Martha Davis

Sexism against fathers

By Martha Davis
June 15, 2011

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WE’VE BECOME accustomed to divisions of opinion on controversial issues: abortion, health care, party politics. But sex discrimination? Is anyone still in favor of that?

Apparently so. On Monday, four justices of the Supreme Court voted to uphold a federal law that makes it easier for mothers than fathers to transmit citizenship to their out-of-wedlock children in Flores-Villar v. United States. Four other justices voted to strike down the law as unconstitutional. And one justice, Elena Kagan, recused herself from the case because of her involvement in the matter when she was solicitor general. With this anonymous 4-4 split, in which none of the justices revealed their individual votes and the entire opinion consisted of a single sentence, the lower court’s opinion was summarily affirmed and the discriminatory law was upheld.

This is a tragic and unnecessary personal loss for Ruben Flores-Villar, who was raised by his citizen father and the father’s family in the United States, yet now faces deportation because of the special constraints put on fathers — not mothers — who wish to transmit citizenship. In particular, the law applying to Flores-Villar provides a different residency period for parents, depending on whether the parent is a mother (one-year residency, at any age) or a father (five years residency after age 14).

Surprisingly, this issue of sex discrimination in citizenship has deeply divided the Supreme Court for more than a decade. Yet there shouldn’t be a controversy here: the law at issue in the Flores-Villar case is one of the few sex-specific laws still remaining in the federal statute books. It clearly discriminates against men who want to extend US citizenship to their out-of-wedlock children. The residency requirements upheld in the Flores-Villar case have nothing to do with the aspects of childbirth in which mothers and fathers might have distinct circumstances thanks to basic biology. Moreover, this distinction violates both international human rights law and well-established domestic constitutional principles of sex equality.

The Supreme Court will not be able to avoid this issue forever. Kagan’s recusal created the occasion for an evenly split decision, but the next case raising this issue should benefit from a hearing before the full nine-justice court. In the meantime, though, Congress should examine the issue of sex discrimination in citizenship law. As long as the sex-based residency law remains on the books, individual citizen fathers are being denied basic rights of equality.

The discriminatory law at issue here reflects the ancient idea that fathers had no obligations toward their out-of-wedlock children, while mothers bore sole responsibility for these offspring. At a time when fathers are more and more involved in their children’s lives — a trend that has broad societal support — we can’t afford to continue sending a message that paternal involvement has little value. Indeed, eliminating discrimination in citizenship has been a central cause of the women’s movement for more than a century, and it was one of the major campaign issues of the suffragettes.

The Supreme Court’s indecision in Flores-Villar means that there will be yet another chapter in this long struggle. But make no mistake: after more than a century of advocacy for equal citizenship rights for both women and men, this issue will not fade away

Martha Davis is a member of the faculty at Northeastern University School of Law. Together with a team of students and staff, she filed an amicus brief in Flores-Villar v. United States.