question in this case is a purely legal one after the supreme court's decision in morality santana is the former derivative citizenship statute eight u s c one thousand four hundred and thirty two unconstitutional as applied to mr my because it discriminates but if you go back they basically say that it's very related and you can't i don't i don't think the court can get around the fact that in the footnote in morello santana they specifically said marital status and you can't turn that into a legitimacy issue just because it relied on a case that but marital status and legitimacy are related concepts and if they say marital status but then quote of legitimacy case why don't we assume that they're talking about legitimacy because if they've met to say legitimacy they would have said legitimacy and i think that that's really important and the other thing i would say your honor is that if so there's a legitimacy it would have been a higher standard or of review for equal protection but marital status in less you can tell us otherwise seems like it would be a rational basis i think that directly contradicts the footnote itself but that's or time that's so if we decide that you know if you have any other evidence in the all supreme court doctrine that marital status got something other than rational well i think we can look at the remedy itself in morality santana because what happened there was space that they said ok there is an equal protection problem between unmarried fathers and unmarried mothers and so we're going to make the residency requirements the same for those but then they realized that that residency requirement would be different than it would be for married parents and so they said well we can't do that because that would make little sense in fact they said it would be irrational so basically they said we're going to put everyone fathers mothers married unmarried on the level and because of that they were and why shouldn't we assume that that's just because they're trying to craft a remedy there why don't we read that as changing and go protection doctrine because your honor basically what the supreme court has said in seminole tribe is that if there is language in a supreme court decision that is that would be necessary to the result of that case then that binds lower courts and that's exactly why don't think that remedy discussion has to be interpreted as changing equal protection doct e to make sense of it i would disagree your honor and i think i would go back to the whole idea that marital status is what the language that the court used there was or in these i know now they're going back to the fact that right but supreme court footnotes are just as binding as any other part of the supreme court decision so but i would also go back to the idea your honor let's say that rational basis did apply what we know from or allison tanna and what the remedy is and what justice ginsburg said is that there would be no reason it would be irrational to favor mayor unmarried parents over married parents so that we are bound so we may not be bound by bartholomew's reason for why rational basis applies but if we think a rational that it would be irrational to favor unmarried parents over married parents and so i think at a minimum the rationale of barthelemy is no longer good law after morale assented there still is that russia now about being concerned about non citizen parents and their parental rights well you're out i think for the other reasons given in our brief those are actually not the case at all and one of the reasons that i want to point out and that this hasn't been argued in any other case to consider this issue is there's an entirely separate set of laws under the hague conviction under the hague convention that protects non citizens parents and protects them regardless of the derivative citizenship issue so for instance if you had a kidnapping scenario like was put forth in even if you had that situation this statute wouldn't relate to it it wouldn't protect the non citizen parent what would protect the non citizen parent is the hague convention and so it would be irrational desire any situation where  getting united states citizenship could cause a problem for you i mean i don't know all the countries in the world but it seems possible of the that aside from kidnapping there would be a reason that a non citizen parent wouldn't want their child to become an american citizen well the government has never cited any actual case and i think that's significant because this marital distinction has been off the books for twenty years and so there has been supposedly no protection of non citizen parents for twenty years and yet there's been no problems there's been no cases that the government can cite you to whether this where this has been an issue and in fact i think it's actually to the contrary that it is much more likely that parents would want to have their children derive u s citizenship i'm sorry can you explain what you mean by that hasn't been in effect to earth but off the books i'm not sure i understand that argument sure absolutely because in two thousand congress passed the child citizenship act and that act removed the exact marital status distinction that we are challenging here so in other words when did it come and essentially for the last twenty years the law has been that you treat married and unmarried parents exactly the same so we're not really if but that doesn't i mean if we're talking about rational basis the fact that the law changed doesn't invalidate in all london rational basis that can't be at the legal prep principle that applies generally well you know i mean for the other reasons that we said i think that we we still would satisfy a rational basis but because there's just simply no case and as i was saying your honor i think it is much more likely that the vast majority of parents would rather have their children derive citizenship rather than not because it's expensive it's expensive to have kids naturalized it's expensive to have parents naturalized and i just think that overall if you look at the fact that other laws provide protections that the vast majority of parents would want their parents would want their children to do this it really cuts in our favor and the other thing i would say your honor is that when congress changed this law when they repealed this marital are looking both morale santana and here we're looking at merrill status in the context of automatically acquiring or deriving citizenship i'm standing by the what we're dealing with as i believe anyway is the question is whether the legislature before two thousand had a rational basis for drafting the laws did right right ok so that's the case then i'm not seeing that me was eliminated i'm not saying that rational basis is eliminated i get your point about the hey commence there are lots of reasons why they might want to change it but the reality is we're dealing with the law before it changed and i'm struggling with the idea that somehow on a rational basis that congress didn't have any basis barthelemy that right we think it overturns it i think that in this very limited context of acquired derivative citizenship this is a narrow place and what we're saying is that basically congress and everything that we've seen through the record and through the laws congress wanted to err on the side of giving more people do you agree that under our president under miller versus gammy we're bound by birth all of me unless we find that  is completely inconsistent with forethought let me right but i would also point out your honor that dent in the indent this court did say it relied on morales santana to over rule another aspect of the acquired five in the remedy and in the fact that the government has never given you any actual case ok ok thank you thank you very much so let's hear from the government think that the main point that i would like to make today we're talking about an equal protection challenge and there has to be what i call a hook you have to have proof even aside from whether cases have been implicitly overruled what intermediate i don't see how there's any distinction based on their status the st sentence is for a foreign born child is long as both parents naturalized before that child turns eighteen have any desire to get married at all but they get both naturalized thing then the statute worms two parents who are married who have a beautiful marriage it lasts forever they get naturalized before you know but it matters whether they're still together right doesn't matter whether they're separated well for those three exceptions that in the rest of the statute but even then i think my opponent has sort of a promise will you know that this statute that those three exceptions discriminate against people who remain married but it's not just any i think you know if i recall from law school you can perception this is helpful to oranges if we're going to take on these serious constitutional issues i think it's at least incumbent on my opponent to have a clear claim to a distinction that's based on an impermissible ground to begin with and i don't think you see that i mean other than that very last subsection which talks about a child born out of wedlock where the paternity isn't established this statute is written gender neutral it you know when you look at the equal protection cases usually there are some sort of obvious and mark earnest it obsolescent view assumptions that single fathers aren't as good parents and single mothers you know in court st as jeter putting a marital status had been different wouldn't it have made a difference for him but i'm not quite sure why like in this that can you explain why this defendant's parents merrill's that it didn't matter because it seems like that's the premise of your argument is there's no distinction of marital status but can you explain that as to the facts of this case and what happened with his parents like this because his parents are married i mean what is basically the statute is saying is that both but if they'd been unmarried that might have made a difference right because like stayed there and married as father had custody th situation that is from court in the wind versus i in this case in two thousand and one but my understanding is that again whether they were married whether they weren't they both have to be naturalized before the child is eighteen so i don't see how that on  legal custody and when there's a single parent with full legal custody is we or get in our brief the government's position is that that person that parent is not substantially or is not similarly situated to two parents who still have the same legal responsible but at the other point i wanted to make was that even setting all that aside for a nd in the nd circuit makes this point well in the peer case that we rely heavily on even at the time of the relevant events in this case there was another subsection the very other cases of say doesn't impose owners requirements that child could have gotten a citizenship in the supreme court the nd circuit in pure specifically said that's a reason why i shouldn't like the one in this case and in that case they're not falling through the cracks of protection cases of our lifetime where somebody wants to go to a particular school and nobody would suggest that well if you can just go to another integrated school valid be good enough the point i want to make is that when we're talking about citizenship i basically helping there be an equal protection problem when even if you want to accept that this is an equitable situation presented by the facts of this case there still was another legal avenue were citizenship could have been acquired for the defendant and whether he went through that this route any other route he would have been a citizen at the end on the same footing as everybody else and i would suggest that being the case and the lack of any obvious animus or it seems much more convoluted to try to read all the exceptions of the statute in the hallway and say merrill's that's never matters i'm not totally persuaded that that's true but it seems like you want us to do that complicated thing and then talk about it it doesn't matter that there's heightened scrutiny why isn't it just much easier to say even if this is marital status it gets rational basis i don't understand really why you've taken the strategy there's some reason why you want us to not apply rational basis and if you don't leave you with that i just didn't look at it that way you know sometimes i i saw that footnote and i said well i know that there is the rule that even dictum from the supreme court's entitle to deference hadn't done equal protection challenge in a long time i said you know what i'll take this on because it seemed to me in you know even the cases or rational basis review you know there's one hundred and one thousand five hundred and twenty published case about four not a single one of to automatically do that but the last i keep saying last thing this time i'm here to death versus sessions even though they said that i rewrote it again last night they end up applying rational basis review to the adoptive parent take away the reason for what the standard would be and then they have to figure out what the center would be which is what we have to do here i think to and it seems that we could say it's rational basis even if marital status is implicated by the statute  government didn't argue that rational basis applied here because the government and i've worked with mr a for a long time he looked at that but no and he said how do i argue against the plain language of a supreme court footnote particularly because it was then used to get to the result and so i just think it would be very very problematic if this court said the supreme court said marital status is subject to heightened scrutiny but we think that they didn't really mean it and the last thing i would say your honor is in question in response to your question about if his parents were legal were legally separated or divorced without changing yes absolutely that would change if he were five years younger he would be a citizen and so these are very thin threads upon which to say