Anyone outside the United States. It is for congress to determine which categories of such person should be granted u. S. Citizenship by statute. In doing so congress has always required that the persons involved have a demonstrated in sufficient connection to the United States either in themselves or through their parents to warrant the control of citizenship because citizenship carries with it writes on the part of the individual and important duties of protection on part of the United States government. This concerns the framework under the nationality act of 1952 as originally enacted for granting citizenship for persons outside of the United States as of the date of their birth. Other provisions still with things later in life. In particular, this case concerns the granting of citizenship to children born out of wedlock abroad. The situation in which this courts cases make clear that mothers and fathers are not typically situated with respect to their legal status concerning the child at the moment of birth. The general rules of citizenship at birth are set out and im referring to the act as originally enacted. It was revised in 86. At both were u. S. Citizens than a child born outside the United States would be a citizen of the United States as long as one of the parents had resided in the United States for any time. Congress seem that to be a sufficient connection given that both parents are citizens. If one was a u. S. Citizen and one was an alien, congress had a different approach. The u. S. Citizen parent had to have resided in the United States for ten years, five of which after the age of 14. Congress determined that because such a child would have competing claims of allegiance that a greater residency was required for the pair. Is the argument we heard much about in the floors case . It was made at the oral argument. But we think its also evident of the states of face of the statute in respect to another argument that the Court Address there, its important for the court itself to look at the structure, text and operation of the statute. Talking about the differential treatment of statelessness, and hear your argument is that we need to serve have sufficient ties. Were making both arguments. And we did argue that there should be a connection to the United States and the framework was set up that way. Its true our emphasis but were now arguing and we think its evident with this face of the statute what the provisions are after his connection to the United States. Wire men and women her parent similarly situated with respect for their affiliation, or their attachment to u. S. Values . Theres no reason to think a man is less has less of a sense of u. S. Belonging then woman. And we are making no such argument. The point is at the moment of birth the mother, as this court recognized in one case and has recognize that the mother is the only legally recognized parent. There many cases especially in generations back when this law was on the books where the mother, the birth certificate came sometime after the child was born in both the father and the mothers name might be on it. The moment of birth doesnt necessarily tell you who is the mother if theres no birth certificate in the child when they get the birth certificate both names are on it. But this courts decision and ran in the state statutes that we identify are premised on the proposition that the identity of the mother and her relationship with the child will be known by virtue of the birth alone or at least in the overwhelming majority of cases. In that situation theres only one parent, not a competing claim of citizenship or allegiance to another country through another parent. When the father legitimates, at that point you have two parents and in the situation of different nationalities your put in a situation where there are competing claims. Why do we look for the moment of birth, why shouldnt we look to the moment when citizenship is sought . This provision specifically deals with citizenship at birth. The statute of 1409a with respect to the situation that the child should be a citizen as a birth. Its important to understand exactly what is operating here. At the moment of birth the child only has one parent, when the father legitimates what congress has done generously one could say sensibly is to say we will treat the couple as if theyre married at the moment of birth. There given Retroactive Application so that the child is treated as a child a married parents at that point. If theyre legitimate and fathers u. S. Citizen in that situation youd have two u. S. Citizen parents and a very generous rule would apply in that situation. Its more a matter of proof or is this case is more a question of does the child have sufficient ties to the country . Its quite different propositi proposition. Two things about that, this courts decision had identified two separate interests. One was proof of paternity. The other was recognizing the connection to the United States. The connection to the United States has two steps. What is the relationship to the child to the parents and in some formal sense and also underline a real sense of establishing that relationship. This case deals with the relationship to the parent the United States. The problem is being created for unwed citizen mothers the interest to the connection of the United States doesnt exist because the statute doesnt require connection to the United States except u. S. Citizenship. She could have born, lived here day move somewhere else. Not under the 1952 act. That was true under the 1940 act. This continuous presence for one year. Congress team that to be somewhere in between the two u. S. Citizen parent situation in which any residency was okay and mix nationality situation where congress that it had to be ten and five. Congress chose a time in between. Why should it be different for an on what father who has legitimate ties to the child . In that situation there to parents. The argument is not that the fathers ties or less, its that there are competing ties. In congress wanted to make sure that the strength of the u. S. Citizens ties were sufficient and would outweigh or counteract the congress could be confident of the time it takes to grant citizenship in the situation. Why couldnt that been done or been served through entirely genderneutral language. I know there is a proposal that the secretary of state made earlier this is passed in the 1930s which talked about legal parents and to not refer to mothers and fathers settle. Several things about that. I dont think theres a claim in this case that respond would benefit from reading the statute in that matter. I dont think theres any question he had citizenship when he was born. But to get rid of the gender inequality thats at the heart of his complaint whether or not he benefits from it the question is whether the statute makes or constitutes a violation of equal protection. One question we ask is could congress have written the statue and served as objectives in a genderneutral way . It seems like here we have the secretary of state presented a statute to congress that actually did that. Yes, but as was pointed at the time while that statute on its face look genderneutral, it wouldve operated in the same way as the statute because and no one has really taken serious issue with the proposition we have but at the moment of birth it was the rule that the mother was the only legally recognized parent. It wouldve operated in the same way. Let me connected in a different direction. When you have one parent, the mother in this case, she gets to make all of the pertinent decisions about the child. Where they will live, when a father legitimates he does not then acquire the right to make, the sole right to make all the decisions for the child. There than two parents. Of all the complicated things, the question i think is think of the child. The child is born out of wedlock. Now, if his mother was an american he becomes an american if she lived here for one year. If his father is an american she becomes an american only if he has lived here for eight or ten years. That is a difference. Why does that make a difference . It justifies the gender discrimination. But that applies if the parents are married. Two wrongs dont make a right. No one is challenging perhaps i except no one is challenging but i am not asking that question. Im asking the question of what it is i would repeat the question which you heard which is the equal protection question at the heart of the case. The answer was wellwritten and brilliant but it went into this thing about stateless persons then we had like 17 briefs that said that is not what the situation was. So was it enough to select is there anything else. The first argument were making again is is the point of connection to the United States. Thats where the married couple comes in. No one is challenging our residency requirement. I did have justice kagans question in mind when i read it. Why dont they ask the child what it would be like at the age of 21 to be connected to the United States and see if the child votes in elections. By are we so worried about the childs parents. The app provides for the citizenship after birth. Were been here for 14 years i dont want to argue with you on this point i want to know if i have the reason for saying the mother you only lived here for a year, but the father has to live here for like ten years or eight years. Real justification for that, only one youve been able to find has to do stateless. The first one is the connection to the United States which is evident on the face, when a father legitimates the true the couple as if they are married. In fact the child was legitimated by marriage what the statute did was make it retroactive. Im gonna make an example where they were never married. They like living together without being married. Under the 1986 amendments its easier for the father to acknowledge the child. Again there are two parents and the father does not get to make unilateral decisions about the child. He gets to be a parent too. Not the only parent the way the mother is only the parent before legitimation. On this is true in the case the court has had in the domestic context. He was given a sophisticated rationale. Were talking about legislation from 1940 and 1952. At that time, the statute works were shot through distinctions between children born out of wedlock and the affiliation with the mother and the father. So, this was a piece without legislation and it wasnt until they said a child born out of wedlock can inherit from a mother only, not the father. The laws just put mothers and Children Together and separated fathers from their children. And nobody thought until the 1970s that was a violation of equal protection. But in the series of cases in the 70s the court recognized that indeed there was a violation of equal protection. In so far as theirs equal protection arguments made in one has to do with the goal protection the basis of illegitimacy. The claim is not raised with good reason. As a respondent outside the United States and an alien by statute to not have constitutional rights. These are the laws that existed, mothers and children born out of wedlock together and separate fathers from their children. No matter what the reality of their life was. In this courts decision that was exactly the situation. The court rejected equal protection claims based on sex discrimination and illegitimacy. We think of anything citize citizens on a permanent basis with rights and obligations. But i also wanted to address your question with respect to the domestic context. This courts decision sustain the situation where child was going to be put up for adoption. The mother wouldve ordinarily have the sole right to decide that. But the situation was, what about the father. The father had to take some steps to put himself in a position where he had a veto power. Will didnt the couple married. Yes, but at that point hes not situated to the mother either at the time of birth or at the time he legitimates. If the court thinks the statute violates equal protection clause does it necessarily follow that pit the petitioner in other words the granting of citizenship. We had a similar issue a few terms ago but that was a criminal conviction. Here is not an issue, they had nothing to do with what is the remedy if we level up, then its easier for both, if we level down then it is harder for both. We think the court clearly should not apply to the u. S. Citizen fathers, the oneyear limitation. The general rule is an exception to the general rule that governs the vast majority. Married fathers, married mothers and unmarried fathers. Theres no reason to think that congress wouldve wanted unmarried fathers. I would like your opinion, how many do you think on married fathers there were in 1952 who could not qualify under the long period of time, and thats not so hard to do if youre in the army. All of your activeduty counts. But they wouldve qualified as one year. I knew the numbers in your brief which are brilliant. I dont heist elbows. That 4000 number cap coming back. I thought maybe there a couple thousand a year. To another more . I thought you said there untold numbers. Thats true but then im trying to find how close we could come. Its very hard to estimate, but this courts decision identified the number of people who travel abroad the numbers are higher now. Lets go back to 52 and a couple is on married and its a father who in fact would qualify if he had only lived here for a year but he would not qualify if you had to live here for eight years before the baby is born and never marries the mother. So who could those people have been . They wouldve been people working for businesses or something and there were not that many at that time. So, i use your 4000 so the only thing weve been able to identify and this is not closely in point but the state department told us that today they grant approximately 8000 certificates of birth abroad and of those, i think 3000 are under 1409c which means those are the ones granted to u. S. Citizens and mothers abroad. The number fathers might benefit could be far larger. Refinish . We generally have a role that when we find to an equal protection violation we level up rather than level town. That has been the consistent practice yes, but the court has made clear that there are compelling reasons are not to do that. I find one compelling reason to do it and in this case unlike in some cases there really isnt a choice between leveling up and leveling down because if you level down this party gets no relief. Another words you say you just apply respectively but then this party gets no relief and so, isnt that a problem . Isnt it the same problem as Justice Harland recognize in welsh when he was dealing with a criminal matter. He said you cant level down because he cant give everybody the same benefit. So, how do we deal with that . In this context in particular their serious questions about whether the court can. But theres many reasons why the court should not grant citizenship to someone to whom congress itself have not granted. But it would have that effe effect. In a situation like this we think the only proper to remedy given the authority is to apply the ten year role to everyone and that Congress Step in and adjust the problem. If the parents have been married would it be entitled for relief . No. Another point is there are other situations in which the court finds a constitutional violation but does not grant relief. The exclusionary rule, the court might adjudicate a violation. If we were to level up, if we were to level up the effect, would they be given preference over somebody who was similarly situated except for the fact that that persons parents were married. Yes. And if such a person were to bring a suit thered have a strong equal protection claim, would they not . I hesitate to say. It illustrates the problems of the remedy. It is gender discrimination. Mary parents, the mother and father have been treated equally badly. But when they are on wed the mothers given the preference in the fathers not. So were talking about equal protection. You have two people similarly situated and needs to be treated equally. The on what father is equal to the unwed mother. The married mother sequel to the married father. There are situations in which the court has found a constitutional violation but not granted relief. But not a situation like this or where we say theres an equal protection violation and if we extend the benefits everybody we can take care of that violation remedy the problem. If we do not try to level down, the effect of that is that the party before us who has proved an equal protection violation gets no relief at all. Like to answer that quickly. I think it is also relevant and taking into account the remedy that this is not the respondents own constitutional right. It is the third party claim. Theres no automatic rights to raise the rights of third party. So you could take that into account whether that is feasible at all. Thank you counsel. The responding father was a citizen of the United States. Had he been the mother instead of the father there have been no question that he transmit his citizenship to respond under section 1409. But a person from doing so on the same terms is not based on any innate or biological difference between men and women are mothers and fathers. Nor does it ensure statelessness or serve an interest in or ensuring that citizenship i dissent our pastor only to the children likely to learn american values. Both of the governments justification therefore fail. Like to begin by addressing the standard of review. There is no dispute that the respondent has thirdparty standing to assert the equal protection claim of his father. That claim is subject to intermediate scrutiny. This court applied rational basis review to the claims of aliens who are seeking visas based on the relationship to your citizen relative. It is true, as the government points out that the plaintiffs included a u. S. Citizen father. But the court disagreed with the dissenting justice that his equal protection rights were at stake. There is never any question the aliens were not citizens. Here, the dispute is one on her rights of respondents father to be treated equally and transcend his citizenship on the same term the mother could under section 1409. I would say at some point