How to win your law case and lose it at the same time

Here’s the story.

Three cheers for Luis! He must be over the moon, right? Not quite. Instead of treating fathers the same as mothers SCOTUS decided to treat mothers the same as fathers. At first glance these two things may seem identical but sadly for Luis they very much are not. Because rather than extending the favorable treatment of women to men the court simply abolished the gender distinction, ie the children of US mothers now have to wait just as long as the children of US fathers.

All this means that Luis won his case and now he’s screwed, he does not qualify for US citizenship. What a bummer, “Hey, Luis, we won! ICE is here to congratulate you!” :eek:

What does this decision mean for everyone who had citizenship granted through their mother’s status, who would no longer qualify?


The Supreme Court of Canada takes a different approach in these kinds of cases. Where an equality claim is made out, and there are two different ways to remove the inequality, the SCC will suspend its declaration of invalidity for a year to give Parliament the chance to fix it.

The Court reasons that where there are two equally valid rules, and the only problem is that equality requires a choice between those rules, it’s not the Court’s job to choose between them. It’s the job of the elected legislators to decide which of the two approaches to follow, by enacting legislation.

What happens if Parliament cannot or will not legislate? Equally, what happens to the petitioner in the meantime?

(So sorry for the hijack!)

If they had decided that the shorter residency requirement for unmarried mothers was the operative rule now for unmarried fathers as well, they’d be placing the children of married parents in worse position than those of unmarried parents. Is it likely that Congress intended that result?

Did this guy’s mother live in the US for long enough to make her child a citizen?

If I understand the story, the father fell 20 days short of the five years he would have to reside in the US for his son to be an automatic citizen. If the mother had lived in the US for only a year, then he would have been a citizen. Did she?

The article mentions that the son has been convicted of several felonies, so it is hard to feel sorry if he gets deported, but I see how “five years if it’s your father but only one if it’s your mother” could be considered sexist.


The mother wasn’t a US citizen at all.

It’s never happened, so far as I know: Parliament had always legislated within the deadline.

However, if Parliament did nothing, my guess is that at the end of the year, the entire provision would be inoperative, including both of the alternative rules.

The South African constitutional court did something similar when ruling on gay marriage: they gave the legislature a year to fix the marriage laws. If they didn’t act quickly enough the law would automatically be interpreted to allow it (I am not sure if that means the law actually changes or if courts are instructed to interpret it in a certain way). I believe the legislature did act in time. I assume in the general case this gives a chance to deal with any potential unintended side effects in a controlled manner.

It’s true that US courts do not typically issue deferred rulings, but US jurisprudence is generally not structured so as to yield two equally valid outcomes. In this case, for instance, the court found in favor of the rule that it determined to best embody the intent of the legislature, while remaining within constitutional bounds. In the American view, a court that failed to choose that outcome (by deferring its ruling, say) would be frustrating the will of the elected legislators. And certainly, Congress has the power to change the law at any time and choose the other option, if it wishes.

R v Morgentaler might be considered to be a similar situation. The court found the existing law to be invalid, but left open the possibility of a revised law being acceptable. The government tried to pass revised legislation twice without success, and then gave up. (The original legislation still exists as s. 287 of the Criminal Code, but is unenforceable.)

I believe that the Canadian Parliament is under such a deadline right now for a case involving Aboriginal rights. The House did pass a bill to deal with the problem, but the Senate, labouring under the delusion that they have some kind of democratic legitimacy, amended it and sent it back to the House. The government has indicated that they cannot accept the amendments without further study and consultations, so this could get interesting.

“Convicted of several felonies” is enough for me. Out he goes.

A nasty case of “Be careful what you ask for.”

I thought this was going to be about winning a class action lawsuit, and in the settlement getting a ten dollar discount coupon on future contracts.