Sexism against fathers

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.