given the sophistication of today's DNA testing, this provision fully addresses the government's interest in eliminating false fatherhood claims. The extra requirement — which Nguyen does challenge — that paternity be adjudicated before the child's eighteenth birthday is superfluous. DNA testing is no more effective before the child's eighteenth birthday than afterwards.

The Court ignored this argument, defensively explaining that Congress does not have to elect any "particular mechanism" for reaching its goals. But modern equal protection jurisprudence seemingly requires just that. Put another way, the law requires that the means closely fit the asserted end — something that was blatantly not the case with the "maternity anytime/paternity before 18" statute.

Recently, in United States v. Virginia, the Court struck down the male-only admissions policy of the Virginia Military Institute (VMI). In that decision, the Court required almost a perfect fit between the state's purported interest and the discriminatory mechanism used to achieve it.

If just one woman could succeed in VMI's program, Justice Ginsburg suggested in her majority opinion, the male-only admissions policy could not survive intermediate scrutiny. Similarly, if just one father could honestly claim citizenship for an adult child, how could the policy precluding him from doing so survive intermediate scrutiny?

Ensuring Meaningful Child/Parent Ties

What about the second governmental interest, in ensuring meaningful ties between the child and the citizen-parent? Again, the interest makes sense, but contrary to the Court's ruling, the statute's means does not sufficiently fit it.

The Court held that for mothers, Congress could simply presume the opportunity for a meaningful relationship with the child, based solely on the "biological inevitability" that the mother be present at birth. But for fathers — who might be men in the armed services sowing their wild oats while on furlough, and who might not even attend the birth — the Court concluded, the same presumption could not be made.

Granted, the presumption that mothers are more likely to develop ties than fathers may be accurate more often than not. But to make the requirement that the means fit the end real, the law cannot leave out the many parents who will not fit the stereotype.

The equal protection clause is not supposed to sit idly by while men and women who are, in many cases, identically situated are treated differently. And that is exactly what is happening here. Had Boulais acted exactly as he did (or even much less honorably), but been a woman, Nguyen would be a citizen now.

Like the woman who can pass muster at VMI, even if many women cannot, the father who can pass muster at fatherhood, even if many fathers cannot, deserves an individual chance — not the barred door the Court endorsed.

If Congress had truly wanted to make sure parents could only confer citizenship on children with whom they had a "demonstrated opportunity" to develop a relationship, it could simply have required an evidentiary showing to that effect (just as it required a pre-18-year-old evidentiary paternity showing).

Perhaps a mother's showing to this effect could be satisfied by a birth certificate alone. But a father should not be precluded from ever making such a showing — and that is the statute's effect. Again, Congress' choice of means is a bad fit with its claimed end, and a good fit only if the sex stereotypes it relies on are true.

Nguyen's Effect

Nguyen may have a significant precedential effect — particularly because the Court did not apply a special, weaker standard due to the naturalization context. Today, it is rare for statutes explicitly to treat men and women differently. But in two notable contexts, many states differentiate between unwed mothers and fathers, and Nguyen may serve to validate those forms of sex discrimination, too.

In some states, biological mothers are entitled to certain due process rights (including the right to notice) before their children can be adopted by another family. But biological fathers of out-of-wedlock children are often entitled to these rights only if they have had their paternity formally recognized. As with Nguyen's father, whether they have in fact acted like fathers since birth makes no difference under the law.

Inheritance laws often similarly discriminate against fathers. At common law, out-of-wedlock children were considered to be the child of no one ("filius nullius") and could inherit from neither parent. But gradually American states began to recognize the relationship between out-of-wedlock children and their mothers, and, to a lesser extent, their fathers.

Today, some states continue to differentiate between unwed mothers and fathers for inheritance purposes. These states require that unwed fathers jump through hoops — not unlike those required by the statute at issue in Nguyen — if they want their children to be able to inherit their property even if they die without a will.

Other states take a more modern approach, making no distinction at all between unwed mothers and fathers who die without having executed wills. But the Supreme Court has, in Nguyen, indirectly endorsed the discriminatory approach, under which out-of-wedlock children are effectively barred from inheriting their fathers' estates.

The Feminist Agenda

Nguyen v. INS is the most recent in a long line of cases where women's advocates have represented male plaintiffs to challenge sex discrimination. One might at first be surprised that NOW LDEF challenged a law (unsuccessfully, as it turns out) that recognizes a special mother/child bond. But, as the late Justice Brennan once pointed out, sometimes laws that appear to put women on a pedestal actually put them in a cage.

Romantic ideals about the uniqueness of motherhood perpetuate the notion that women, rather than men, should assume responsibility for children. They also contribute to negative stereotypes that diminish women as workers as workers, wage earners, and participants in public life.

Finally, these ideals of motherhood establish and perpetuate, in converse, a less than ideal concept of fatherhood, in which it is "natural" for fathers to shirk responsibility. Yet fathers like Boulais, who disprove this concept, are the ones who will further feminism. Women should fight for their equality, too.