High Court Weighs Case of Bias Against Dads

Justices hear dispute today between foreign-born daughter of an American serviceman and US rules on citizenship.

It's an old story with a new twist: When American serviceman Charlie Miller was stationed in Angeles City in the Philippines in the 1970s, he met a local girl. He fathered a daughter. He never married the mother.

Now the daughter, Lorelyn Peero Miller, wants United States citizenship, on the basis of dad's nationality. But her quest puts her at odds with a US law that gives fathers less status than mothers - a dispute that has wound up today before the US Supreme Court in an unusual and testy gender-discrimination case.

If Ms. Miller's mother were an American, the daughter could claim citizenship by age 21. No strings attached. But under a State Department policy for out-of-wedlock parents, fathers must prove a relationship with their foreign-born children by producing six different types of documents, including letters of commitment to support the child and proof of fatherhood.

The case, Albright v. Miller, pits new views about the roles and legal status of the sexes against a policy the federal government says is a practical way to implement immigration policy today. It is one of the first significant gender cases since the historic high court ruling in 1996 requiring the all-male Virginia Military Institute (VMI) to admit women.

If the high court should back Miller's claim that the policy violates the equal-protection clause of the Constitution, the number of eligible candidates for US citizenship from abroad would increase.

In 1992, Miller applied to be an American citizen. Soon after, Charlie Miller claimed paternity, and a Texas court ruled he is indeed Lorelyn's father. When the US denied her citizenship application, the case went through a series of federal appeals - finally taking shape as a claim against a law that distinguishes between mothers and fathers of foreign-born children. That law is established by Congress and upheld by a 1970s high-court ruling called Fiallo, which backs a different approach for fathers than for mothers of children born abroad out of wedlock.

Ruling on the Miller case, the US Court of Appeals for the District of Columbia upheld Fiallo, but not with enthusiasm. In a concurring opinion, Judge Patricia Wald articulated a leading view among many jurists, who may well include Justice Ruth Bader Ginsburg of the high court: "It is important to underscore the extent to which Fiallo is out of step with the court's current refusal to [deny opportunities] to women or to men based on stereotypes or 'overbroad generalizations....' Fiallo is a precedent whose time has come and gone; it should be changed by Congress or the Supreme Court."

Miller's appeal borrows from the Supreme Court's VMI decision and says the State Department policy uses outmoded stereotypes about men and fathers' attitudes. She is not "merely an alien seeking admission to the United States," her appeal says, but a daughter of an American citizen making the same claim she could make were her American parent a mother. For some 30 years, the Supreme Court has been steadily overturning laws and policies that discriminate between men and women in a variety of areas, she notes.

THE US government opposes Miller on a number of fronts, including a challenge to her standing to bring a claim at all, given her status as a foreign national. The government says that the Fiallo ruling is not outdated and that Congress has the power to set immigration and nationality policy and the terms of citizenship.

The State Department argues there's a difference between the two genders. It says parentage is more difficult to establish with fathers than with mothers. Moreover, it asserts that the father-child bond is often weak when the father does not marry the child's mother; therefore, the US must establish proof of a responsible commitment from the father to the child before it can offer citizenship.

Government lawyers argue the US has a right to be skeptical of people who suddenly claim citizenship, even though they've never established early ties to parents and country. They say the policy is not derived from outmoded stereotypes, but rather is born out of practical experience with thousands of cases of what it says are differences between US fathers and mothers of out-of-wedlock children.

At a time when more children are born out of wedlock and in a US climate of equal treatment of the sexes, the Miller case is not an easy one to decide, scholars say.

In constitutional terms, the nine high-court justices are likely to decide whether the government policy deserves "heightened scrutiny." That is, does the government, in the case of Miller, need to prove why it must discriminate between the genders?

Tougher scrutiny would likely result in a victory for Miller and a further change in America's gender laws. An outcome of a more relaxed standard of scrutiny would mean the court found that Congress and the State Department's case was more compelling.

The high court is expected to rule by the end of June.

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