WASHINGTON (AP) — The Supreme Court seemed troubled Wednesday by a U.S. citizenship law that treats men and women differently. Despite the justices' misgivings, however, they appeared unlikely to help a Mexican-born man who says he should be declared an American.
The justices heard arguments in a case that revolves around a 70-year-old law that applies to children born outside the United States to one parent who is an American and one who is not. Children of unwed fathers who are citizens face higher hurdles in claiming citizenship for themselves.
Ruben Flores-Villar, born in Mexico but raised by his father and grandmother in San Diego, California, is appealing a criminal conviction for violating immigration law. U.S. authorities have previously denied his claim to U.S. citizenship. Flores-Villar, 36, has been deported.
The law perpetuates outdated "gender stereotypes" about caring for children in a time when many more single fathers take primary responsibility for raising their children, said Steven Hubachek, the federal defender representing Flores-Villar.
Justice Antonin Scalia wondered, however, whether it was not still true generally "that with an illegitimate child, that the mother will end up caring for the child."
Even before Hubachek could answer that question, Justice Ruth Bader Ginsburg suggested the court should be considering parents, like Flores-Villar's father, "who don't fit this mold."
The Obama administration urged the court to uphold the conviction. Congress took many factors into account in drafting the law, including the child's likely connection to the United States and the laws of other countries, Justice Department lawyer Edwin Kneedler said.
Neither side offered an estimate of how many people might be affected, although the advocacy group American Citizens Abroad says more than 40,000 children a year are born outside the United States to an American parent.
Among the many wrinkles in the case is that Flores-Villar is claiming discrimination on behalf of his father.
For people born before 1986, their U.S. citizen fathers had to have lived in the United States for 10 years, at least five of them after the age of 14. Flores-Villar's father could not meet the second part of that requirement because he was only 16 when his son was born.
American mothers need only have lived in the U.S. continuously for a year before the birth of a child.
Changes to immigration law made in 1986 reduced the total residency time for fathers to five years, only two of which had to be after the age of 14.
By contrast, a child born in the United States, regardless of the parents' nationality, is a U.S. citizen, as is a child born abroad to two American citizens if one of them has ever lived in the United States.
Another oddity is that the law also imposes the longer residency period on married couples when one spouse is not a citizen.
The only outcome that would help Flores-Villar is if, in effect, the court took the extraordinary step of declaring him a citizen. Three justices, Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, signaled they might be willing to take Flores-Villar's side. There did not appear to be two more justices willing to go that far. Justice Elena Kagan was absent because of her work on the case during her time at the Justice Department.
The court also could find that the law impermissibly discriminates against men, but then equalize the residency requirement by making it longer for everyone.
Or the justices could decide that the case is so knotty that perhaps it was a mistake to take it up in the first place and issue no ruling. Chief Justice John Roberts and Scalia both suggested such a result.
A decision is expected by summer.
The case is Flores-Villar v. U.S., 09-5801.
Copyright 2010 The Associated Press.
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