460
Ginsburg, J., dissenting
Justice Ginsburg, with whom Justice Souter and Justice Breyer join, dissenting.
As Justice Breyer convincingly demonstrates, 8 U. S. C. § 1409 classifies unconstitutionally on the basis of gender in determining the capacity of a parent to qualify a child for citizenship. The section rests on familiar generalizations: mothers, as a rule, are responsible for a child born out of wedlock; fathers unmarried to the child's mother, ordinarily, are not. The law at issue might have made custody or support the relevant criterion. Instead, it treats mothers one way, fathers another, shaping Government policy to fit and reinforce the stereotype or historic pattern.
Characteristic of sex-based classifications, the stereotypes underlying this legislation may hold true for many, even most, individuals. But in prior decisions the Court has rejected official actions that classify unnecessarily and over-broadly by gender when more accurate and impartial functional lines can be drawn. While the Court is divided on Lorelyn Miller's standing to sue, a solid majority adheres to that vital understanding. As Justice O'Connor's opinion makes plain, distinctions based on gender trigger heightened scrutiny and "[i]t is unlikely . . . that any gender classifications based on stereotypes can survive heightened scrutiny." Ante, at 452 (opinion concurring in judgment); post, at 482- 488 (Breyer, J., dissenting).
On the surface, § 1409 treats females favorably. Indeed, it might be seen as a benign preference, an affirmative action of sorts. Compare Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 731, and n. 17 (1982), with id., at 740-744 (Powell, J., dissenting). Two Justices today apparently take this view. Justice Stevens' opinion, in which The Chief Justice joins, portrays § 1409 as helpfully recognizing the different situations of unmarried mothers and fathers during the prenatal period and at birth, and fairly equalizing the "burdens" that each parent bears. See ante, at 433-434, 438. But pages of history place the provision in real-world
Page: Index Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 NextLast modified: October 4, 2007