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Thursday, Jan. 11, 2001

Chief Justice Earl Warren once called citizenship "the right to have rights." This oft-quoted characterization is factually wrong — under both U.S. and international law, non-citizens enjoy nearly all of the rights of citizens – but it does give a useful sense of citizenship's fundamental importance.

Even if the rights exclusively granted to citizens are few in number, their value is obvious. One of the most basic rights inherent in citizenship is, after all, the right to remain in one's country.

The significance of this right must be painfully apparent to Tuan Anh Nguyen, the named plaintiff in Nguyen v. INS, a case argued before the Supreme Court on Tuesday, January 9th. Facing deportation to Vietnam, a country he last saw when he was six years old, Nguyen is fighting to remain with his family in the United States.

The Facts of Nguyen

Nguyen, the son of an American citizen, only faces deportation because of a discriminatory provision in the Immigration and Naturalization Act, the law governing the transmission of citizenship from parent to child.

Had Nguyen's American parent been female, the question of Nguyen's return to Vietnam would never have arisen; he would have been recognized as a citizen himself. Yet the American parent who raised Nguyen from infancy was a man, and under the law, that makes a difference.


Equal Protection Issue

Nguyen and his father have asked the Supreme Court to strike down this provision, arguing that because it expressly discriminates on the basis of sex, it violates the constitutional guarantee of equal protection.

Various arguments have been put forward in defense of the provision's differential rules, including that the rules may help address the problem of statelessness. An article by Professor Michael Dorf that appeared on January 9th in Writ suggested that citizenship rules that favor American mothers over fathers may lessen the likelihood that children born to unmarried parents abroad will have no country of citizenship.

But do the discriminatory rules actually prevent statelessness, or do they foster the problem? A review of sexually discriminatory citizenship rules around the world provides the answer.

Sex, Guys, and Stereotypes

In another part of the phrase quoted above, Chief Justice Warren called citizenship "man's basic right," although he probably meant to cover women, too. By 1958, when he tackled the topic, this country had surmounted its long history of discriminating against women in rules relating to the retention and transmission of citizenship.

Earlier, in the nineteenth century and the early part of the twentieth, the laws of the United States relating to citizenship unquestionably favored men. Indeed, not only were women unable to transmit their U.S. citizenship to children born abroad, they even risked losing their own citizenship upon marriage to a foreigner.

By mid-century, however, the tide had turned. No longer did the country's citizenship rules embrace objectionable stereotypes about the role of women; instead, in one discrete area at least, they discriminated against men.

Under the Nationality Act of 1940, for the first time, unmarried fathers of children born overseas faced prerequisites for transmitting citizenship — prerequisites that their female counterparts did not also face. Moreover, these stricter rules were tightened even further in subsequent versions of the country's immigration and naturalization law.

The lead opinion in Miller v. Albright, the 1998 Supreme Court case that upheld the differential rules on technical grounds, is notable in this regard. Even while it heaps scorn on the notion that the rules reflect outdated gender stereotypes, the opinion nevertheless refers more than once to the situation of servicemen overseas, implicitly brandishing the stereotype of the randy sailor on shore leave.

The opinion's truly unforgettable line is its reference to the sexual act – "the joint conduct of a citizen and an alien that results in conception" – perhaps the most inelegant and unromantic euphemism for sex ever to grace a text of any sort. Yet its knowing allusions to the sexual foibles of American servicemen abroad are telling: The opinion assumes that these servicemen "would not necessarily know about, or be known by, their children."

The Court's stereotypical view of these men is, of course, a far cry from the reality of Nguyen's father, who bore responsibility for raising his son, even in the absence of the child's mother — yet still is negatively affected by the law.

Other Countries' Citizenship Regimes

Whatever the current situation of unmarried fathers, the United States can, at least, be proud that it has abolished citizenship rules that unfairly discriminate against women. Unfortunately, what is history in the United States is all too current in many other countries.

Indeed, gender-based discrimination in the area of citizenship is one of the stubbornest forms of de jure discrimination faced by women around the world. And the problem has important ramifications with regard to the problem of statelessness — that is, of individuals whom no country recognizes as citizens.

In his article, Professor Dorf correctly explains that problems of statelessness may result from different countries' conflicting citizenship laws. As he notes, some countries grant citizenship based on birth within their territorial boundaries, following the principle of jus soli, while others, following the principle of jus sanguinis, grant citizenship based primarily on descent.

Where Professor Dorf's argument is weaker is in its characterization of other countries' rules — which suggests that the risk of statelessness only, or primarily, affects children born to American women abroad. He cites "stereotypical assumptions" pervading the laws of jus sanguinis jurisdictions that reflect the notion that the mother's bonds with a child "naturally" exceed that of the father, so that children will typically acquire the citizenship of the mother. But in fact, the gender bias embodied in many countries' laws is precisely the opposite, favoring fathers, not mothers.

Particularly in the Middle East, but also in some Asian and African countries, laws regarding women's ability to retain and transmit citizenship are similar to those that existed in the United States in the first part of this century. Some countries do not recognize the citizenship of children from marriages between female citizens and foreign men. But in many, the question of marriage does not enter into it; women are simply not recognized as being able to confer citizenship upon their children, period. A child born to an American father and a mother who is a citizen of such a country must be able to take his father's citizenship, or else risk having none.

A few countries, like Kenya and Malaysia, do not recognize citizenship by descent from the mother if the birth occurs overseas. But others, like Algeria, Kuwait, and Nepal, only recognize citizenship by descent from the father. Indeed, in some of these countries, women's inability to transmit their citizenship is enshrined in the constitution. Again, a child born to an American father and a woman citizen of these countries must take his father's citizenship, or be stateless.

In short, the plight of children born in such countries is aggravated, not solved, by the stricter, differential rules applicable to U.S. citizen fathers. In recognition of their difficult situation, and because sex discrimination in citizenship is inherently repugnant, the Supreme Court should strike down the provision challenged in Nguyen.

Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. She previously taught a workshop on immigration and asylum law as a volunteer instructor at Columbia Law School. The two-part article by Professor Dorf to which her article refers may be found in the archive of his pieces on Writ.

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