458
Scalia, J., concurring in judgment
Inc., 504 U. S. 374, 384-385 (1992). The question of severance ultimately turns on "whether the provisions are inseparable by virtue of inherent character," Carter v. Carter Coal Co., 298 U. S. 238, 322 (1936), which must be gleaned from the structure and nature of the Act.
Another obstacle to judicial deletion of the challenged requirements is the fact that when a statutory violation of equal protection has occurred, it is not foreordained which particular statutory provision is invalid. The constitutional vice consists of unequal treatment, which may as logically be attributed to the disparately generous provision (here, supposedly, the provision governing citizenship of illegitimate children of citizen-mothers) as to the disparately parsimonious one (the provision governing citizenship of illegitimate children of citizen-fathers). "[W]e have noted that a court sustaining [an equal protection] claim faces 'two remedial alternatives: [It] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.' " Heckler v. Mathews, 465 U. S. 728, 738 (1984), quoting Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in result). Given the nature of the law at issue here, and given the clear command of 8 U. S. C. § 1421(d) ("under the conditions prescribed in this subchapter and not otherwise"), there is no doubt which of those alternatives the Court must employ. It cannot confer citizenship where Congress has not done so.
In any event, this is not like the ordinary equal protection case, in which one class is subjected to a restriction from which the other class is exempt. See, e. g., Craig v. Boren, 429 U. S. 190, 191-192 (1976) (men can be served alcoholic beverages only if over 21 years of age, whereas women need be only 18). Here each class is subjected to restrictions from which the other is exempt. While illegitimate children of citizen-fathers must meet the requirements of § 1409(a)
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