WASHINGTON (CN) - Supreme Court justices on Wednesday questioned whether sex-based criteria allowing unwed mothers to transmit citizenship to their children more easily than unwed fathers constituted gender discrimination.
Unwed mothers who are U.S. citizens can transmit citizenship to their children by living in the United States for one year, while unwed fathers must live in the country for five years.
The gender-based requirements were challenged by Ruben Flores-Villar, whose mother was Mexican and his father a U.S. citizen. When Flores-Villar was indicted for being in the United States illegally, he claimed U.S. citizenship based on his father's status but was denied.
He appealed, claiming the sex-based criteria violated the Fifth Amendment, and the 9th Circuit rejected his claim.
Steven Hubachek, arguing for Flores-Villar, said the requirements were based on stereotypes that women, not men, would care for children outside of a marriage.
"What separates a stereotype from a reality?" Justice Antonin Scalia asked Hubachek, challenging him to dispute the fact that it was "much more likely" for a mother to care for an illegitimate child than a father.
Hubachek acknowledged that it was more likely, but said empirical evidence doesn't drive gender discrimination cases.
Justices Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg seemed concerned with how to fit the unmarried father into the one-year category of the unmarried mother in order to resolve the gender disparity.
Ginsburg said it appeared that an unmarried woman was being favored in comparison to the unmarried man, who received the same treatment as married couples, requiring five years of physical presence in the United States to transmit citizenship.
Sotomayor followed up on Ginsburg's point, asking why only unmarried mothers got the generous benefit of one year. She wondered if unwed mothers should be moved into the five-year category with couples and unwed fathers "rather than extending a largess to a greater number of people."
Breyer also seemed to embrace a more general rule requiring both the father and mother to have lived in the United States for five years. He asked how Hubachek proposed to strike portions of the statute that set out requirements for couples and unwed fathers and "shove them all" into the portion of the law that allowed one year for unwed mothers.
"How do you get there?" Breyer asked.
"By extension," Hubachek said, saying the statute has a severability clause that allows the court to grant an extension remedy. Hubachek argued that without the extension, Flores-Villar would have no remedy.
But Chief Justice John Roberts pointed out that the equal protection violation would be resolved if all were treated equally, meaning everyone was required to live in the United States for five years.
"That's all of the relief he is entitled to," Roberts said.
Hubachek said the remedy was unavailable, because you can't take away citizenship from people who already have it.
Scalia seemed skeptical of Hubachek's attempt to have a court pronounce Flores-Villar a U.S. citizen.
"Do you have any other case where a court has conferred citizenship on someone who, under the statute as written, does not have it?"
"[T]he court has not said that yet, but it can in this case," Hubachek said.
"Never done," Scalia said.
"That's correct," Hubachek said.
Justice Anthony Kennedy also expressed doubt about Hubachek's argument, saying he was asking the court to write an opinion saying Congress has less deference when considering who should be a national than when it determines who should be admitted as an alien.
"It seems to me that it ought to be just the other way around," Kennedy said.
Ginsburg asked Deputy Solicitor General Edwin Kneedler, arguing for the government, why Congress could not decide that it wanted to encourage father-child relationships and put unwed mothers in the five-year category and fathers in the one-year.
Kneedler replied that such a classification, because it's based on behavior, would be invalid.
"So ... you recognize that there are categorizations that would run afoul of equal protection?" Ginsburg asked.
Kneedler said he would need to know the rationale for it.
Roberts asked Kneedler what the court should do if it did find an equal protection violation.
Kneedler said it should strike the eligibility of anyone getting citizenship based on one year.
Roberts said if the only remedy was to "equalize up," or add years to the unwed mother's requirement, the case would never reach the merits, because Flores-Villar would be unaffected.
Kneedler responded that, in the context of citizenship, the court could justify doing just that.
Justice Elena Kagan recused herself from the case due to her work as solicitor general.
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