88
O'Connor, J., dissenting
for the careful application of heightened scrutiny to a particular classification.
The question that then remains is the sufficiency of the fit between § 1409(a)(4)'s discriminatory means and the goal of "establish[ing] . . . a real, practical relationship of considerable substance." Ante, at 70. If Congress wishes to advance this end, it could easily do so by employing a sex-neutral classification that is a far "more germane bas[i]s of classification" than sex, Craig, 429 U. S., at 198. For example, Congress could require some degree of regular contact between the child and the citizen parent over a period of time. See Miller, 523 U. S., at 470 (Ginsburg, J., dissenting).
The majority again raises this possibility of the use of sex-neutral means only to dismiss it as irrelevant. The Court admits that "Congress could excuse compliance with the formal requirements when an actual father-child relationship is proved," but speculates that Congress did not do so "perhaps because of the subjectivity, intrusiveness, and difficulties of proof that might attend an inquiry into any particular bond or tie." Ante, at 69. We have repeatedly rejected efforts to justify sex-based classifications on the ground of administrative convenience. See, e. g., Wengler, 446 U. S., at 152; Frontiero, 411 U. S., at 690-691. There is no reason to think that this is a case where administrative convenience concerns are so powerful that they would justify the sex-based discrimination, cf. Wengler, supra, at 152, especially where the use of sex as a proxy is so ill fit to the purported ends as it is here. And to the extent Congress might seek simply to ensure an "opportunity" for a relationship, little administrative inconvenience would seem to accompany a sex-neutral requirement of presence at birth, knowledge of birth, or contact between parent and child prior to a certain age.
The claim that § 1409(a)(4) substantially relates to the achievement of the goal of a "real, practical relationship"
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