cases make clear mothers and fathers are not particularly similarly situated with respect to legal status concerning the child at the moment of birth. the general rules for citizenship at birth are set out in the act as originally enacted. it was revised in 1986. if both parents were u.s. citizens, then a child born outside the united states would be a citizen of the united states as long as one of the parents had resided in the united states for any period of time. there has to absufficient connection to the united states given both parents were citizens. on the other hand if one parent were a u.s. citizen and one parent an alien congress had a markedly different approach. the u.s. citizen parent had to have resided in the united states 10 years five of which were after the age of reaching 14. congress evidently determined that because such a child would have competing claims of allegiance that a greater residency was required for the parent to establish the connection to the united states. >> is that an argument we heard case?bout in the flores mr. kneedler: it was made at the oral argument but we think it is also evident from the face of the statute as this court said with respect to another argument that the court addressed there, it is important for the court, itself, to look at the structure, text, and operation f the statute. >> the government spent most of the time talking about differential treatment primarily on the ground it statelessness and here your argument is, the thrust of your argument is somewhat different. you need to ensure sufficient ties. kneedler: we're making both arguments and we did argue that there should be a connection to the united states and that the statutory form is set up that way. it is true our emphasis was on statelessness but we are now arguing and again we think it is entirely evident from the face of the statute that what these provisions are after is a connection to the united states. >> why aren't men and women who are parents similarly situated with respect to their affiliation, their attachment to u.s. values? i mean, there is no reason to -- has less s less of a sense of u.s. belonging than a woman. mr. kneedler: we're making no such argument. the point is that where you birth, the moment of the mother, as this court in gnized in other cases, the domestic context, the mother is the only legally recognized parent. >> there are many cases especially in generations back where this law was on the books where the mother, the birth certificate came sometime after the child was born. and both the father's name and the mother's name might be on it. so it's not -- the moment of birth doesn't necessarily tell you who is the mother if she -- if there is no birth certificate and the child, when they get the birth certificate, both names are on it. mr. kneedler: but i think this court's decision and the state statutes that we identify in a footnote in our brief are premised on the proposition that the identity of the mother and her relationship to the child will be known by virtue of the birth alone or at least will be known in the overwhelming majority of cases. in that situation there is only one parent. ere is not a competing claim of citizenship, competing claim of allegiance to another country through another parent. on the other hand when the father legit mates at that point you have two parents and the situation where they are of different nationalities. then you are put in the situation where there are competing claims. >> why do we look to the moment of birth? why shouldn't we look to the moment of citizenship? mr. kneedler: because this provision specifically deals with citizenship at birth. and the statute that is captioned 1409-a with respect to the situation where the father legit mates says the child shall be a citizen as of birth. it is important to understand exactly what is operating here. at the moment of birth, again, the child only has one parent. when the father legitimates what congress has done generously one could say or at least sensibly is to say, we will treat the couple as if they were married at the moment of birth. they're giving retroactive application to the legit confirmation so that the -- the legitimation so the child is freed as the child of married -- treated as the child of married parents at that point. if the legitimatting father is a u.s. citizen in that situation you have two u.s. citizen parents and a very generous rule for u.s. citizen parents would apply in that situation. >> that was more a matter of a of where as this case is question of does the child have sufficient ties to the country? this is quite a different proposition. mr. kneedler: this court's decision had identified two separate interests. one was the proof of paternity. but the other was recognizing the connection to the united states. the connection to the united states in a situation like this has two steps. what is the relationship of the child to the parent? and that case was concerned about establishing that relationship that in some formal sense and also underlying it a real sense of establishing that relationship. this case deals with the relationship of the parent to the united states >> the problem is with the exception created for unwed tizen mothers, the first prime, the the first prong the connection to the united states doesn't exist because the statute doesn't require any connection. she could have been born, lived here a day, and moved somewhere else and she would automatically concur. mr. kneedler: that was true under the 1940 act. under the 1952 act it is continuous presence for one year. congress deemed that to be basically somewhere in between the two u.s. citizen parent situation in which any period of residency was okay and the mix mash of nationality situation where congress said it had to be 10-5. congress chose a period somewhere in between. >> why should it be different for an unwed father who has legitimate ties to the child? mr. kneedler: because in that situation there are two parents. the argument is not that the father's ties are less. it's that there are competing ties and congress wanted to make sure that the strength of the u.s. citizen's ties were sufficient that they would outweigh or at least counteract or congress could be sufficiently confident of a tie to the united states to grant citizenship in that situation. >> couldn't that have been done mr. kneedler, why couldn't these objectives have been served through entirely gender neutral language? for example i know that there was a proposal that the secretary of state made earlier than this statute was passed in the 1930's which talked just about legal parents, which didn't refer to mothers and fathers at all. mr. kneedler: right. several things about that. i don't think there is a claim in this case that respondent would benefit from reading the statute in that manner because i don't think there is any question that he had citizenship and a legal parent when he was born. >> that would get rid of the gender inequality that is at the heart of his complaint whether or not he in the end benefits from it. the question here is whether the statute makes, constitutes a violation of equal protection. one question we ask when we think about a question like that is, could congress have written the statute? could congress have served its objectives in an entirely gender neutral way? it seems as though here we have the secretary of state presented a statute to congress that actually did that. mr. kneedler: but as was pointed out at the time and as we point out in our brief, while that statute on its face looked gender neutral, in fact, it would have operated in exactly the same way as the statute that congress enacted operated because -- and no one has really taken serious issue with the proposition we have in our brief. but at the moment of birth, it was the overwhelming rule that the mother was the only legally recognized parent. so it would have operated in essentially the same way. let me connect this in a slightly different direction. when you have one parent, the mother in this case, she gets to make all of the pertinent decisions about the child. where they will live, where they will be dom cyled, situations lake that. when a father legitimates he does not then acquire the right to make the -- the sole right to make all the decisions for the child. here are then two parents. >> the question i think is think of the child. the child is born out of wedlock. now, if his mother was an american, he becomes an american if she's lived here for one year. if his father who is an american, he becomes an american only if he's lived here for like eight years or 10 years. that's the difference. and why does that make a difference? it would justify gender discrimination. mr. kneedler: that is the same rule which applies if the parents are married. >> two wrongs don't make a right. mr. kneedler: i don't think it -- o one is challenging >> i accept no one is challenging. i'm not asking that question. i'm asking the question of what it is, i would repeat the question, which you heard which i think is the equal protection question at the heart of the case. and the answer that you give in your brief was very well written and brilliant but it went into this thing about stateless persons and then we have like 17 briefs that say, no, no, that wasn't what the situation was. so i guess the question would be there, was it enough of a stateless person justification to warrant this gender discrimination? there is no point in repeating that. i think i've taken that argument. i have to make up my mind about it. is there anything else? mr. kneedler: the first argument we're making again is the point of connection to the united states. that's where the married couple comes in. because no one is challenging the proposition and congress can impose a residency requirement. >> i did have justice kagan's question in mind when i read it. why don't they ask the child if it would like when it reaches the age of 21 to be connected to the united states and see if the child votes in american elections and lives here for a while. what are they so worried about the child's parents? mr. kneedler: the act provides for the acquisition of citizenship at a date after birth. >> lived here for 14 years and so forth. all kinds of stuff. mr. kneedler: no, no. > i want to know if i've got the reason for saying the mother, if she is a u.s. citizen and he's born out of wedlock, only need be here for a year. but the father, has to live here for like 10 years or eight years or something like that. the only justification you've been able to find has to do with thing about statelessness. mr. kneedler: no. we have two reasons. the first one is the connection to the united states which is evident on the face of the statute. when the father legitimates what the statute does is treats the couple as if they were married. in fact, in this case the child was legitimated by marriage and what the statute basically did was make the marriage retroactive to the date of birth. >> an example where they're never married. they like living together without being married. now what is the justification? mr. kneedler: under the 1986 amendment it is easier for the father to acknowledge the child but in that situation again there are two parents and in that situation the father does not get to make unilateral decisions about the child. he gets to be a parent, too. he doesn't get to be the only parent the way the mother is the only parent before legitimation. this is true in the cases this court has had in the domestic context. >> mr. kneedler, you're giving a sophisticated rationale. we're talking about legislation rom 1940 and 1952. t that time, the statute books were just shot through with distinctions between children born out of wedlock and affiliation with the mother and the father. so this was a piece with all that legislation and it wasn't until trimble against gordon it was typical, the illinois probate court said the child orn out of wedlock can inherit through intestate secession from the mother only not the father. the law just put mothers and children not born of a marriage together and separated fathers from their children. and nobody thought until the 1970's that was a violation of equal protection. but in a whole series of cases in the 1970's the court recognized that indeed there was a violation of equal protection. >> insofar as -- there are two equal protection arguments made in cases like that. one of them has to do with equal protection on the basis of illegitimacy. that claim is not raised here and with good reason because respondent as an alien outside the -- person outside the united states and an alien by statute did not have constitutional rights, so it's the parents' right --. >> the laws that then existed put mothers and children born out of wedlock together. and separated fathers from their children. no matter what the reality of their life was. mr. kneedler: in this court's decision in the immigration context, that was exactly the situation and the court rejected equal protection claims based both on sex discrimination and on illegitimacy. >> that was not a claim of citizenship. mr. kneedler: it wasn't but we think if anything it follows because citizenship is entry into the citizenry, membership into our society with rights and obligations. but i also wanted to address your question with respect to the domestic context. this court's decision in lehrer vs. robertson sustained a situation where a child was going to be put up for adoption. the mother would ordinarily have the sole right to decide that but the situation was what about the father? well, father had to take some affirmative steps to put himself in a position where he could have a role essentially a veto power. >> and this father -- didn't the couple marry? mr. kneedler: yes, they did, but again, at that point he is not similarly situated to the mother either at the time of birth or at the time he legitimates. >> mr. kneedler, could i ask this question. if the court thinks this statute violates the equal protection clause, does it necessarily follow that the petitioner is entitled to the relief that was awarded to him by the second circuit? in other words, the granting of citizenship? mr. kneedler: it by no means follows. >> could you address that? we had a similar issue a few terms ago in the flores case but that was a criminal -- there what was at issue was a criminal con vick. here criminal convictions are not at issue. they have nothing to do with alien issues. correct? mr. kneedler: right, right. they were regular state law convictions. >> i take it that the thrust of justice alito's question is what is the remedy if we level up then it's easier for both, if we level down then it's harder for both. mr. kneedler: we think the court clearly should not apply to the u.s. citizen fathers the one-year limitation. the general rule, 1409-c is an exception to the general rule that governs the vast majority, the three categories of cases. married fathers, married mothers, and unmarried fathers. there is no reason to think that congress would have wanted married fathers to have a -- >> i'd like your opinion about it. how many do you think unmarried thers there were in 1952 who couldn't qualify under the long period of time, eight years, and that's not so hard to do if you're in the army because all your active duty counts. but they would have qualified at the one year. i used the numbers in your brief which are brilliant of you. i don't know how you found those. but that 4,000 number kept coming back. i thought maybe there were a couple thousand a year. but do we know there are more than a couple thousand? >> i thought you said untold numbers. >> untold numbers but that's true. they are untold numbers and then that's not told. i'm trying to find how close we could come. mr. kneedler: it is very hard court's te, but this decision in nguyen identified the number of people who travel abroad and the numbers are a little higher even now. like 70 million. >> let's go back to 1952 and the couple is unmarried and it's a father who, in fact, would qualify if he only had lived here for a year. but he wouldn't qualify if he had to live here for eight years before the babies born. never married the mother. okay. so i'm think whog could those people have been? maybe people working for american businesses or something and there weren't that many at that time. so i'm -- i used your 4,000 figure. mr. kneedler: we have wondered the same thing. the only thing we were able to identify and this is really not very closely on point, but the state department told us that today they grant approximately think 8,000 certificates of birth abroad and of those i think around 3,000 are under 1409-c, which means that those are the ones granted to u.s. citizen mothers abroad. the number of fathers who might benefit could be far larger. >> i'm sorry. were you finished? mr. kneedler: yes. >> we generally have a rule when we find an equal protection violation we level up rather than level down. that's been the court's consistent practice. wouldn't you agree? mr. kneedler: that's been its practice, yes, but the court has made clear that is not constitutionally compelled and there are compelling reasons here not to do that. >> well, i find one compelling reason to do it and i just thought i'd offer this up to you and see what you have to say. in this case, unlike in some cases, there really isn't a choice between leveling up and leveling down in one sense ecause if you level down, this party gets no relief. you say, you just apply it prospectively but then this party gets absolutely no relief. so isn't that a problem? isn't it kind of the same problem as justice harland recognized in welsh when he was dealing with the criminal matter? he said, you know, you can't level down because you can't give everybody the exact same benefit. so why don't we deal with that? mr. kneedler: well, several things. in this context in particular there are serious questions about whether the court can but at the very least substantial reasons why the court should not grant citizenship to someone, effectively grant citizenship to someone whom congress itself has not granted it. >> emphasizing the unconstitutional part of the statute. mr. kneedler: but it would have that effect. and in a situation like this, we think the only proper remedy given congress's plenary authority, is to apply the tenure rule to everyone and let congress address the problem. >> petitioner's parents had been married would he be entitled to relief? mr. kneedler: no. and that's the point. another point is there are other situations in which the court finds a constitutional violation but does not grant relief. the qualified immunity context or the exclusionary rule. the court might adjudicate a violation. >> if we were to level up, we would -- go ahead. if we were to level up the effect would be that petitioner would be given preference over someone who was similarly situated except for the fact that that person's parents were married. mr. kneedler: yes. >> if such a person were to then bring a suit, they would have a strong equal protection claim, would they not? >> i hesitate to say -- but that illustrates the problems of the remedies. >> the claim is gender discrimination and married parents both mother and father have been treated equally badly. but when they're unwed, the mother is given a preference and the father is not. so we're talking about equal protection not qualified immunity. you have two people similarly situated they have to be treated equally. the unwed father equal to the unwed mother and the married father equal to the married father. mr. kneedler: there are situations in which the court has found a constitutional violation but not granted relief. >> not really a situation lake this where we say oh, there is an equal protection violation and if we extend the benefit to everybody we can take care of that. we can remedy the problem. if we do not and level down the effect is that the party before us who has proved an equal protection violation gets absolutely no relief at all. mr. kneedler: i'd like to answer that quickly then reserve the balance of my time for rebuttal. i think it's also relevant in taking into account the remedy that this is not respondent's earned constitutional right but a third-party claim. there is no automatic right to raise the rights of third parties in this case. in this case the father. so i think that would probably be taken into account in deciding whether a remedy is feasible and what it would be. >> thank you, counsel. mr. broome? mr. broome: mr. chief justice and may it please the court. respondent's father was a citizen of the united states. holding other things constant, had he been the mother instead of the father, there would be no question that he transmitted citizenship to respondent under section 1409. the statute bars him from doing so on the same terms of the mother and is not based on any innate or biological difference between men and women or mothers and fathers. nor does it ensure an interest in reducing statelessness or nor does it serve an interest in reducing statelessness or ensuring that citizenship by dissent passes only to those children likely to learn american values. both of the government justifications for the gender differential here therefore fail. i'd like to begin by addressing the standard of review. there is no dispute here that respondent has third party standing to assert the equal protection claim of his father. that claim plainly is subject to intermediate scrutiny. in seattle vs. bell this court applied rational basis review to the claims of aliens seeking visas based on their relationship to u.s. citizen relatives. it is true as the government points out the plaintiffs included a u.s. citizen father but the court disagreed with the dissenting justices and with the plaintiffs that his equal protection rights were at stake. and there was never any question that the aliens in that case were not u.s. citizens. the the dispute was one -- dispute centers on a right of respondent's father to be treated equally to transmit his citizenship on the same terms a mother could transmit citizenship under section 1409. >> i would say at some point the problem that worries me the most is assuming this is unconstitutional you put the 14 years or whatever it is, 10 one year oth or the on both. i want to, because he does have a point. you put the one year on both and then you have when the parents are married it's the 10 years and when it's -- they're not married it's the one year. that really doesn't make much sense. but the -- so i'm -- i hope you'll get to that. it said actually the one-year requirement is tougher. and the reason it is tougher is the state department administers it. how they do this i don't know. i want to know if that's really true. they administer it to say if you are living in the united states you have to live here for one year and if you set one foot across the border to get a drink of water at niagara falls, you don't qualify. and, moreover, you have to prove that you never did set one foot to get a drink of water. well nobody could prove such a thing. so i'm interested in that word continuous and how it is actually administered. those are the two things that are worrying me in respect to remedy. >> justice, let me address the last question first. the word continuous i do not think is going to as a practical matter can't be applied in a way that somebody would have to come forward and prove they were in the united states for 365 days. they would not have to show proof they were actually in the united states on each of those days. >> i ask you that question. that is your answer and maybe if the solicitor general has time he could simply confirm that answer by saying yes. mr. broome: let me tell you how it was applied in this case. when we in the court of appeals the court remanded the case to the western district of new york for a determination on that very question. whether or not in order to decide whether the court should address the constitutional issue the court first asked whether respondent's father would have satisfied the one continuous year rule. we went to the western district of new york and the government ultimately stipulated that, yes, because we have evidence of respondent's father being in the united states in this case an outlying possession from his birth in 1900 till the date of his departure for the dominican republic in 1919, we will presume that there is a the least some period in there where he was in the united states for one continuous year. i think that presumption would apply in most cases. it certainly would apply in this case where we do not have to come forward and show proof that he was in the united states on every single day. but i think if the court were troubled that perhaps that rule could be harder for some fathers or some people to follow. an alternative remedy could be to leave both options on the table. >> if we leveled down and made it harder, would that affect the status of people who have obtained citizenship under the more lenient provision pplicable to the mother? >> i assume it could be prospective because once you have citizenship it's -- we have cases that can't be taken away. mr. broome: i would submit you can't -- >> so it would be prospective by reason of that doctrine. >> you could not apply a prospective remedy in this case. justice kennedy would not accept anybody whose citizenship was governed by the 1952 act. it would not affect respondent's father. anybody born between 1952 and 1986, to -- >> the problem mr. broome is the very inequality you are complaining of would remain. it is impossible to call back everybody else's citizenship so it is impossible to level down and the very inequality we've just found would remain. mr. broome: the government's remedy is no remedy. it would leave in place all the gender des crim nah tri effects caused by this statute. >> it's not that it doesn't give citizenship. it doesn't cure the inequality at all by leveling down or leveling up. mr. broome: that's right. the government position would have to be the same if this was a case of race discrimination. the government would have to y that, yes, the citizen statute discriminated on the basis of race, this could court would be powerless to correct the residual effects of that statute. we're not aware of any case in which this case said it is powerless to correct a case of race or gender discrimination or any equal protection violation. >> in most of the cases where a benefit was extended, to which the benefit was extended, the group was a smaller group than the group that always got the benefit. here if you add in married arents, then most people are under the more difficult rule 10 years or whatever it is. nd it's the smaller group that gets the benefit. you'd be ex-ing the benefit to a smaller group to a larger group. mr. broome: the remedy we propose would not affect marital couples. >> wouldn't you have an anomaly then that parents who are not married are preferred to parents who are married? mr. broome: it does appear at first there is an anomaly there but i would submit, justice ginsburg, that anomaly is built into the statute as we see it today. if you take the case of the unmarried mother, if she marries the father the day before the child is born, the 10-year requirement aplace. if she marries the father the day after the child is born, the one-year requirement applies. >> that's true but isn't it something else when we devise a remedy that deepens and extends an equal protection violation? mr. broome: i don't think the court would be extending the equal protection violation. >> it wouldn't be gender discrimination. mr. broome: it could possibly be a legitimacy discrimination. regarding cases discrimination against children of unwed parents, what is the standard? mr. broome: also intermediate scrutiny. >> haven't we said there would be a different level of scrutiny if the discrimination was against children born to married parents? would you make that argument? mr. broome: no, i wouldn't make that argument but i think that legitimacy claim could be brought by people today. people who are born to unmarried united states citizen mothers. >> children born to unmarried mothers but not to children who are born to unmarried fathers. you would extend the problem. you would have this court extend the problem. mr. broome: the same thing could be brought today. the only difference is whether or not it could be brought by the child of the mother or a father. but i think if you go to the heart of the equal protection violation here the fact that there may also be a legitimacy discrimination going on does not eradicate the equal protection violation. the two similarly situated classes here are unmarried united states citizen fathers and unmarried citizen mothers and it could be, justice scalia, that congress had good reason for treating nonmarital children more leniently at least in the case of mothers than marital children because historically, nonmarital children were a much more vulnerable class. they didn't have the same kind of rights. there could be logical reasons for -- >> you think that was congress's intent in 1952? >> i think in 1940 when this -- >> in 1940, you think that was congress's intent? >> congress's intent what we have seen from the historical records. when the statute was passed, nonmarital children being separated at the border from their parent. congress assumed or officials who drafted this statute assumed the guardian parent was always going to be the mother. >> you can concede of members 2, we gress in 1940 or 195 need to discriminate against the children of married parents and against the children of unmarried parents. >> no, i don't think that was what was going on at all. >> one thing, they were giving a benefit to the unmarried mother. they thought she was different from the others. >> they presumed -- it is a reflective assumption that the mother at that time, it was a reflective assumption, i don't think it was true today that the mother was the guardian parent. they want to make sure that the physical presence requirements, have the impact or separating -- nonmarital child from >> suppose there were statistics that would indicate that over $100,000 new citizens would qualify or new persons would qualify for citizenship if we adopted leveling up, would that affect -- should that affect our decision? >> i don't think it should. >> play the game. >> ultimately i think the court has to decide whether or not there equal protection violation here. >> don't we have to consider what the congress likely would have intended? >> yes. i think what the record shows is that given congress's purpose here, in fact, if you ticket the purpose that we have argued was the purpose of section 1409 and the purpose that the government has argued, both of those purposes are served by the remedy we proposed by extending the benefits to unmarried fathers. would leveled up, how that affect children who were born to a citizen father who was previously denied citizenship, could they come in and claim citizenship now? >> only if it satisfied all of the other statutory requirements. >> which means the answer is yes. >> yes, if they satisfied the other statutory requirements. >> the continuous one year. >> and the legitimacy. >> more than that, i think it would be first the father would have had to have sired the child abroad, would have had to recognize the child and would have had to support the child. >> that's correct. we're talking about a fairly limited class here, justice ginsberg. i would like to turn to the government's argument about the u.s. connection interest. >> before you do that, mr. broome, just on the remedy question, very occasionally this court has faced a situation when the natural remedy of something that it is holding, that we're concerned a little bit about whether congress would prefer a different remedy. for example, on the northern pipeline case, what he can did n a situation like that was we stayed it for a period of time of time and allowed congress to do it a difficult way if it wanted to. had you considered that possibility here that we could order a leveling up judgment but stay it for some period of time so that congress could decide whether it instead preferred some other way of dealing with the problem, whether that would be appropriate. >> i think, justice kagan, first and for most, the court needs to remedy the vyings suffered by the parties. if the court were to level up and make respondent a citizen and then stay the judgment thereafter, i think potentially that could work, but certainly -- >> relief would have granted to this person, not some kind of class action? >> ultimately the court has to decide, it has to remedy equal protection violation before it and not be thinking about, well, it is not trying to remedy any equal protection violation only in the future. that's the fundamental problem with the government's remedy, it can only apply to unborn children and future parents and would have no impact on anybody who is affected by the statute issued before the court today. >> justice kagan's suggestion, congress apparently should have villar re after the case but -- >> what we have seen since the date the discriminatory provision was enacted in 1940, congress has consistently reduced the burden on fathers, so i think if the question is what would congress do today, congress has shown that it is continuously reducing the physical presence requirements and the age cally abrasion component of it -- calibration component -- >> opening that argument, it seems to me, they have considered the issue several times. at no point did they take the step of eliminating it. >> that's correct, mr. chief justice. they also haven't been confronted -- the last time that congress considered the statute was in 1996 and an equal protection challenge to these physical presence requirements was not made until the case -- >> why did you use the word today? i thought we were supposed to go back and figure out if they had known that it was unconstitutional to give the unmarried woman a year requirement to live in the united states, but to give the unmarried man where he is a citizen eight years requirement . they had known it was unconstitutional then, what would they have done then? is it then or is it now? >> it's a lot easier for you if it's now, i think, but which is it? is there anything, i mean, you know you're not going to help me if you just say that, that's in your interest to say. is there anything that you could point to that would say it's now and not then? >> well, as a practical matter, i think that if the question is how would congress remedy this statute, it can only be remedied by the congress sitting today. >> that's not the question. the question is what did the congress that passed this statute intend? >> i think the answer to that, well, the question is how congress -- if the question is how did the congress that passed this statute, how would they remedy today, then i think the answer -- >> sir, how would they remedy that statute -- >> what would their understanding be about the appropriate remedy when they passed the statute? >> the answer to that, mr. chief justice, they were concerned that the physical presence requirements would create a significant burden on marital children and that is why they lowered the requirements for the mother because they presumed the mother was going to be the guardian and they presume that the child should stay with the mother and didn't want the physical presence requirements to create further burden on that child, that relationship. the court in 1952 do is strange in this context. the court, how it's sitting then, took gender baselines for granted. >> that's right. i think, if i could finish the hief justice's question, it is not clear at all that the 1940 congress would have chosen to just sever the 1409 c entirely and i think it would be just as destructive of congress's intent to withdraw a benefit that congress plainly intended to confer than it would be to extend the benefit that perhaps congress did not -- >> so do i understand you to agree that when we approach these questions, that we do look what the congress and the time when they passed the law would have done? >> i'm not sure if there is a clear answer to that, mr. chief justice. i think if the court would look at what congress would do today and what congress has done in the decades since. >> do you find any case that supports -- >> no, i haven't. >> find any case against it? >> no case for or against it. >> you'll find lots of cases when we address this question that talks about the intent of the congress to pass the statute, i think. >> certainly there are plenty of cases on that, mr. chief justice -- >> i don't think there are any, you haven't found one and i don't think anyone could find one that would say when we're looking at a question of congressional intent and a question of this, we look at what a congress 60 years later would have thought. >> if we were looking at -- >> is that true? is that true of, say, wes scott hen they, the category was employed father and it was enlarged to include unemployed the s or is it true, social security cases when what congress did when it did it is just a piece with everything where the man was the dominant person in the family and the woman was the subordinate person. so to say you want to go back to a congress that had that mindset, then that's what they would have done. >> it is difficult and -- >> well, then don't pretend that you're implementing congress's intent when you say we're going to put in place, talking about a remedy, not in terms of finding a violation, don't pretend that you're implementing congress's intent when you look at a congress 60 years later would do. >> mr. chief justice, when you're rendering a gender discriminatory statute by leveling up or down, you are not implementing congress's intent -- >> you would ask what they would have wanted if they couldn't make this discrimination. well, if you have to go back to 1952, they either to have to take the benefit away from the woman or give to the men. the two principals that support you is congress hates taking away a benefit they give anybody. they get into a lot of trouble when they take benefits away. so that would move them in one direction. it would also move them in the same direction if they're just a handful of them. they might benefit. if there were millions of men who might benefit, then they might get a little worried what they're doing particularly because they're discriminating even more the other way against the married couple. that's why i was interested in those questions. i take it you have said pretty much what you can say on that? >> as to congress's intent, yes, justice breyer. >> the number of people, all you can say is they would have to meet a lot of requirements that you would have to be a u.s. citizen, sired a child abroad, recognize that child, support that child. >> we are talking about a fairly limited class. this is just children born outside of the united states to unmarried united states citizen fathers who cannot satisfy the 10ier requirement, but they can save the one-year requirement. they're in that period. >> assuming just ginsberg point that the father has to legitimize the child without marriage. if they marry the mother, they would end up having to fulfill the five-year, so are you accepting her proposition that the father has to legitimize the child? >> we're not challenging the requirement.on i think in this case they could be, because this is a different requirement than what was at issue in the wynn case. the court addressed a personality acknowledgement requirement. that is a minimal burden for the father to satisfy. he is not similarly situated with respect to biological proof of his relationship with the child. the requirement that he then come forward and take some affirmative step to devastate that by acknowledging the child, that satisfies the scrutiny. here we are talking about a legitmation requirement, as the historians have pointed out, when it really meant marriage, then that is a much more significant burden placed on the father because the father may not be able to -- may not be able to satisfy the requirement at all, for example, if the mother is not available, she doesn't want to marry the father or -- >> or if she is already married. >> or if she is already married. >> 8 u.s.c. 1409 c, doesn't say a word about legitmation. >> it's in 14098. >> it doesn't apply, notwithstanding subsection a. notwithstanding subsection a, somebody whose born outside the u.s. out of wedlock shall be held to be required at birth the nationalality stated of his mother if his mother is a u.s. citizen and had been physically in the united states for one year. i don't see anything that says they have to be legitimized for the mother to get that. applies only it after there has been -- >> 1409 a and the first words of c.r. notwithstanding the provision of subsection a. i guess i can figure it out later. >> let me see if i can try to help you, justice breyer. the remedy from the court of appeals, as 1401 a 7 which is the physical presence requirement, the 10 and five-year physical presence requirement, the court of appeals, that applies through 1409 a. 1409 a is the provision that applies to father. the remedy is to apply the one-year continuous rule to 1401 a 7 as it applies through 1409 a. that would put mothers and fathers on equal footing with respect to the physical presence requirements and then the legitmation requirement still applies to fathers. if i could address the government's u.s. connection interest in my time remaining. the statute here bars a u.s. citizen father under the age of 19 from transmitting citizenship to his foreign born child even if the father spent his entire life in the united states up until the day the child is born and even if the father legit mates the child and seeks to raise the child in the united states. by contrast, the statute automatically confers citizenship on a child whose u.s. citizen mother spent only a year of her life at any point in her life, even during infancy and even if the mother marries the alien father and then the child is raised by the mother and the alien father. it is impossible to view a statute that permits these results as related to a u.s. connection interest. i would submit, your honor, that the interest does not justify the discrimination either. there is no dispute that the statute creates a risk of statelessness for children born abroad for fathers, legit mate their children but cannot satisfy the 10 and five-year physical presence requirement. the statute confers citizenship on a child born abroad to an unmarried united states citizen mother, even if her child faces no risk of statelessness at all because the child is born in a country that assigns citizenship by virtue of being born there. >> we aren't leaving children uncovered whose mother has not had a continuous onier residency in the united states, even though that mother may be an american citizen. >> that's right. my point is that her child may have no, face no risk of statelessness at all and yet the statute still confers citizenship -- >> the mother can only pass on citizenship if she has been in the united states continuously for one year prior to the birth of the child, correct? >> that's correct. >> so what happens to a citizen mother who can't meet that one-year requirement? what happens to her child? >> that child could be stateless. >> so there is a risk of statelessness no matter what? >> there is a risk of statelessness, but that risk of statelessness is created by these physical presence requirements that congress chose to impose, whether it's the mother or the father, the risk is greater with respect to the father's. it is lesser with respect to the mother's. ut it is the physical presence requirements and the scheme cannot be justified as seeking to reduce a risk of statelessness. if the court has no further questions, thank you. >> thank you, counsel, three minutes. >> thank you, mr. chief justice. first on the merits, the provision here is two substantial governmental interests. at the time the child is born and the mother is a recognized parent, it's uncertain whether the child will ever be legit mated, congress has a substantial interest of conferring citizenship on that child at birth if it concludes there is a sufficient connection to the united states. congress also has a substantial interest in by divesting that child of citizenship if the child was later legit mated by an alien father. there are two substantial interests that are furthered and it is tailored to take care of those two interests. >> your concern about stateless children in the world, then you have a problem with the father who can't transmit his citizenship in a country where women citizenship goes by who is the father. >> if the father later legit mates, he is put in the same position as if they were married at the time the child was born and we know from 1401 that that is a -- >> today there are lots of fathers who do look after their children. i don't say they do it perfectly, but they try. just the words you said, the same words, just put in father instead of mother and today why is it any different? >> it isn't different. i just want to repeat again, when the father legit mates, there are two parents. >> i'm not talking about legitimacy. i'm talking about the ones, surprising number of people unfortunately never get married and a lot of them do live abroad and they do have children. that's my focus, the words applied where it was the mother and couldn't you put the same words and apply it where it is the father? >> i think it's a critical importance in citizenship laws to have a legal occurrence in order to pass citizenship and that's legitmation. your suggestion that the father could pass on citizenship without even legitmation which this court basically sustained -- >> does it say that? >> this is a question of remedy nd to -- but and also if the father filed a notice or filed a document and got notice of the proceeding, he didn't get the veto power that the mother got before legitmation. he got to be a parent, too. that's what happens here when the father legit mate. he is not put in the same position as the mother, two parents, a two parent family. with respect to remedy, page 38 of our brief where statelessness is addressed, it's clear that congress wanted to insure that the child would have citizenship at birth and not be divested. >> thank you, counsel, the case is submitted. announcer: we have a special web page at c-span.org to help you follow the supreme court. once on our supreme court page, you'll see four of the most recent oral arguments heard by the court this term and click on the view all link to see all of the oral arguments covered by c-span. in addition, you can find recent appearances by many of the supreme court justices or watch justices in their own words including one-on-one interviews in the past few months with justices kagan, thomas, and ginsberg. there is also a calendar for this term. a list of all current justices with links to quickly see all -- current justices as well as many other supreme court videos available on demand. follow the supreme court at c-span.org. next, a look at the role professional athletes have in advocating for social justice. speakers include baltimore ravens tight end -- benjamin watson and representatives from the players association and afl-cio. they discuss the protest being led by: and -- colin kaepernick and labor unions. this is two hours. >> good evening, everyone. >> good evening. >> you will have to be