AMID THE flood of decisions handed down in the last two weeks of its last term, the Supreme Court announced a tie vote in Flores-Villar v. United States—a constitutional challenge to a federal law that discriminates between unmarried American fathers and mothers in their ability to secure citizenship for their foreign-born children. As a result of this split decision, the lower court’s ruling upholding of the law remains in place. (Only eight justices voted. Justice Elena Kagan recused herself because of previous involvement in the case as U.S. Solicitor General.)
The Court’s decision in Flores-Villar was issued “per curiam”—a designation that the Court uses to signal a decision issued anonymously and typically, as in this case, without an opinion. But, like Sherlock Holmes’ dog that didn’t bark, the silence in Flores-Villar is much more interesting than it first appears. Although we do not have an opinion from the Court, the justices revealed some of their thinking at oral argument last November. Given that it is a near certainty that the Court will again confront the question of whether the Constitution permits sex discrimination in our citizenship laws, it is worth attending to what was said—and what wasn’t said—in Flores-Villar.
Ruben Flores-Villar was born in Mexico to an American father and a Mexican mother. The couple was not married, and Ruben was raised from infancy in his father’s American household in San Diego, where his paternal ancestors have lived for decades. Despite this history, Ruben is not considered a U.S. citizen under federal citizenship laws.
Among the various requirements Ruben’s father had to satisfy in order to secure citizenship for his son, he had to show that he had lived in the United States for a total of ten years, five of which must have been after he (the father) turned fourteen but before Ruben’s birth. This was impossible, as Ruben’s father was only sixteen when Ruben was born. Unmarried American mothers need only have lived in America for a year at any point to secure citizenship for their foreign-born children. Were Ruben’s mother the American parent, Ruben would unquestionably be a U.S. citizen.
None of this was particularly important to Ruben until he got in trouble with the law and was deported to Mexico, exiled from the only country he has ever called home. When the federal appeals court rejected Ruben’s argument that his father had been wrongly subjected to requirements that mothers were not, Ruben turned to the Supreme Court. Oral argument circled around two issues: What does “sex equality” mean? Who has the power to enforce it?
The first question is one that the Court has answered time and again. Laws based on gender stereotypes about the way men and women behave are unfair and unconstitutional. The Supreme Court established that principle in a now classic series of opinions issued in the 1970s in cases that Ruth Bader Ginsberg dazzlingly argued as an attorney for the Women’s Rights Project of the ACLU. Even when stereotypes about women’s or men’s behavior might accurately predict what a majority of people will do, those individuals whose behavior does not conform to the stereotype ought not be penalized. At oral argument in Flores-Villar, references were repeatedly made to Weinberger v. Weisenfeld, which Ginsburg argued in 1975. Then, a unanimous Supreme Court agreed with her that a Social Security law that provided benefits to widows, but not to widowers, with small children was based on the stereotype that imagined only bereft mothers, not bereft fathers.
The discrimination at issue in Flores-Villar rested on a related gender-based stereotype: Mothers are fully responsible for children born out of wedlock, and fathers may—and do—stay safely in the distance. But several of the justices appeared openly hesitant to acknowledge the ugly stereotype at work in the case, even though Ruben Flores-Villar, Sr., who had not abandoned his son, most assuredly did not fit it. Their hesitation surely contributed to the split decision in Flores-Villar and keeps that stereotype alive, underscoring just how precarious authentic equality between the sexes is today.
Suppose the justices agreed that Ruben was right—that the law unjustly discriminated against fathers like his. The next question was: Does the Court have the power to remedy the situation? One would think that the answer is unquestionably, “yes.” One of the primary roles of courts in a constitutional democracy is to make sure that the government complies with the Constitution. Ours is not a government of angels, to paraphrase James Madison.
But this question also generated considerable disagreement. The Constitution gives Congress the power “to establish a uniform rule of Naturalization.” On this basis, in a series of cases the Court has ceded to Congress substantial authority—“plenary power”—over immigration and naturalization law, at least in certain situations. Eager to emphasize that cases involving otherwise unconstitutional discrimination should receive special deference, the attorney for the government in Flores-Villar went so far as to suggest that if Congress were to enact an immigration law that excluded certain people because of their race, the Court’s power to review such a law would be minimal.
Even if one agrees with this stunted vision of the Court’s power to enforce the Constitution, it is not clear that Congress has a blank check to enact discriminatory citizenship laws. The laws that govern Ruben’s citizenship claim do not regulate “immigration.” Children who qualify as citizens under these laws are not considered strangers to the nation who must abandon one country’s citizenship to embrace another. Although born abroad, these children are considered citizens at birth.
The distinction is not a semantic one. Laws governing citizenship tell us who needs to seek naturalization to begin with. And Ruben, Jr.’s lawyers argue that because the key question is whether Ruben is a citizen at birth, well-established principles of constitutional sex equality should apply. But lawyers for the government insist that whatever Ruben is seeking—naturalization or citizenship—Congress can do as it pleases, and the Court can punt on the sex equality question.
In their questions, several justices seemed to agree, eliding the distinction between citizenship and naturalization. At one point, Justice Scalia stated that Ruben was asking the Court to “confer citizenship,” and implied that the Court had no such power. At another point, Chief Justice Roberts indicated that the Court could not “grant naturalization.” Later, Justice Kennedy questioned the Court’s authority to act when Congress “determines who should be admitted as an alien.”
In our own political moment, these words—citizenship, naturalization, alien—are highly charged and often misused. That they were so slippery in the Court’s deliberations in Flores-Villar may be a sign of how slippery they have become in public conversation. No one in the courtroom that day could have been unaware that the birthright citizenship clause of the Fourteenth Amendment—one of the key bulwarks of American liberty, enacted following the Civil War to make sure that southern states recognized African Americans as citizens—is being energetically attacked in legislatures throughout the nation. The attack is linked to suspicion of undocumented migrants, stereotypically visualized as pregnant women entering from Mexico to take advantage of the fact that their “anchor babies” would be citizens. In Flores-Villar, another gender-based stereotype survived: the unmarried father who plays no role in his child’s upbringing. But, in reality, neither of these stereotypical parents was present. Instead, we had an American father who brought his newborn son home to the United States to raise him there. The important differences between stereotypes and real people, and between immigration and citizenship, seem to have blurred for half of the Court.
Three times in thirteen years the Supreme Court has heard arguments on the question of whether mothers and fathers may be treated differently in determining whether their children are American citizens. Given the equivocal result in Flores-Villar and the importance of what is at stake, there will no doubt be a fourth time. We must now wait patiently to see what a full Court—one on which Justice Kagan need not recuse herself—might do. But Ruben Flores-Villar, Jr.—descended from one of the oldest families in San Diego, located there long before the U.S. flag waved over the city—is now in exile.
Kristin Collins is a law professor at Boston University. Linda K. Kerber is a professor of history and lecturer in law at the University of Iowa.