Determined whether it is constitutional, under the Equal Protection Clause, to enforce different requirements for citizenship on an out-of-wedlock child who is born abroad to a U.S. citizen, depending upon whether the U.S. citizen is the child's mother or father.
The plaintiff was the out-of-wedlock daughter of a male American citizen, born outside the U.S. Her petition for citizenship was denied because, although an out-of-wedlock child of a citizen mother can obtain citizenship without further inquiry even if born outside the U.S., an out-of-wedlock child of a citizen father must be legitimated prior to the child's 18th birthday and the father must promise to support the child up to the child's 18th birthday. Because plaintiff in this case was over 18, the fact that her father had legitimated her in Texas did not bring her within the statutory requirements. In four separate opinions, the Supreme Court decided the case against the plaintiff, but only two justices -- Justice Stevens and Chief Justice Rehnquist -- held that the gender discrimination passed constitutional scrutiny. Justices O'Connor and Kennedy held that the gender discrimination was against the father who was not in the case and that the daughter did not have standing to raise the gender discrimination claim. Justice O'Connor said in dicta that if the gender discrimination claim could have been raised, it would not have withstood heightened scrutiny. Justices Scalia and Thomas opined that the Court had no power to confer citizenship and thus did not reach the merits. Justices Ginsberg, Breyer and Souter dissented finding the statute unconstitutional under the standard of United States v. Virginia, 518 U.S. 515 (1996).
Legal Momentum filed an amicus brief before the Supreme Court with the ACLU and the law firm of Hogan & Hartson, arguing that the standard established for testing gender-based classifications in United States v. Virginia requires heightened scrutiny and that the distinction in this case, based on gender stereotypes of mothers' as opposed to fathers' relationships with their children, cannot pass constitutional muster.
The amicus brief is available on the ACLU's website.