86
O'Connor, J., dissenting
in theory, and not just in practice, is hardly characteristic of a "substantial" means-end relationship.
Moreover, available sex-neutral alternatives would at least replicate, and could easily exceed, whatever fit there is between § 1409(a)(4)'s discriminatory means and the majority's asserted end. According to the Court, § 1409(a)(4) is designed to ensure that fathers and children have the same "opportunity which the event of birth itself provides for the mother and child." Ante, at 67. Even assuming that this is so, Congress could simply substitute for § 1409(a)(4) a requirement that the parent be present at birth or have knowledge of birth. Cf. Miller, supra, at 487 (Breyer, J., dissenting). Congress could at least allow proof of such presence or knowledge to be one way of demonstrating an opportunity for a relationship. Under the present law, the statute on its face accords different treatment to a mother who is by nature present at birth and a father who is by choice present at birth even though those two individuals are similarly situated with respect to the "opportunity" for a relationship. The mother can transmit her citizenship at birth, but the father cannot do so in the absence of at least one other affirmative act. The different statutory treatment is solely on account of the sex of the similarly situated individuals. This type of treatment is patently inconsistent with the promise of equal protection of the laws. See, e. g., Reed, 404 U. S., at 77 ("By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause").
Indeed, the idea that a mother's presence at birth supplies adequate assurance of an opportunity to develop a relationship while a father's presence at birth does not would appear to rest only on an overbroad sex-based generalization. A mother may not have an opportunity for a relationship if the child is removed from his or her mother on account of alleged abuse or neglect, or if the child and mother are separated by tragedy, such as disaster or war,
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