Opinion: Fathers need equal protection

There was a time when the law prevented women from practicing law, working over a certain number of hours or owning property if married. Our legal code was laden with gender-specific rules based on traditional sex roles and generalizations about men and women.

It took decades of legal challenges, but today nearly every vestige of de jure sex discrimination has been wiped off the law books. Over the years, the U.S. Supreme Court came to recognize that whenever the law treated men and women differently and those disparities are grounded in gender stereotypes, the Constitution is violated.

This term, the court has to attend to one more piece of business. But this time the victims of discrimination are fathers.

The law under challenge dates back to 1940. At that time, as the nation watched the war raging in Europe and wondered whether Americans would soon be drawn into the fighting, lawmakers changed the rules of citizenship. Children born overseas to unmarried American mothers would continue to have automatic American citizenship. However, a major change was made in the way the law treated the foreign-born offspring of American fathers. In order for children born out of wedlock overseas to obtain citizenship, their fathers' had to acknowledge and prove paternity and provide financial support.

The government justified the disparate treatment by saying it has an interest in preventing fraudulent claims of citizenship. Maternity, asserted the government, is easier to prove than paternity since women are the ones who give birth and are typically the ones who provide child care.

The case before the court involves Tuan Anh Nguyen, a native of Vietnam who was raised by his father in the United States after his Vietnamese mother abandoned him. Nguyen's father didn't realize the legal steps required to make his son a citizen until it was too late and his offspring was past his 18th birthday. Now the Immigration and Naturalization Service wants to deport Nguyen as a criminal alien for his dual convictions of sexual assault on a child. The 1996 immigration law passed by Congress provides for the deportation of immigrants who commit crimes of this sort. But had Nguyen's mother been American and his father a foreigner, he wouldn't be facing deportation.

The court is being asked whether the law violates equal protection by treating parents differently based on their gender. In a 1998 case challenging the law's constitutionality, the court appeared to have a one-vote majority to strike it down. (In that case, however, a procedural issue got in the way of such a ruling.) It's hard to fathom why such a blatantly discriminatory law had any support on the court.

Today, with DNA testing offering a cheap and effective way to establish parentage and prevent fraudulent claims of citizenship, there should be no difference in the way mothers and fathers are treated under the law. If we expect fathers to be as responsible toward their children as mothers, then our laws should reflect that view.

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