As I was musing about blog-worthy topics recently, my roommate brought to my attention a case that is up for review before the Supreme Court, Flores-Villar v. United States. This case challenges the United States citizenship regulation that applies to children born oversees to parents where only one person has U.S. citizenship. The following rule shouldn't have surprised me given that stereotypical gender roles are alive and well in this country:
If the U.S.-citizen parent is a woman, the child can obtain U.S. citizenship if the mother has been physically present in the U.S. for 1 year before the child's birth. For U.S.-citizen fathers, however, this period is extended to 5 years!
Is this unconstitutional gender-based discrimination?
I think it is.
This type of regulation is damaging and sexist. It serves to perpetuate the notion that childcare is the responsibility of the mother by assuming that if there is a separation the child will be raised be her. It is also very unfair to fathers and downplays the reality that some parents are single fathers. When the federal public defender raised both of these points, Justice Scalia had this to say:
He asked if it wasn't generally true that with "an illegitimate child, it is much more likely that the woman will end up caring for it than that the father would?"
Wow. That's really helpful. Thank you Justice Scalia for the term "illegitimate child" as well as your adherence to an outdated/oppressive theory on child rearing.
For more information on this case and to read the briefs submitted before the Supreme Court click here.
Is it a reality that women are more likely to to be single parents than fathers so they should recieve more protection under the law? If this is true, is extra protection worth the risk of validating gender stereotypes? What do you think?
I think one small factor escapes our current Supreme Court: that no matter what the current reality is, we can change this reality by changing the rules. Brown v. Board of Education showed that major paradigm change in race relations could be brought about by changing the rules on segregation of public institutions. Similarly, our suspicion of single parenthood, and other non-standard families, such as gay couples, could be changed by changing the ground rules by which our citizens live by. Let's hope for a meaningful change in the antiquated immigration laws, so that more single fathers would be enabled to raise their children without a woman joining in their effort.
ReplyDeleteThis was a very interesting case and I especially loved its constitutional relevance. I think the Court’s decision in this case was largely based on its precedent in Nguyen v. INS. In that case, the Court affirmed a policy that made it necessary for a male citizen, but not for a female citizen, to affirmatively prove his paternity to a child born out of wedlock and overseas to establish citizenship for that child. As much as I would like to say that the court took a gender-neutral approach, I cannot. The court noted in its decision that it was more likely that the mother would be present at the birth of the child, but it was unclear whether the father would be present or even aware of the child’s birth. This analysis is based on biological differences; there is no possible way for the mother to not be present at the time of birth. The court found this to be an important factor in their decision, because they believed that by being present at the birth, it created a kind of nurturing bond between the child and the parent.
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