Cite as: 533 U. S. 53 (2001)
O'Connor, J., dissenting
(describing statelessness problem). The Court certainly has good reason to reject this asserted rationale. Indeed, the INS hardly even attempts to show how the statelessness concern justifies the discriminatory means of § 1409(a)(4) in particular. The INS instead undertakes a demonstration of how the statelessness concern justifies § 1409(c)'s relaxed residency requirements for citizen mothers. See id., at 17- 19, 42-43, 44, n. 23. But petitioners do not challenge here the distinction between § 1401(g), which requires that citizen fathers have previously resided in the United States for five years, including at least two years after the age of 14, and § 1409(c), which provides that a citizen mother need only have resided in the United States for one year. The INS' proffered justification of statelessness thus does nothing to buttress the case for § 1409(a)(4).
The Court also makes a number of observations that tend, on the whole, to detract and distract from the relevant equal protection inquiry. For example, presumably referring to § 1409 in general, the majority suggests that "the statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child's birth and the other chooses not to return, or does not have the means to do so." Ante, at 61. But even apart from the question whether this was one of Congress' actual purposes (and the majority does not affirmatively claim that it was), this equivalence is quite beside the point of petitioners' constitutional challenge, which is directed at the dissimilar treatment accorded to fathers and mothers.
The Court also states that the obligation imposed by § 1409(a)(4) is "minimal" and does not present "inordinate and unnecessary hurdles" to the acquisition of citizenship by the nonmarital child of a citizen father. Ante, at 70. Even assuming that the burden is minimal (and the question whether the hurdle is "unnecessary" is quite different in kind from the question whether it is burdensome), it is well settled that "the 'absence of an insurmountable barrier' will not
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