Miller v. Albright, 523 U.S. 420, 62 (1998)

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Cite as: 523 U. S. 420 (1998)

Breyer, J., dissenting

residents); Kleindienst v. Mandel, 408 U. S. 753 (1972) (citizens' rights related to treatment of alien); Fiallo v. Bell, 430 U. S. 787 (1977) (citizens' rights to obtain immigration preferences for relatives who are aliens). When the Court has considered the latter kind of case, it has not lowered the standard of review. See Bellei, 401 U. S., at 828-836 (evaluating due process challenge to citizenship statute under generally applicable standard).

In sum, the statutes that automatically transfer American citizenship from parent to child "at birth" differ significantly from those that confer citizenship on those who originally owed loyalty to a different nation. To fail to recognize this difference, and consequently to apply an unusually lenient constitutional standard of review here, could deprive the children of millions of Americans, married and unmarried, working abroad, traveling, say, even temporarily to Canada or Mexico, of the most basic kind of constitutional protection. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 53 (1997) (Table 54) (reporting that, as of 1990, 1.86 million United States citizens were born abroad or at sea to American parents); see also Hearing before the Subcommittee on International Operations of the House Committee on Foreign Affairs, 102d Cong., 1st Sess., 114 (1991) (testimony of Andrew P. Sundberg) ("According to the most recent survey carried out by the State Department, 40,000 children are born abroad each year to a U. S. citizen parent"). Thus, generally prevailing, not specially lenient, standards of review must apply.

IV

If we apply undiluted equal protection standards, we must hold the two statutory provisions at issue unconstitutional. The statutes discriminate on the basis of gender, making it significantly more difficult for American fathers than for American mothers to transmit American citizenship to their children born out of wedlock. If the citizen parent is a man,

481

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