Supreme Court ruling a victory for motherhood and sexism By Joanna L. Grossman FindLaw Columnist Special to CNN.com

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ALSO   • Tuan Anh Nguyen et al. v. Immigration and Naturalization Service   •  United States v. Virginia et al.   • Trimble v. Gordon, 430 U.S. 762

(FindLaw) -- Last week, the Supreme Court, in the case of Nguyen v. INS, upheld a statute that explicitly treats mothers and fathers differently. The Court's decision to condone Congress' blatant sex discrimination is remarkable.

The statute governs the acquisition of United States citizenship by children born abroad to unmarried parents, with only one of the parents a U.S. citizen. Under the statute, U.S. citizen-mothers who have lived for at least one continuous year in the United States automatically transmit citizenship to their foreign-born children at birth. But to bring about the same result, U.S. citizen-fathers and their foreign-born children must do much more.

The father must agree in writing to provide financial support until the child reaches the age of 18. The child must prove the existence of a blood relationship by clear and convincing evidence, and must also obtain formal recognition of paternity before he or she turns 18.

Tuan Ahn Nguyen and his American father, Joseph Boulais, failed to fulfill these technical requirements -- but nevertheless they are, in every way, father and son. Nguyen was born in Vietnam in 1969. His Vietnamese mother abandoned him, but his father, Boulais, openly acknowledged paternity, and supported and raised his son, taking him back to Texas with him.

Nguyen no longer has any meaningful ties to Vietnam. Nevertheless, in the eyes of the law, Nguyen is not a U.S. citizen, but a Vietnamese alien. As a result, his two recent criminal convictions will, for him, result not only in a prison sentence but also in deportation to Vietnam - a country to which he is a complete stranger.

Equal protection: The means must fit the end

Had Boulais been a woman, and not a man, Nguyen would be a citizen now. That is sex discrimination, and specifically, a violation of the Constitution's guarantee of equal protection of the laws. Nevertheless, the Supreme Court upheld the statute.

The Court applied "intermediate scrutiny," which requires both that Congress had an important governmental interest in mind, and that the means it chose to accomplish its goal were substantially related to that interest.

The Court held that Congress had two important interests. First, it had an interest in weeding out false paternity claims. Second, it had an interest in ensuring that if a foreign-born child is to become a citizen, he and his American parent must have had "some demonstrated opportunity" to have a meaningful relationship.

The Court was reasonable to recognize these interests as important. But it was wrong to sanction blatant sex discrimination as a way to achieve them.

Consider the first interest -- in weeding out fraudulent paternity claims. This interest is fully addressed by the statute's "clear and convincing evidence" requirement, which Nguyen does not challenge. Especially given the sophistication of today's DNA testing, this provision should be enough.

The extra requirement that paternity be adjudicated before the child's eighteenth birthday makes little sense. Here, the means Congress chose bears little, if any, relationship to the goal it tried to accomplish.

Recently, in United States v. Virginia, the Court struck down the male-only admissions policy of the Virginia Military Institute (VMI). In that decision, the Court required almost a perfect fit between the state's purported interest and the discriminatory mechanism used to achieve it. The same requirement of fit should have been fatal to the statute at issue in Nguyen.

What about the second interest, in ensuring meaningful child/parent ties? Again, the interest itself makes sense, but the statute's means do not sufficiently fit.

The Court held that for mothers, Congress could simply presume the opportunity for a meaningful relationship with the child, based solely on the "biological inevitability" that the mother be present at birth. But for fathers -- who might be men in the armed services sowing their wild oats while on furlough, and who might not even attend the birth -- the same presumption could not be made.

Of course, the presumption itself is sexist, the result of archaic stereotypes and generalizations. It ignores the mothers who, like Nguyen's own mother, abandon their children at an early age. It also ignores the fathers who, like Nguyen's father, establish strong ties with their sons. Had Boulais acted exactly as he did (or even much less honorably), but been a woman, Nguyen would be a citizen now.

If Congress had truly wanted to make sure parents could only confer citizenship on children with whom they had a "demonstrated opportunity" to develop a relationship, it could simply have required an evidentiary showing to that effect.

Nguyen's effect

Nguyen may have a significant effect as a precedent. Today, it is rare for statutes explicitly to treat men and women differently. But there are several instances where they do.

With respect to adoption, unwed fathers in these states are only entitled to due process rights before another family can adopt their children, if they have had their paternity formally recognized. And inheritance laws often similarly discriminate against fathers.

In 1977, in Trimble v. Gordon, the Supreme Court struck down a then-typical inheritance statute that permitted out-of-wedlock children to inherit only from their mothers. But the Court in that case did not require-nor has it since-that states treat unwed mothers and fathers equally. Today, some states continue to differentiate between unwed mothers and fathers by requiring that unwed fathers jump through hoops - not unlike those required by the statute at issue in Nguyen - if they want their children to be able to inherit their property.

The feminist agenda

Nguyen v. INS is the most recent in a long line of cases where women's advocates -- in this case, NOW Legal Defense and Education Fund -- have represented male plaintiffs to challenge sex discrimination. One might at first be surprised that NOW LDEF challenged a law that recognizes a special mother/child bond. But, as the late Justice Brennan once pointed out, sometimes laws that appear to put women on a pedestal actually put them in a cage.

Romantic ideals about the uniqueness of motherhood perpetuate the notion that women, rather than men, should assume responsibility for children. They also contribute to negative stereotypes that diminish women as workers as workers, wage earners, and participants in public life.

Finally, these ideals of motherhood establish and perpetuate, in converse, a less than ideal concept of fatherhood, in which it is "natural" for fathers to shirk responsibility. Yet fathers like Boulais, who disprove this concept, are the ones who will further feminism. Women should fight for their equality, too.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects.

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