U.S. Supreme Court: Gender Discrimination in Immigration Case

Posted On: December 1, 2010

Since the 1970’s the Supreme Court has consistently ruled that laws that discriminate on the basis of gender are unconstitutional, but on November 10 the justices gave the impression they were ready to allow an exception to the rule.

The case revolved around whether “children born of mixed marriages abroad can claim U.S. citizenship.” Currently, legislation allows unwed mothers with U.S. citizenship of at least one year to pass on their citizenship to their foreign-born babies while unwed fathers can’t pass on their citizenship unless they’ve lived in the U.S. for at least five years after the age of 14.

In this case, Ruben Flores-Villar, born of a Mexican mother and raised by his American father in San Diego was about to be deported for the fourth time in response to the sale of marijuana, when he argued that he should be granted U.S. citizenship due to the fact his father was a 16 year old U.S. citizen when he was born. His lawyers argued that the above law is discriminatory against fathers and therefore unconstitutional.

Though Justice Ruth Bader Ginsburg spoke out against the stereotype that women are traditional caregivers for children and that in fact it was Flores-Villar’s father who took care of him, others on the court disagreed. Justice Kennedy didn’t want to go against Congress’ ruling and Justice Scalia said there was no precedent in which the court had ordered the government to permit someone citizenship. Due to the fact the Justice Kagan sat out on the case because of her previous involvement while at the State Department, it seems unlikely that the court will rule with Flores-Villar and declare the legislation unconstitutional.