Unwed mother, a married mother equal to the married father. My only point was that their situation which the court is not a constitutional violation but not granted relief. But not really a situation like this. Not a situation where we say theres an equal protection violation and if we extend the benefit to everybody, we can take care of that equal protection violation, we can remedy the problem. But if we do not, if we try to level down, the effect of that, the party force was proved and equal protection violation gets absolutely no relief at all. I think its relevant and taking into account the remedy that this is not respond its own constitutional right. Its a third party claim. Theres no automatic right to raise the rights of third parties come in this case the father. So they dont probably be taken into account in deciding whether or remedy at all is feasible and what it would be. Think, council. Mr. Broome . Mr. Chief justice, and it please the court. Response and father what he says of the 20. Holding other things constant, that even the mother and stepfather, there would be no question that he transmitted citizenship to respond under section 14 tonight. A statute bars them from doing so on the same terms of the mother is not based on any innate or biological difference between men and women are mothers and fathers. Nor does it ensuring interest in reducing statelessness, nor does it serve an interest in reducing statelessness for ensuring that citizenship by dissent vassal to his children who are likely to learn american values. Oath of the governments justification for the gender differential adheres therefore fail. I would like to begin by addressing the standard of review. There is no disput dispute that responded as third party cynic to assert equal protection claim of his father. That claim plan is subject to intermediate scrutiny. In fiallo v. Bell, the court applied rational basis for you to the claims of aliens who are seeking visas based on the relationship to your citizen relative. It is true that the planes and cleared a u. S. Citizen father, but the court disagreed with the dissenting justices in with the plaintiffs that is equal protection rights were at stake. There was never any question that the aliens in the case were not u. S. Citizens. Hear the dispute centers on a right of respondents father to be treated equally to transmit his citizenship on the center of the 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 years on both or the one year on both . Because he does have a point. You put the one you on both and then you have, when the parents are married, its 15 years. When theyre not married its the one year and it really doesnt make much sense. So i hope you get to that. In the course of that i read and amicus brief that bothered me a lot innocent actually one year requirement is tougher. Ththe reason its tougher, says the state department administers it. How they do this, i dont know, and wanted if thats really true. But the administrative to say that if youre living in the United States you have to leader for one year. If you set one foot across the border to get the trick of water at niagara falls, you dont qualify. You have to prove that you never did set one foot to get a drink of water. Nobody could prove such a thing. So im interested in that word continuous and how it is actually administered. Those are the two things that are worrying me in respect to remedy. Let me address the last question first. The word continuous i do not think as a practical matter, it cant be applied in a way that somebody would have in a way that somebody would have to comport improve their in the United States for 365 days. They would not have to show proof that they were in the United States on each of those days. That is your answer, and maybe at the solicitor general has time, he could simply confirm that answer by saying yes. Let me tell you it was applied in this case. When were in the court of appeals, the Court Remanded the case to the Western District of new york for a determination on that very question. In order to decide whether the court should address the constitutional issue, the court first asked whether respondents father wouldve satisfied the one continues you will. We went to the Western District of new york and the government altar boy stipulated that yes, because of evidence of respondents father being in the United States from his birth in 1900 until the date of his departure for the Dominican Republic in 1919, we will presume that there was only some period in their where he was in the United States are one continues you. I think the presumption would apply in most cases. It certainly would apply to this case that we would not have to comport and show proof that he is in the United States on everything they. I think if the court were troubled that perhaps that will be harder for some fathers or people to follow, but an alternative remedy to be truly both options on the table. If we level down and made it harder, would not affect the status of people who ive gained citizenship under the more lenient provision applicable to the mother . If this court applied the leveling down remedy in a way that would actually equalize the two similarly situated classes here, yes, it would impact people dramatically because they would take citizenship away from people who already have it. And the court has held its not necessary. I served to be prospected because once you have citizenship, we have cases that say it cant be taken away. Right. So it would just be prospected the reason of that doctrine. You could not apply a prospective remedy in this case because it would not affect anybody whos a citizenship was governed by the 1952 act. It would not affect respondents father. Anybody was born between 1952 19521986, if the the problem isnt a, that their inequality your complaining of would remain, because its impossible to claw back everybody else a citizenship. So its really impossible to level down. The very inequality that we have just found would remain. Thats right. The governments proposal, the prospect of remedy is no remedy. It would leave in place all of the gender discrimination effects caused by the statute. But its not just that it doesnt give you citizenship. Its that it doesnt to the inequality at all, whether by leveling down or by leveling up. Thats right. Hybridi would spend the governms position would have to be the same if this was a case of racist commission. The government would have to say that yes, it does citizenship statute discriminated on the basis of race, this court would be powerless to correct the residual effects of that racially discriminatory statute. We are not aware of any gate of which this court has said he is powerless to correct the case of race discrimination or gender discrimination and equal protection violation. What about the argument that in most of the cases where a benefit was extended, to which the benefit was extended was a Smaller Group than the group that already got the benefit, and here, if you add in married parents, then most people are under the more difficult rule, 10 years or whatever it is, and its a Somalia Group that gets the benefit. Smaller group that gets the benefit. Right. So you would be extending a benefit enjoyed by a Smaller Group to a larger group. We are not asking or the remedy we would propose, justice ginsburg, would not affect marital couples, and the government has pointed but wouldnt have an anomaly been that parents who are not married are preferred to parents who are married . It does appear at first that there is an anomaly there, but i would submit that that anomaly is built into the statute as we see today. If you take the case of the unmarried mother, eve she marries the father the day before the child is born, a 10 year requirement applies. If she breaks the father the day after the child is born, the one year of lies. Thats true but isnt it Something Else when we devised the remedy that deepens and extends an equal protection violation . Have we ever done that . Well, i dont think the court would be extending the equal protection violation. Whatever it is, it wouldnt be gender discrimination. It could possibly and legitimacy Just Commission i think it would be a legitimacy discrimination. What are the subject to, the past cases have involved discrimination against the children of unwed parents. What is the standard of review . Is also intermediate scrutiny. Have ever said it would be a different level of scrutiny if the discrimination was against children who were born to married parents . Would you make that argument . No, i would make that argument. I think that legitimacy claim could be brought by people today, people are born to unmarried United States citizen mothers. But to children who were 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. Problem. That same claim could erupt today. The only difference is whether or not it could be brought by the child of a mother or a father. I think if you go to the heart of the equal protection violation, the fact that it 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 United States citizen mothers. It could be that congress had good reasons for treating nonmarital children more lenient lane, at least in the case of mothers, van marital children. It has historically nonmarital children were and much more vulnerable class. They were the bastards, the illegitimate. They didnt have the same kind of rights until 1940, in fact they didnt have a statutory right to citizenship. Dookie b logical reasons for and you think that was Congress Intent in 1952 . I think in 1940 when this in 1940 think that was Congress Intent. I think that in Congress Intent is that in 1940 when Congress Passed the statute, it was concerned about nonmarital children being separated at the borders from their guardian parents. The problem is that congress to assume over the admission officials who drafted the statute assumed that the guardian parent was always going to be the mother. You can conceive the possibility of members of congress in 1940 or 1952 taking the floor and arguing we need to discriminate against the children of married parents, and in favor of the children of unmarried parents . No, i dont think thats what was going on at all. The one thing i think is a word to be a benefit to the unmarried mother. Thats correct, justice ginsburg, and because they thought she was different from the unmarried father. Thats a reflexive assumption that the mother at the time, a reflective assumption, i dont think its true today, but that someone was going to be the guardian parent and a word to make sure that the physical presence requirement that congress is passing were not going to have the impact of separating that nonmarital child from a who they presume to be the parent. Suppose there were some 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 dont think it should because at the end of the and outside would gain 200,000. Ultimately i think the court has to decide whether or not there was an equal protection violation. Do we have to consider what the congress likely would have intended . Yes, i do think what the record shows is that Given Congress is the purpose, if you take either the purpose that we have argued was the purpose of section 1409, and the purpose that the government has argued, the statelessness purpose, both of those purposes are served by the remedy we propose, by extending the benefits to unmarried fathers. If we leveled off, how would that affect children who were born to a citizen father, who were previously denied citizenship, could they come in and claim citizenship no . Old if they satisfied all the other statutory requirements. Which means wax the answer is yes speak with yes, if the satisfied it continues one year. More than that i think it would be at first the father wouldve had to have sired this job abroad, would have had to recognize the child, would have had to support the child. Thats correct, yes. I dont think were talking about a fairly limited class. I would like to turn to the governments arguments about the u. S. Connection interest. Before you do that, just on the remedy question. Very occasionally this court has faced the situation when the Natural Remedy of something that it is holding. We were concerned a little bit about whether congress would prefer a different remedy. So, for example, in the and pipeline case what we did in a situation like that was we stayed our judgment fort hood of time and allowed congress essentially to do it a different way if it wanted to. Im wondering whether you have considered that possibility, that we could order a kind of leveling of judgment that stay it for some period of time so that congress could decide whether its instead prefer some other way of dealing with the problem. Whether that would be appropriate spirit i think first and foremost the court needs to remedy the equal protection violation suffered by the parties. If the court were to level up and make responded, respond to a citizen and then stay the judgment thereafter, i think potentially that could work. But certainly the relief wouldve been granted to the person that this is not some kind of classaction. Right. Ultimately the court has to remedy the equal protection violation before and not be thinking about well, it is not try to remedy an equal protection violation only in the future. I think that is the fundamental problem with the comments remedy is that it could apply to unborn children and future parents and would have no impact on anybody who is affected by the statute at issue before the court today. Justice kagan suggestion, congress apparently should have been aware of this after our case but they were so horrific. What we have seen, justice kennedy, is that since the date that this discriminatory provision was first 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 continually reducing the physical presence requirements and the age calibration component of it so that it precludes the transfer of citizenship. That argument seems to me that, nor did they have considered the issue several times and at no point did they take the step of eliminating it. Thats correct, mr. Chief justice, but they also havent been confronted with the last Time Congress considered the statute was 1986, and an equal protection challenge to these physical presence requirements was not made until the florez v. Our case. Why did use the word today . I that were supposed to do, 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, had to give the unmarried man what he is a citizen eight years requirement. What would they have done then . Is event or is it now . Is a lot easier for you if it is now i think. But which is it, is there anything, i mean, you were not could help if you just say that because thats in your interest to say. Is there anything that you could point to that would say its now and not been . As a practical matter, i think that if the question is how would congress remedy the statute, it can only be remedied by the Congress Sitting today. But thats not the question. The question is what to the congress that passed this the se intended . I think the answer to that, the question is how the congress would pass, if the question is how did the congress that passed the statute, how would they remedy it today, then i think not how they would remedy story. How would they what would understand have been about th appropriate remedy when they passed the statute . I think the answer to that is 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 presum present a ms going to be the guardian and they presumed that the child should stay with the mother. They did what the physical presence requirements to create for the burden on that relationship. What the court, the congress in 40 or 52 would do is strange in this context because the Congress Sitting then took genderbased lines for granted. Thats right. I think if i could just th sortf finished the chief justices question, it is not clear at all that the 1940 congress would have chosen to just sever the 1409 entirely. I think it would be just as distracted of Congress Intent to withdraw benefit that congress plane intended to confirm that it would be to extend the benefit that perhaps congress did not so do i understand you do agree that when we approach these questions, that we do look at what the congress at the time when the past love would have done . Im not sure if theres a clear edge to that, mr. Chief justice. I thin think think the corporata congress we do today and what congress has done in the decades since. Did you find any case which supports that . No, i havent. Did you find any case against . No case for iraq instead. Were going to buy lots of cases waitress this question that talks about the intent of the congress that passed the statute. There are plenty of cases on that. I dont think there are any, you havent done what kind i dont think anyone could find one. Lets say we will look at it can question of congressional intent and the question of this, we look at what the congress 60 years later wouldve thought. Is that true of, say, wescott when the category was unemployed father and was enlarged to in include an appointment is . Is a true of goldfarb, the Social Security cases, what congress did when it did was just a piece with everything where the man was the, person and family and the woman was the subordinate person. So to say we want to go back to a congress that had that mindset and asked what they would have done is a little hard. It is difficult, and well, and dont pretend that you implement in Congress Intent when you say were going to put in place we were talking about a remedy, not in terms of finding a violation. Dont pretend that your implement in Congress Intent when you look a what congress, a congress 60 years later would do. When youre remedy a gender discriminatory statute by leveling up her love again, youre never everybody Congress Intent. Thats true but you can ask what would they wanted if they knew they couldnt make this commission was thats what i thought it had to go back to 1952, they will either to take the benefit away from the woman or give it to the name. And the two principles that support is congress hates taking away benefit they did anybody. They get into a lot of trouble when you take benefits away. So that would move them in one direction. It would also move them in the same direction if you are just a handful of them who might really benefit. Thats why ask that question but nobody, but if there were millions of men who might benefit and they might get a little worried about what theyre doing, particularly since theyre discriminating even more the other what against a married couple. So thats what i was interested in the questions. But i take it gets it party much what you can say about. Has to Congress Intent, yes, justice breyer. All you can say is they would have to meet a lot of requirements that you would have a u. S. Citizen desired a child abroad, recognize that child, supported a child, and right. We are talking about, i think, a fairly limited class. This is just children who were born outside of the United States to unmarried United States citizen fathers who cannot satisfy the 10 year requirement, but they can satisfy the one year requirement. So theyre somewhere in that nineyear period. Perhaps you are sending Justice Ginsburgs point that the father still has to legitimized a child without marriage. Because if they married the mother, they would end up having to fulfill the five year. So it would have to be, are you accepting the proposition that the father has to legitimatize the child . We are certainly not challenging the legitimization requirement. Thats statutory and also the support requirement. They may be indefinitely challenge of all, but they are. I think in this case they could be. This is a different requirement and what was at issue in the other case. The court addressed the paternal acknowledgment and said that is a minimal burden for the five year set aside. He is not similar situated with respect to biological proof of his relationship with the child but the requirement then come forward and take affirmative steps to demonstrate that by dodging the child, that satisfy intermediate scrutiny. But you were talking about legitimization requirement. At its nastiest winter pointed out, the historian and because brief points out, that legitimation really meant marriage. Then that is a much more significant burden placed on the father because the father may not be able to satisfy the requirement at all. For example, if the mother is not available, if she does want to marry the father, or if she is dead. Or issues already married. Or issues already married. Where is the legitimization requirement . It doesnt say a word about legitimation. Ensign 1409 a. It doesnt apply to incest notwithstanding. Spent and so speed notwithstanding, somebody was born outside the u. S. Out of wedlock shall be held to required at birth nationality status of his mother is a mud as a u. S. Citizen and have been physically in the United States for one year. So i dont see anything that says they have to be legitimized for the mother to get that. In 1409a it applies only after theres been 1409a, notwithstanding the provision of the subsection. Anyway, i guess i could figure it out later. Let me see if i can try and help you, justice breyer. The remedy imposed by the court of appeals as the physical presence requirement, the 10 and five your physical presence requirement, the court of appeals, that applies through 1409a. 1409a is the provision that applies to fathers. A remedy would be to apply to one continues to your role, and i grant you this is complicated, as it applies through 1409a. That would put mothers and fathers on equal footing with respect to the physical is private. The. The legitimation requirement still applies to fathers. But if i could address the governments u. S. Connection interest in my time remaining. The statute here absolutely bars a u. S. Citizen father under the age of 19 from transmitting citizenship to his foreignborn 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 legitimates the child and seeks to raise the child in the United States. By contrast, the statute automatically confer citizenship on a child hoosiers citizens mother spent only a year of her life at any point in her time, 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. Because she is born as a child is born in a country denied citizenship by virtue of being born there children uncovered whose mother has not had a continuous one year residency in the United States. Even though that mother may be of american citizenship. Thats right. My point is her child may have, may face no risk of statelessness at all and yet the statute filled confers citizenship. Some others can only pass on citizenship if shes been in the United States continuously for one year. Prior to the birth of just the child, right . What happens to a citizen mother who canee
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