80
O'Connor, J., dissenting
and the INS' proffered justifications is striking, to say the least.
The gravest defect in the Court's reliance on this interest, however, is the insufficiency of the fit between § 1409(a)(4)'s discriminatory means and the asserted end. Section 1409(c) imposes no particular burden of proof on mothers wishing to convey citizenship to their children. By contrast, § 1409(a)(1), which petitioners do not challenge before this Court, requires that "a blood relationship between the person and the father [be] established by clear and convincing evidence." Atop § 1409(a)(1), § 1409(a)(4) requires legitimation, an acknowledgment of paternity in writing under oath, or an adjudication of paternity before the child reaches the age of 18. It is difficult to see what § 1409(a)(4) accomplishes in furtherance of "assuring that a biological parent-child relationship exists," ante, at 62, that § 1409(a)(1) does not achieve on its own. The virtual certainty of a biological link that modern DNA testing affords reinforces the sufficiency of § 1409(a)(1). See Miller, supra, at 484-485 (Breyer, J., dissenting).
It is also difficult to see how § 1409(a)(4)'s limitation of the time allowed for obtaining proof of paternity substantially furthers the assurance of a blood relationship. Modern DNA testing, in addition to providing accuracy unmatched by other methods of establishing a biological link, essentially negates the evidentiary significance of the passage of time. Moreover, the application of § 1409(a)(1)'s "clear and convincing evidence" requirement can account for any effect that the passage of time has on the quality of the evidence.
The Court criticizes petitioners' reliance on the availability and sophistication of modern DNA tests, ante, at 63, but appears to misconceive the relevance of such tests. No one argues that § 1409(a)(1) mandates a DNA test. Legitimation or an adjudication of paternity, see §§ 1409(a)(4)(A), (C), may well satisfy the "clear and convincing" standard of
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