Miller v. Albright, Secretary of State
Decided on April 22, 1998; 523 US 420


A. Issues Discussed:  Governmental Authority (citizenship), 5th Amendment

B. Legal Question Presented: 

Does United States law, establishing citizenship upon birth of illegitimate foreign-born children whose mothers are US citizens but failing to do the same if only their fathers are US citizens, violate the Fifth Amendment's equal protection guarantees?


A. Background:

Petitioner, Lorelyn Miller, was born in the Philippines in 1970 to a Filipino national woman and an American soldier. Her father never married her mother, and although he was stationed in the Philippines at the time of Petitioner’s conception, there is no evidence that he was in the Philippines at the time of her birth, or ever returned after completing his tour of duty.

In 1992, after the State Department rejected her first application for U.S. citizenship, Miller reapplied when a Texas court granted her father's petition for a paternity decree declaring him her father. The State Department rejected her citizenship application again, claiming that US law (8 U.S.C. Section 1409(a)) required foreign-born illegitimate children of American fathers to be legitimated before the age of 18.

Miller challenged the refusal. She claimed that since the law established at birth the citizenship of an illegitimate foreign-born child whose mother was an American citizen, the State Department's refusal to do the same when the father is an American citizen, was unconstitutional.

On appeal from an appellate court's decision to affirm the lower court's dismissal of the case, the Supreme Court granted Miller certiorari.

B. Counsel of Record:
Opposing Side
Donald Ross Patterson argued the case and filed the brief for Petitioner. Deputy Solicitor general Kneedler argued the case for Respondent; with him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Edward C. DuMont, Michael Jay Singer, and John S. Koppel.
C. The Arguments:
Opposing Side
"In United States v. Virginia ('VMI'), this Court reaffirmed in the strongest possible terms that 'all gender-based classifications today' by every governmental unit must be subjected to 'heightened scrutiny' under the Equal Protection Clause...

This case involves the very kind of gender discrimination VMI was designed to eradicate: treating men and women differently based on overbroad, outdated stereotypes - here, the stereotype that women, but not men, have a natural connection to their children. Using that stereotype Congress passed a law automatically granting citizenship to illegitimate children of U.S. citizen mothers, but denying it to children of U.S. citizen fathers, unless the father first proves he is indeed the father and documents his commitment to care for the child. Such a statute should have been held to be a violation of equal protection under VMI given that the government has not and could not advance an 'exceedingly persuasive justification' for it.

The proposition that women but not men care for children is an outdated relic. So too is the proposition that in certain areas Congress may engage in offensive stereotyping without being subject to the requirements of the Due Process or Equal Protection Clauses. The Court should put both relics to rest in this case."
-ACLU Amicus Brief



Opposing Side
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union, et al., by Walter A. Smith, Jr., Steven R. Shapiro, Lucas Guttentag, Sara L. Mandelbaum, and Martha Davis. No amici curiae briefs were filed on behalf of the Respondent.

"The statutory provision at issue in this case... draws two types of distinctions between citizen fathers and citizen mothers of children born out of wedlock. The first relates to the class of unmarried persons who may transmit citizenship at birth to their offspring, and the second defines the affirmative steps that are required...

As for affirmative steps, §1409…imposes four requirements concerning unmarried citizen fathers that must be satisfied to confer citizenship ‘as of the date of birth’ on a person born out of wedlock to an alien mother in another country… ‘(1) A blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years - (A) the person is legitimized under the law of the person’s residence or domicile, (B) the father acknowledges the paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court...'

Section 1409 also serves [another] important purposes that [is] unrelated to the determination of paternity: the interest in encouraging the development of healthy relationship between the citizen parent and the child while the child is a minor;… due to the normal interval of nine months between conception and birth, the unmarried father may not even know his child exists, and the child may not know the father’s identity. Section 1409(a)(4) requires a relatively easy, formal step by either the citizen father or his child that shows beyond a doubt that at least one of the two knows their blood relationship… The facts of this very case provide a ready example of this concern. Mr. Miller and petitioner both failed to take any steps to establish a legal relationship with each other before petitioner’s 21st birthday…

If there is no reliable, contemporaneous proof that the child and the citizen father had opportunity to form familial bonds before the child turned 18, Congress reasonably may demand that the child show sufficient ties to this country on its own rather than through its citizen parent in order to be a citizen..."

Held: The judgment of the Court of Appeals is affirmed.

Justice Vote: 3 Pro vs. 6 Con

  • Stevens, J. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined Steven's opinion, joined majority opinion)
  • O'Connor, S. Con (Wrote concurring opinion)
  • Kennedy, A. Con (Joined O'Connor's concurrence, joined majority opinion)
  • Scalia, A. Con (Wrote concurring opinion, joined majority opinion)
  • Thomas, C. Con (Joined Scalia's concurrence, joined majority opinion)
  • Ginsburg, R. Pro (Wrote dissenting opinion)
  • Souter, D. Pro (Joined Ginsburg's dissent, joined minority opinion)
  • Breyer, S. Pro (Wrote dissenting opinion and joined Ginsburg's dissent)

The ACLU filed as amicus urging reversal; the Supreme Court affirmed the ruling of the lower court in a 6-3 vote, giving the ACLU an apparent loss.