John G. Roberts, Jr.: We will hear argument first this morning in Case No. 15-1191, Loretta Lynch, Attorney General, v. Morales-Santana. Mr. Kneedler.
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The United States Constitution does not confer U.S. citizenship on anyone born outside the United States. Rather, pursuant to its plenary authority under Article I of the Constitution, it is for Congress to determine which categories of such persons should be granted U.S. citizenship by statute. In doing so, Congress has always required that the persons involved have a demonstrated and sufficient connection to the United States, either in themselves or through their parents, to warrant the conferral of citizenship, because citizenship carries with it attendant duties and rights on the part of the individual, and important duties of protection and obligation on the part of the United States government. This case concerns the framework under the Immigration and Nationality Act of 1952 as originally enacted for granting citizenship to persons outside the United States as of the date of their birth. Other provisions deal with the granting of citizenship later in life. Those were open to Respondent or his father in this case, but were not taken advantage of. In particular, this case concerns the granting of citizenship to children born out of wedlock abroad, a situation in which this Court's -- this Court's cases made clear that mothers and fathers are not typically similarly situated with respect to their legal status concerning the child at the moment of birth. The general rules for citizenship at birth are set out in 8 U.S.C. 1401. And I'm referring to the Act as originally enacted; it was revised in 1986. If both parents were U.S. citizens, then 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 period of time. Congress did not deem that to be a sufficient connection to the United States, given that both parents are citizens. On the other hand, if one parent was a U.S. citizen and one parent was an alien, Congress had a markedly different approach. The U.S.-citizen parent had to -- had to have resided in the United States for ten years, five of which were after reaching the age of 14. Congress evidently determined that because such a child would have competing claims of allegiance, that a greater residency was -- was required for the parent to establish the connection to the United States.
John G. Roberts, Jr.: Is that an argument we heard much about in the Flores-Villar case?
Edwin S. Kneedler: It was -- it was made at the oral argument in -- in Flores-Villar, and -- but we think it's also evident from the face of the statute. As this Court said in Nguyen with respect to another argument that the -- that the Court addressed there, it's important for the Court itself to look at the -- at the structure, text, and operation of the statute to see that the --
Anthony M. Kennedy: I thought, in Villar, the -- the government spent most of its argument talking about the differential treatment primarily on the grounds of statelessness.
Edwin S. Kneedler: Right.
Anthony M. Kennedy: And -- and here your argument is -- the thrust of your argument is -- is somewhat a different need to ensure sufficient ties.
Edwin S. Kneedler: What -- we're making both arguments. And -- and we did -- we did argue in Flores-Villar that there should be a connection to the United States and that the statutory framework is set up that way. It's true that our emphasis was on statelessness, but we are now arguing -- and, again, we think it's -- it's entirely evident from the face of the statute -- that what -- what these provisions are after is connection to the United States.
Ruth Bader Ginsburg: Why aren't men and women who are parents similarly situated with respect to their affiliation, their attachment to U.S. values? I mean, there's no reason to think a man is less -- has less of a sense of U.S. belonging than a woman?
Edwin S. Kneedler: Right. And we're -- and we're making no such argument. The -- the point is that where you have -- where you have -- at the -- at the moment of birth, the mother, as -- as this Court recognized in the -- in the Nguyen case and has recognized in cases like Lehr v. Robertson in the domestic context, the mother is the only legally recognized parent.
Ruth Bader Ginsburg: There are many cases, especially generations back when this law was on the books, where the mother -- the birth certificate came sometime after the child was born, and both the father's name and the mother's name might be on it. So it is -- it is not -- the moment of birth doesn't necessarily tell you who is the mother if she -- if there is no birth certificate, and then the child, when they get the birth certificate, both names are on it.
Edwin S. Kneedler: But I -- I think this Court's decision in Nguyen and the -- and the State statutes that we identify in a footnote in our brief are premised on -- on the proposition that the identity of the mother and her relationship to the child will be known by virtue of the birth alone, or at least will be known in the overwhelming majority of cases. In that situation there is only one parent. There is not a competing claim of citizenship to -- a competing claim of allegiance to another country through another parent. On the other hand, when the father legitimates, at that point you have two parents, and it -- in the situation where they are of different nationalities, then you are put in the situation where there are competing claims --
Elena Kagan: But why do we look, Mr. Kneedler, to the moment of birth? Why shouldn't we look to the moment when citizenship is sought?
Edwin S. Kneedler: Because this -- this statutory provision specifically deals with citizenship at birth, and the -- the statute that that's its caption, of 1409(a), with respect to the situation where the father legitimates, says the child shall be a citizen as of birth, and it's important to understand exactly what is operating here. At -- at the moment of birth, again, the child only has one -- one parent. When the father legitimates, what Congress has done generously, one could say, but at least sensibly, is to say we will treat the couple as if they were married at the moment of birth. They are giving retroactive application to the legitimation so that the -- so that the children -- the child is treated as the child of married parents at that point. If the -- if the legitimating father is a U.S. citizen, in that situation you would have two U.S.-citizen parents, and the very generous rule for U.S.-citizen parents would apply in that -- in that situation.
Anthony M. Kennedy: But Nguyen -- Nguyen was more a matter of -- of proof, whereas this case, as Justice Ginsburg indicates, is a question of which -- does the child have sufficient ties to the country. It's quite a different -- quite a different proposition that the two address, it seems to me.
Edwin S. Kneedler: Two -- two things about that. This Court's decision in Nguyen had two -- had identified two separate interests. One was the proof of paternity, and -- but the other was recognizing the connection to the United States. The connection to the United States in a situation like this has two steps: What is the relationship of the child to the parent? And Nguyen was concerned about establishing that relationship, that in -- in some formal sense and also underlying it, a real sense of establishing that relationship. This case deals with the relationship of the parent to the United States.
Sonia Sotomayor: The problem is with the exception that's been created for unwed-citizen mothers, the first prong, the interest of the connection to the United States doesn't exist, because the statute doesn't require any connection to the United States except U.S. citizenship. She could have been born, lived here a day, and moved somewhere else, and she would automatically confer.
Edwin S. Kneedler: No, not under the 1952 Act. Under the -- that was true under the 1940 Act. Under the 1952 Act, it's continuous presence for one year, but Congress deemed that to be basically somewhere in between the two U.S.-citizen parents situation in which any period of residency was okay and the mixed -- the mixed nationality situation where Congress said it had to be ten and five. Congress chose a -- a period somewhere in between.
Sonia Sotomayor: So why should it be different for an unwed father who has legitimized the child?
Edwin S. Kneedler: Because in that situation there are two parents. The argument is not that the father's ties are less. It's that there are competing ties, and Congress wanted to make sure that the -- that the strength of the U.S. citizen's ties were sufficient that they would outweigh or at least counteract where Congress could be sufficiently confident of the tie to the United States to grant citizenship in that -- in that situation. And again --
Elena Kagan: Why couldn't that have been done, Mr. Kneedler? Why couldn't these objectives have been served through entirely gender neutral language? For example, I know that there was a proposal that the Secretary of State made earlier than this statute was passed in the 1930s, which talked just about legal parents, which didn't refer to mothers and fathers at all.
Edwin S. Kneedler: Right. Several things about that. I don't think there is a claim in this case that Respondent would benefit from reading the statute in that manner, because I -- I don't think there's any question that he had citizenship and a legal parent when he was born. But beyond -- beyond that --
Elena Kagan: That would get rid of the gender inequality that is at the heart of his complaint. Whether or not he in the end benefits from it, the question here is whether the statute makes -- constitutes a violation of equal protection. One question we ask when we think about a question like that is, could Congress have written the statute? Could Congress have served its objectives in an entirely gender neutral way? And it seems as though here we have the -- the Secretary of State presented a statute to Congress that actually did that.
Edwin S. Kneedler: Yes. But it -- but as was pointed out at the time, as we point out in our brief, while that statute on its face looked gender neutral, in fact, it would have operated in exactly the same way as the statute that Congress enacted operated, because -- and no one has really taken serious issue with the proposition we have in our brief that at the moment of birth, it was the overwhelming rule that the mother was the only legally recognized parent. So in that -- this -- it would have operated in essentially the same way. And let me -- let me come at this in a slightly different direction. If, when you have one parent, the -- the mother in -- in this case, she gets to make all of the pertinent decisions about the child. Where they will live, where they will be domiciled, situations like that. When a father legitimates, he does not -- he does not then acquire the right to make -- the sole right to make all the decisions for the child. There are then two parents. He gets to --
Stephen G. Breyer: There's a lot of complicated things, but 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's lived here for one year. If it's his father who's an American, she becomes an American only if he's lived here for like eight years or ten years. Now, that's the difference, and why does that make a difference? What justifies the gender discrimination?
Edwin S. Kneedler: But that's the same rule that applies if the parents are married, which is --
Stephen G. Breyer: Two -- two wrongs don't make a right.
Edwin S. Kneedler: Well, but -- I don't think it -- no one is challenging --
Stephen G. Breyer: Perhaps. Yeah, yeah, I accept that no one is challenging, but I'm not asking that question. I'm asking the question of what it is -- I would repeat the question, which you heard, which I think is the equal protection question at the heart of the case.
Edwin S. Kneedler: Well --
Stephen G. Breyer: And the answer that you give in your brief was some endlessly -- I mean, it was very well-written and brilliant -- (Laughter.)
Stephen G. Breyer: -- and -- and -- but it went into this thing about statelessness persons, and -- and then we have, like, 17 briefs that say, no, no, that wasn't what the situation was with statelessness persons. And so I guess the question would be there: Was it enough of a statelessness person justification to warrant this gender discrimination? There is no point in you repeating that. I think I've taken in that argument. I'll have to make up my mind about it. Is there anything else?
Edwin S. Kneedler: Well, the -- the first argument we're making, again, is -- is the point of connection to the United States, and that's where the married couple comes in. Because no one is challenging the proposition that Congress can impose a residency requirement.
Stephen G. Breyer: Wrong -- wrong residency requirement. I did have Justice Kagan's question in mind when they read it. Why don't they ask the child if it would like, when it reaches the age of 21, to be connected to the United States and see if the child votes in American elections and lives there a while? Why are they so worried about the child's parents?
Edwin S. Kneedler: Well --
Stephen G. Breyer: I mean, in any case, you don't have to answer that.
Edwin S. Kneedler: No, no. The Act provides for the acquisition of citizenship at a date after birth, and then --
Stephen G. Breyer: Lived here for 14 years and so forth. All kinds of stuff. But --
Edwin S. Kneedler: No.
Stephen G. Breyer: I don't want to argue with you on this point. I want to know if I've got the reason for saying the mother, if she's the U.S. citizen and he is born out of wedlock, he only lived here for a year, but the father has to live here for, like, ten years or eight years or something like that, the real justification for that you've been able to find and the only one you've been able to find has to do with this thing about statelessness?
Edwin S. Kneedler: No. We have two -- we have two reasons. The first one is the connection to the United States, which is evident on the face of -- of the statute. When the father legitimates, what -- what the statute does is treat the couple as if they were married. In fact, in this case, the child was legitimated by marriage, and what the statute basically did was make the marriage retroactive to the date of birth.
Stephen G. Breyer: I'm going to make an example where they never married.
Edwin S. Kneedler: Well --
Stephen G. Breyer: They -- they like living together without being married. Now what's the justification?
Edwin S. Kneedler: Well, under the 1986 amendments, it's -- it is easier for the father to acknowledge the child. But in that situation, again, there are two -- there are two parents. And in that situation, the father does not get to make unilateral decisions about the child. He gets to be a parent too. He doesn't get to be the only parent the way the mother is the only parent before legitimation. And this is true in Lehr v. Robertson and -- and the cases this Court has had in -- in the domestic context.
Ruth Bader Ginsburg: Mr. Kneedler, you're -- you are giving a sophisticated rationale, but we're talking about legislation from 1940 and 1952. At that time, the statute books were just shot through with distinctions between children born out of wedlock and affiliation with the mother and the father. So this was a piece with all that legislation. And it wasn't until when Ms. Trimble again scored a typical. And the Illinois Probate Code said a child born out of wedlock can inherent to an intestate succession from the mother only, not the father. The laws just put mothers and children not born of the marriage together and separated fathers from their children.
Edwin S. Kneedler: Well --
Ruth Bader Ginsburg: And nobody thought until the 1970s that that was a violation of equal protection. But in a whole series of cases in the '70s, the Court recognized that, indeed, there was a violation of equal protection.
Edwin S. Kneedler: Well, insofar as -- I mean, there are two equal protection arguments that have been made in cases like that. One of them has to do with equal protection on the basis of illegitimacy. That -- that claim is not raised here with good reason, because the -- because Respondent, as -- as an alien outside the United -- person outside the United States and an alien by statute, did not have constitutional rights. So it's the --
Ruth Bader Ginsburg: My point was that the laws that existed put mothers and children born out of wedlock together and separated fathers from their children --
Edwin S. Kneedler: Right.
Ruth Bader Ginsburg: -- out of what the reality of their life was.
Edwin S. Kneedler: And in this Court's decision in Fiallo in the immigration context, that was exactly the situation, and the Court rejected equal protection claims based both on -- on sex discrimination and on illegitimacy.
Ruth Bader Ginsburg: That was not a claim of citizenship.
Edwin S. Kneedler: It wasn't, but we -- but we think -- we think, if anything, it follows Ofar Sharar, because citizenship is -- is entering into the citizenry or the membership of our society on a permanent basis with rights to come and go with all the rights and obligations. But I -- but I also wanted to address your -- your question with respect to the domestic context. This Court's decision in Lehr v. Robertson sustained a situation where you -- where a child was going to be put up for adoption. The mother would ordinarily have the sole right to decide that, but the situation was, what -- what about the father? Well, the father had to take some affirmative steps to put himself in a position where he could have a role, essentially a veto power over --
Ruth Bader Ginsburg: And the father did -- this father -- didn't the couple marry?
Edwin S. Kneedler: Yes, they did. But, again, at that point, he is -- he is not similarly situated to the mother, either at the time of birth or at the time he legitimates.
Samuel A. Alito, Jr.: Mr. Kneedler, can I ask you this question: If the Court thinks that this statute violates the Equal Protection Clause, does it necessarily follow that the Petitioner is entitled to the relief that was awarded to him by the Second Circuit; in other words, the granting of citizenship?
Edwin S. Kneedler: No, it by no means follows. And I --
Samuel A. Alito, Jr.: Well, could you address that? We -- we had a similar issue a few terms ago in the Flores-Villar case, but that was a criminal -- there, what was at issue was a criminal conviction. Here, criminal convictions are not at issue. The criminal convictions had nothing to do with alienage; is that correct?
Edwin S. Kneedler: Right.
Samuel A. Alito, Jr.: The underlying criminal convictions.
Edwin S. Kneedler: Right, right. No. They -- they were -- they were regular state law convictions.
Anthony M. Kennedy: I take it that the thrust of Justice Alito's question is, what -- what is the remedy if we -- if we level up, then it's easier for both? If we level down, then -- then it's harder for both?
Edwin S. Kneedler: We -- we think that -- we think the Court clearly should not apply to the U.S.-citizen fathers the one-year limitation. The general rule -- 1409(c) is an exception to a general rule that governs -- governs the vast majority -- or the three categories of cases: married fathers, married mothers, and unmarried fathers. There is no reason to think that Congress would have wanted unmarried fathers to have a more --
Anthony M. Kennedy: Well, are --
Stephen G. Breyer: One I could think of -- one I could think of, possibly, but I'd like your opinion about it: How many, do you think, unmarried fathers there were in 1952 who couldn't qualify under the long period of time -- eight years, you know -- and that's not so hard to do, if you're in the Army, because all your active duty counts. But they would have qualified under the one year. Now, I use the numbers in your brief, which were brilliant of you to try to find. I don't know how you found those. But I -- I -- that 4,000 number kept coming back. I thought maybe there were a couple of thousand a year. But do we know that there are more than a couple of thousand a year?
Anthony M. Kennedy: You know, I thought -- I thought you said there were untold numbers.
Stephen G. Breyer: Well, and there were the untold numbers, but that's -- that's true, they're untold numbers, and then that's not told. I'm trying to find the -- (Laughter.)
Stephen G. Breyer: I'm trying to find how close we could come to a guess.
Edwin S. Kneedler: It's -- it's -- it's very hard -- it's very hard to estimate. But -- but this Court's decision in -- in Nguyen identified the number of -- of people who travel abroad, and the numbers are a little bit higher even now.
Stephen G. Breyer: Well, let's go back to '52.
Edwin S. Kneedler: It was like 70 million that take trips abroad.
Stephen G. Breyer: Let's go back to '52, and the couple is unmarried and it's a father who, in fact, would qualify if he only had to live here for a year, but he wouldn't qualify if he had to live here for eight years before the baby's born. Never marries the baby -- never marries the mother. Okay. So I'm thinking, who could those people have been? They would have been -- they would have been people maybe working for American businesses or something, and there weren't that many at that time. So I -- I used your 4,000.
Stephen G. Breyer: That perhaps was not right.
Edwin S. Kneedler: We have -- we have wondered the same thing.
Stephen G. Breyer: Yeah. What if the --
Edwin S. Kneedler: The -- the only thing we were able to identify -- and this -- this is really not very closely on point, but the State Department told us that today, they -- they grant approximately, I think, 8,000 certificates of birth abroad. And of those, I think around 3,000 are under 1409(c), which means that those are the ones granted to U.S.-citizen mothers abroad. That doesn't -- the number of fathers who might benefit could be far larger than --
Elena Kagan: Could I -- I'm sorry. Were you finished?
Edwin S. Kneedler: Yes.
Elena Kagan: Could I -- I mean, we generally have a rule that when we find an equal protection violation, we level up rather than level down. That's been the Court's consistent practice. Wouldn't you agree?
Edwin S. Kneedler: That's been its practice, yes. But that -- that -- the Court has made clear that that is not constitutionally compelled. And there -- there are compelling reasons here not to do that.
Elena Kagan: Well, I find one compelling reason to do it -- and I just thought I'd offer this up to you and see what you have to say -- is that in this case, unlike in some cases, there really isn't a choice between leveling up and leveling down in one sense, because if you level down, this party gets no relief. In other words, you say, well, you level -- you just apply it prospectively. But then this party gets absolutely no relief. And so isn't that a problem? Isn't it the kind of the same problem as Justice Harlan recognized in -- in Welsh when he was dealing with a criminal matter? He said, you know, you can't level down because you can't give everybody the exact same benefit. So how do we deal with that?
Edwin S. Kneedler: Well, several things. In this context in particular, there are serious questions about whether the Court can, but, at the very least, substantial reasons why the Court should not grant citizenship to someone -- effectively grant citizenship to someone to whom Congress itself has not granted it.
Ruth Bader Ginsburg: It's not -- it's not citizenship. It's excising the unconstitutional part of the statute.
Edwin S. Kneedler: But if it -- it -- it would have -- it would have that effect. And -- and in a situation like this, we think the only proper remedy, given Congress' plenary authority, is to apply the ten-year rule to everyone and let Congress step in and -- and address the problem.
Samuel A. Alito, Jr.: If Petitioner's parents had been married, would he be entitled to relief?
Edwin S. Kneedler: No. And -- and that's -- that's the point. And -- and another point is there are other situations in which the Court finds a constitutional violation but does not grant relief. The qualified immunity context or the exclusionary rule. The Court might adjudicate a violation --
Samuel A. Alito, Jr.: If we were to -- if we were to level up, we would --
Anthony M. Kennedy: Go ahead.
Samuel A. Alito, Jr.: If we were to level up, the effect would be that Petitioner would be given preference over someone who was similarly situated except for the fact that that person's parents were married.
Edwin S. Kneedler: Yes.
Samuel A. Alito, Jr.: And if such a person were to then bring a suit, they would have a strong equal protection claim, would they not?
Edwin S. Kneedler: I -- I hesitate to say what they -- (Laughter.)
Ruth Bader Ginsburg: The claim -- the claim --
Edwin S. Kneedler: It illustrates the problems of the remedy --
Ruth Bader Ginsburg: Mr. Kneedler, the claim is gender discrimination. And married parents, they both have been -- mother and father have been treated equally badly. But when they are unwed, the mother is given the preference and the father is not. So we're -- we're talking about equal protection, not qualified immunity. You have two people, similarly situated. They have to be treated equally. The unwed father is equal to the unwed mother. The married mother, equal to the married father. So --
Edwin S. Kneedler: My only point was that there are situations in which the Court has found a constitutional violation but not granted relief. And -- and --
Elena Kagan: But not really a situation like this. Not a situation where we say, uh, there is an equal protection violation, and if we extend the benefit to everybody, we can take care of that equal protection violation, we can remedy the problem. But if we do not, if we try to level down, the effect of that is that the -- the party before us who has proved an equal protection violation gets absolutely no relief at all.
Edwin S. Kneedler: I -- I would like to answer that quickly and then reserve the balance of my time of -- of -- for rebuttal. I think it's also relevant, in taking into account the remedy, that this is not Respondent's own constitutional right. It's a third-party claim. There's no automatic right to raise the rights of third parties; in this case, the father. So I think that would properly be taken into account in deciding whether a remedy at all is feasible and what it would be.
John G. Roberts, Jr.: Thank you, counsel. Mr. Broome.
Stephen A. Broome: Mr. Chief Justice, and may it please the Court: Respondent's father was a citizen of the United States. Holding other things constant, had he been the mother instead of the father, there would be no question that he transmitted citizenship to Respondent under Section 1409. But the statute bars him from doing so on the same terms of the mother is not based on any innate or biological difference between men and women or mothers and fathers, nor does it ensure an interest in reducing statelessness, or -- nor does it serve an interest in reducing statelessness or ensuring that -- that citizenship by descent pass only to those children who are likely to learn American values. Both of the government's justifications for the gender differential at here therefore fail. I would like to begin by addressing the standard of review. There is no dispute here that Respondent has third-party standing to assert the equal protection claim of his father. That claim plainly is subject to intermediate scrutiny. In Fiallo v. Bell, this Court applied rational basis review to the claims of aliens who were seeking Visas based on their relationship to a U.S.-citizen relative. It is true, as the government points out, that the Fiallo plaintiffs included a U.S.-citizen father, but the Court in Fiallo disagreed that -- with -- with the dissenting justices and with the plaintiffs that his equal protection rights were at stake. And there was never any question that the aliens in that case were not U.S. citizens. Here the -- the dispute is one of -- the dispute centers on a -- on a right of Respondent's father to be treated equally to transmit his citizenship on the same terms that a mother could transmit citizenship under Section 1409.
Stephen G. Breyer: On this, but -- I would say at some point, the problem that worries me the most is, assuming this is unconstitutional, do you put the 14 years or whatever it is, ten years, on both, or the one year on both? And I -- I want to -- because he does have a point. You put the one year on both and then you have, when the parents are married, it's the ten years, and when it's the -- they're not married, it's the one year, and that really doesn't make much sense. But the -- the -- so I'm -- I'm -- hope you'll get to that. And in the course of that, I read an amicus brief that bothered me a lot, and it said, actually, the one-year requirement is tougher. And the reason it's tougher, it says that the State Department administers it. How they do this, I don't know, and I want to know if that's really true. But they administer it to say that if you are living in the United States you have to live here for one year. And if you set one foot across the board to get a drink of water at -- at Niagara Falls, you don't qualify. And, moreover, you have to prove that you never did set one foot to get a drink of water. Well, nobody could prove such a thing. So -- so I'm interested in that word "continuous" and how it is actually administered. Those are the two things that are worrying me in respect to remedy.
Stephen A. Broome: Justice Breyer, let me address the last question first. The word "continuous," I do not think, would -- is going to -- as a practical matter, it can't be applied in a way that somebody would have to come forward and prove that they were in the United States for 365 days. They would not have to show proof that they were actually in the United States on each of those days.
Stephen G. Breyer: All right. So I -- I -- that question. That is your answer. And maybe, if the Solicitor General has time, he could simply confirm that answer by saying yes.
Stephen A. Broome: Well, let me tell you how it was -- how it was applied in this case. So this case, when we were in the court of appeals, the court was -- th court remanded the case to the Western District of New York for a determination on that very question. Whether or not -- if -- if the -- in order to decide whether the court should address the constitutional issue, the court first asked whether Respondent's father would have satisfied the one continuous year rule. So we went to the Western District of New York, and we were not -- the government ultimately stipulated that, yes, because we have evidence of Respondent's father being in the United States, or in this case an outlying possession, from his birth in 1900 until the date of his departure for the Dominican Republic in 1919, we will -- we will presume that there was at least some period in there where he was in the United States for one continuous year. And I think that that presumption would apply in most cases. It certainly was applied in this case that we would not have to come forward and show proof on -- that he was in the United States on every single day. But I think if the Court were troubled that perhaps that -- that rule could be harder for some fathers or some -- or people to follow, but an alternative remedy could be to leave both options on the table.
Anthony M. Kennedy: If we leveled down and made it harder, would that affect the status of people who have obtained citizenship under the more lenient provision applicable to the mother?
Stephen A. Broome: Justice Kennedy, if this Court applied the leveling down remedy in a way that -- in a way that would actually equalize the -- the two similarly-situated classes here, it would have to -- yes, it would impact people dramatically because it would take citizenship away from people who already have it. And the Court has held --
Anthony M. Kennedy: Well, it's not necessary -- I assume it could be prospective because once you have citizenship, it's -- we -- we have cases that say it can't be taken away.
Stephen A. Broome: Right. And you can't -- I would submit --
Anthony M. Kennedy: So it would just be prospective by reason of that doctrine.
Stephen A. Broome: You could not apply a prospective remedy in this case, Justice Kennedy, because it would not affect anybody whose citizenship was governed by the 1952 Act. It would not affect Respondent -- it would not affect Respondent's father, anyone who was born between 1952 and 1986. If the -- to --
Elena Kagan: I mean, the problem, isn't it, Mr. Broome, that the very inequality that you are complaining of would remain, because it's impossible to claw back everybody else's citizenship, so it's really impossible to level down. And the very inequality that we've just found would remain.
Stephen A. Broome: That's right, Justice Kagan. The government's proposal, the prospective remedy is no remedy. It would not affect -- it would not -- it would not -- it would leave in place all of the gender discriminatory effects caused by this statute.
Elena Kagan: But it's not just that it doesn't give you citizenship, it's that it doesn't cure the inequality at all.
Stephen A. Broome: But --
Elena Kagan: Either by leveling down or by leveling up.
Stephen A. Broome: That's right. That's right, Justice Kagan. And -- and -- the government -- I would submit that the government's position would have to be the same if this was a case of race discrimination. The government would have to say that, yes, if the citizenship -- that the citizenship statute discriminated on the basis of race, this Court would be powerless to correct the residual effects of that racially-discriminatory statute. The Court -- we're not aware of any case in which this Court has said it is powerless to correct a case of race discrimination or gender discrimination or any equal protection violation.
Ruth Bader Ginsburg: What about the argument that in most of the cases where a benefit was extended, the -- the group that -- to which the benefit was extended was a smaller group than the group that already got the benefit, and here, if you add in married parents, then most people are under the more difficult rule, ten years or whatever it is, and it's the smaller group that gets the benefit.
Stephen A. Broome: Right.
Ruth Bader Ginsburg: So you would be extending a benefit enjoyed by a smaller group to a larger group.
Stephen A. Broome: Well, we're not -- we're not asking for -- the remedy we would propose, Justice Ginsburg, would not affect marital couples, and the government has pointed out --
Ruth Bader Ginsburg: But wouldn't you have an anomaly, then, that parents who are not married are preferred to parents who are married?
Stephen A. Broome: It -- it does appear at first that there is an anomaly there, but that anomaly is built into the statute as we see it today. The -- if you take the case of the unmarried mother, if she marries the father the day -- the day before the child is born, the ten-year requirement applies. If she marries the father the day after the child is born, the one-year applies.
Samuel A. Alito, Jr.: Well, that is true, but isn't it something else when we devise a remedy that deepens and extends an equal protection violation? Have we ever done that?
Stephen A. Broome: Well, I don't think the Court would be extending the -- the equal protection violation. I think that the --
Ruth Bader Ginsburg: Whatever it is, it wouldn't be gender discrimination.
Stephen A. Broome: It wouldn't be -- it could possibly be a legitimacy discrimination, but I think that that --
Samuel A. Alito, Jr.: Well, it would be a legitimacy discrimination. The -- the laws that are -- what are they subject to, and the case -- the past cases have involved discrimination against the children of unwed parents. And what has -- what is the standard of review there?
Stephen A. Broome: It's also intermediate scrutiny.
Samuel A. Alito, Jr.: And have we ever said there would be a different level of scrutiny if the discrimination was against children who were born to married parents? Would you make that argument?
Stephen A. Broome: No, I wouldn't make that argument, but I -- I think that that claim, that legitimacy claim could be brought by people today, people who are born to unmarried United States-citizen mothers.
Samuel A. Alito, Jr.: Yeah. But to children who are born to unmarried mothers, but not to children who are born to unmarried fathers, and you would extend the problem. You would have this Court extend the problem.
Stephen A. Broome: Well, it -- it would -- that same claim could be brought today. The only difference is whether or not it could be brought by the -- the child of a mother or a father. But I think if you go to the heart of the equal protection violation -- violation here, the fact that there may also be a legitimacy discrimination going on does not eradicate the equal protection violation. I think the two similarly situated classes here are unmarried United States-citizen fathers and unmarried United States-citizen mothers, and it quite -- it could be, Justice Alito, that Congress had good reasons for treating nonmarital children more leniently than -- at least in the case of mothers -- than marital children, because historically nonmarital children were a much more vulnerable class. They were the bastards. They were illegitimate. And they didn't have the same kind of rights, and, until 1940, in fact, they didn't have a statutory right to citizenship. So it could -- quite -- there could be logical reasons for --
Samuel A. Alito, Jr.: And you think that was Congress' intent in 1952?
Stephen A. Broome: I think in 1940 when -- when this --
Samuel A. Alito, Jr.: In 1940 you think that was Congress' intent.
Stephen A. Broome: I think that in Congress' intent, what we've seen from the historical record, Justice Alito, is that in 1940, when Congress passed the statute, it -- it was concerned about nonmarital children being separated at the borders from their -- from their guardian parents. The problem is that Congress assumed or the -- the administrative officials who enact -- or drafted the statute assumed that the -- the guardian parent was always going to be the mother.
Samuel A. Alito, Jr.: I mean, you can conceive the -- the possibility of members of Congress in 1940 or 1952 taking the floor and arguing, you know, we need to discriminate against the children of married parents, and in favor of the children of unmarried parents.
Stephen A. Broome: No, I -- I don't think that's what was going on at all.
Ruth Bader Ginsburg: They were giving -- they were -- the one thing I think is they were giving a benefit to the unmarried mother.
Stephen A. Broome: That's correct, Justice Ginsburg, and the --
Ruth Bader Ginsburg: Because they thought she was different from the unmarried father.
Stephen A. Broome: They -- they presumed that she would be -- that's a reflexive assumption that the mother -- at that time, it was a reflexive assumption -- I don't think it's as true today -- but that the mother was going to be the guardian parent, and they wanted to make sure that -- that the physical presence requirements that -- that Congress was passing were not going to have the impact of separating that nonmarital child from who they presumed to be the parent.
Anthony M. Kennedy: Suppose -- suppose there were some statistics that would indicate that over 100,000 new citizens would qualify or new persons would -- would qualify for citizenship if -- if we adopted leveling up. Would that affect our -- should that affect our decision?
Stephen A. Broome: I don't think it -- I don't think it should, because at the end of the -- at the --
Anthony M. Kennedy: And outside would gain 200,000.
Stephen A. Broome: Ultimately, I think the Court has to decide whether or not there is an equal protection violation here, whether or not --
Anthony M. Kennedy: Don't we have to consider what the Congress likely would have intended?
Stephen A. Broome: Yes, and -- and I think what the record shows is that given Congress' purpose here -- in fact, if you take either the purpose that -- that we have argued was the purpose of Section 1409, and the purpose that the government has argued, the statelessness purpose, both of those purposes are served by the remedy we -- we propose, by extending the benefits to unmarried -- unmarried fathers.
Elena Kagan: Mr. Kneedler --
Sonia Sotomayor: I'm sorry. If we leveled up, how would that affect children who were born to an -- to a citizen father, who were previously denied citizenship, could they come in and claim citizenship now?
Stephen A. Broome: If -- only if they satisfied all -- all -- all the other statutory requirements.
Sonia Sotomayor: Which means? The answer is yes?
Stephen A. Broome: Yes, yes, if they satisfied the other statutory requirements.
Sonia Sotomayor: The continuous one year.
Stephen A. Broome: And the legitimation requirements.
Ruth Bader Ginsburg: And the legitimacy.
Stephen A. Broome: Yes.
Ruth Bader Ginsburg: More than that, I think it would be -- at first the father would have had to have sired this child abroad, would have had to recognized the child, would have had to support the child.
Stephen A. Broome: That's correct, yes.
Ruth Bader Ginsburg: So I don't think that --
Stephen A. Broome: We're talking about a fairly limited class, I think here, Justice Ginsburg, and I -- I would like to turn to the government's arguments about the U.S.-connection interest.
Elena Kagan: But before you -- before you do that, Mr. Broome, just on the remedy question, very occasionally this Court has faced a situation when the natural remedy of something that it is holding. We were concerned a little bit about how -- whether Congress would prefer a different remedy. So, for example, in the Northern Pipeline case, what we did in a situation like that was we stayed our judgment for a period of time and allowed Congress essentially to do it a different way if it wanted to. And I'm wondering whether you had considered that possibility here, that we could order a kind of leveling-up judgment but stay it for some period of time so that Congress could decide whether it instead preferred some other way of dealing with the problem, whether that would be appropriate?
Stephen A. Broome: I -- I think, Justice Kagan, first and foremost, the Court needs to remedy the equal protection violation suffered by the parties. So if -- if that -- if the Court were to level up and make Respondent -- Respondent a citizen, and then stay the judgment thereafter, I -- you know, I think potentially that could work, but certainly --
Ruth Bader Ginsburg: What relief -- the relief would have been granted to this person. This is not some kind of class action.
Stephen A. Broome: Right. Ultimately, the Court has to decide -- has to remedy the equal protection violation before it and -- and not be thinking about -- well, it is not trying to remedy an equal protection violation only in the future. And I think that the fundamental problem with the government's remedy is that it could only apply to unborn children and future parents, and it would have no impact on anybody who is affected by the statute at issue before the Court today.
Anthony M. Kennedy: Justice Kagan's suggestion, Congress apparently should -- should have been aware of this after our Flores-Villar, but they were soporific. (Laughter.)
Stephen A. Broome: But what we have seen, Justice Kennedy is that since the date that this discriminatory provision was first enacted in 1940, it has consistently -- Congress has consistently reduced the burden on -- on fathers. So I think if -- if the question is, what would Congress do today, well, Congress has shown that it is continually reducing the physical presence requirements and the age calibration component of it to -- so that it has -- precludes the transfer of citizenship --
John G. Roberts, Jr.: Well, but, I mean, that argument seems to me that, in other words, they have considered the issue several times, and at no point did they take the step of eliminating it.
Stephen A. Broome: That's -- that's correct, Mr. Chief Justice, but they also haven't been confronted with a -- the last time that Congress considered the statute was in 1986, and it -- and it -- an equal protection challenge to these physical presence requirements was not -- was not made until the Flores-Villar case. And that was --
Stephen G. Breyer: Why -- why -- why did you use the word "today"? I thought what we were supposed to do is go back and figure out if they had known that it was unconstitutional to give the unmarried woman a year requirement to live in the United States, but to give the unmarried man where he is a citizen eight years' requirement, suppose they had known that was unconstitutional then, what would they have done then? Is it then or is it now?
Stephen A. Broome: Well, I think it's --
Stephen G. Breyer: It's a lot easier for you if it is now, I think.
Stephen A. Broome: I think it is now.
Stephen G. Breyer: But -- but -- but which is it -- is there anything -- I mean, you know, you are not going to help me if you just say that because that's in your interest to say. Is there anything that -- that you could -- you could point to that would say it's now and not then?
Stephen A. Broome: Well, as -- as a practical matter, I think that if this -- if the question is how would Congress remedy the statute, it -- it can only be remedied by the Congress sitting today.
John G. Roberts, Jr.: Well, but that's not the question. The question is what did the Congress that passed this statute intend.
Stephen A. Broome: And I think the answer to that -- well, the question is what -- is how the Congress would pass the -- if the question is how did the Congress that passed this statute, how would they remedy it today, then I think the answer --
John G. Roberts, Jr.: Not how they would remedy --
Stephen A. Broome: Sorry. How -- how would they remedy that -- that -- that statute if that --
John G. Roberts, Jr.: What would their understanding have been about the appropriate remedy when they passed the statute?
Stephen A. Broome: I -- I think -- I think the answer to that, Mr. Chief Justice, is that they -- they -- they were -- they were -- were concerned that the physical presence requirements would create a significant burden on -- on marital children, and that is why they lowered the requirements for the mother, because they presumed the mother was going to be the guardian and that -- and they -- and they presumed that the child should stay with mother. And they didn't want the physical presence requirements to create further burden on that child -- that -- that relationship.
Ruth Bader Ginsburg: What the Court -- the Congress in '40 or '52 would do is strange in this context, because the Court -- the Congress sitting then took gender-based lines for granted.
Stephen A. Broome: That's right. And I think that the -- if I could just sort of finish the Chief Justice's question, the -- it is not clear at all that that -- that the 1940 Congress would have chosen to just sever the 1409(c) entirely. And I think it would be just as destructive of Congress' intent to withdraw a benefit that Congress plainly intended to confer than it would be to extend the benefit that perhaps Congress did not --
John G. Roberts, Jr.: So do -- do I understand you to agree that when we approach these questions, severance and remedy, that we do look at what the Congress at the time when they passed the law would have done?
Stephen A. Broome: I'm not sure if there is a clear answer to that, Mr. Chief Justice. I think the Court could look at what Congress would do today and what Congress has done in the decades since.
Stephen G. Breyer: Did you find any case which supports that?
Stephen A. Broome: No, I haven't.
Stephen G. Breyer: Did you find any case against it?
Stephen A. Broome: No case for it or against it, Justice Breyer.
John G. Roberts, Jr.: We're going to find lots of cases when we address this question that talks about the intent of the Congress that passed the statute.
Stephen A. Broome: Certainly -- certainly there are plenty of cases on -- on that, Mr. Chief Justice. But the --
John G. Roberts, Jr.: And I don't think there are any, but -- you haven't found one, and I don't think anyone could find one.
Stephen A. Broome: But --
John G. Roberts, Jr.: But let's say, when we're looking at a question of congressional intent and a question of this, we look at what a Congress 60 years later would have thought.
Stephen A. Broome: But if -- as -- if we are looking at --
Ruth Bader Ginsburg: Is that true -- is that true of, say, Westcott when they -- the category was unemployed father and -- and it was enlarged to include unemployed mothers? Is it true of Goldfarb, the Social Security cases when -- what Congress did when it did it was just a piece with everything where the man was the dominant person in the family and the woman was the subordinate person. So to say we want to go back to a Congress that had that mindset and ask what they would have done is a little hard.
Stephen A. Broome: It is difficult, and -- and --
John G. Roberts, Jr.: Well, then don't pretend that you're implementing Congress' intent when you say we're going to -- we're going to put in place when we're talking about a remedy, not in terms of finding a violation. Don't pretend that you're implementing Congress' intent when you look at what Congress -- a Congress 60 years later would do.
Stephen A. Broome: Well, Mr. Chief Justice, when you are remedying a gender-discriminatory statute by leveling up or leveling down, you are never implementing Congress' intent. You're trying --
Stephen G. Breyer: That's true. But you can ask, what would they have wanted if they knew they couldn't make this discrimination? That's why I thought, well, if you have to go back to '52, they're going to either have to take the benefit away from the woman or give it to the man. And the two principles that support you is Congress hates taking away a benefit they give anybody. They get into a lot of trouble when they take benefits away. (Laughter.)
Stephen G. Breyer: So that would move them in one direction. And it would also move them in the same direction if there are just a handful of them who might really benefit. That's why I asked that question. But nobody -- but if there were millions of men who might benefit, then they might get a little worried about what they're doing, particularly since they're discriminating even more, you know, the other way against the married couple. So that's why I was interested in those questions. But I take it you have said pretty much what you can say on that.
Stephen A. Broome: As to Congress' intent, yes, Justice Breyer.
Ruth Bader Ginsburg: As to the number -- number of people, all you can say is they would have to meet a lot of requirements that you would have -- the U.S. citizen sired a child abroad, recognize that child, supported that child, and --
Stephen A. Broome: Right. You're -- we are talking about, I think, a fairly limited class. These are -- this is just children who were born outside of the United States to unmarried United States-citizen fathers who cannot satisfy the ten-year requirement, but they can satisfy the one-year requirement, so they're somewhere in that nine-year period. I think that --
Sonia Sotomayor: Perhaps you're assuming Justice Ginsburg's point that the father still has to have legitimatized the child without marriage. Because if they married the mother, they would end up having to fulfill the five-year. So it would have to be -- are you accepting her proposition that the father has to legitimatize the child?
Stephen A. Broome: We're not -- we're certainly not challenging the legitimation requirement.
Ruth Bader Ginsburg: Is that -- that's statutory and also the support requirement. Now, they may be independently challengeable, but they are --
Stephen A. Broome: And I think in this case they could be, because this is -- this is a different requirement than -- than what was at issue in the Nguyen case. In Nguyen, the Court addressed a paternal acknowledgement requirement and said, well, that is a minimal burden for the five-year satisfied. He can -- he is not similarly situated as -- with respect to biological proof of his relationship with the child. But the requirement that he then come forward and take some affirmative step to demonstrate that by acknowledging the child, that -- that is -- that satisfies intermediate scrutiny. But here we're talking about a legitimation requirement. And if, as the Historians have pointed out -- the -- the Historian amicus brief points out, that legitimation really meant marriage, then that is a much more significant burden placed on the father because the father may not be able to -- may not be able to satisfy that requirement at all. For example, if the mother is not around -- is not available, if she doesn't want to marry the father, or if she is dead.
Ruth Bader Ginsburg: Or if she is already married.
Stephen A. Broome: Or if she is already married.
Stephen G. Breyer: Where is the legitimation requirement? I see 8 U.S.C. 1409(c) It doesn't say a word about legitimation.
Stephen A. Broome: It's in 1409(a).
Stephen G. Breyer: Well, 1409(a) doesn't apply. It says "notwithstanding subsection A."
Stephen A. Broome: Right. And so the --
Stephen G. Breyer: It says: "Notwithstanding subsection (a), somebody who is born outside the U.S. out of wedlock shall be held to have acquired at birth the nationality status of his mother if the mother is a U.S. citizen and had been physically in the United States for one year." So I don't see anything that says they have to be legitimized for the mother to get that.
Stephen A. Broome: In 1409(a), it applies only after -- after there's been --
Stephen G. Breyer: In 1409(a) And what the first words of (c) are, "notwithstanding the provision of subsection A." Anyway, I guess I could figure it out later.
Stephen A. Broome: Well, no. (Laughter.)
Stephen A. Broome: Let me see if I can try and help you, Justice Breyer. The remedy imposed by the Court of Appeals is to -- as 1401(a)(7), which the -- the physical-presence requirement, the ten- and five-year physical-presence requirement, the Court of Appeals -- that -- that applies through 1409(a) 1409(a) is the provision that applies to fathers. So the -- the remedy would be to apply the one-continuous-year rule in 1401(a)(7) -- and I grant you this is complicated -- 1401(a)(7) as it -- as it applies through 1409(a) And that would put mothers and fathers on equal footing with respect to the physical-presence requirements. And then the legitimation requirement still applies to fathers. But if I could address the -- the government's U.S.-connection interest in my time remaining. The statute here absolutely bars a U.S.-citizen father under the age of 19 from transmitting citizenship to his foreign-born child, even if the father spent his entire life in the United States up until the day the child is born, and even if the father legitimates the child and seeks to raise the child in the United States. By contrast, the statute automatically confers citizenship on a child whose U.S.-citizen mother spent only a year of her life at any point in her time -- any point in her life, even during infancy, and even if the -- even if the mother marries the alien father, and then -- and then the child is raised by the mother and the alien father. It is impossible to view a statute that permits these results as related to a U.S.-connection interest. And I would submit, Your Honor, that the statelessness interest does not justify the discrimination either. There is no dispute here that the statute creates a risk of statelessness for children born abroad to unmarried United States-citizen fathers who legitimate their children but who cannot satisfy the ten -- ten- and five-year physical-presence requirement. And the statute -- the -- the statute confers citizenship on a child born abroad to an unmarried United States-citizen mother, even if that child faces -- even if her child faces no risk of statelessness at all because she is born -- the child is born in a country that assigns citizenship by virtue of being born there.
Sonia Sotomayor: Well, we aren't leaving children uncovered whose mothers have not had a continuous one-year residency in the United States, even though that mother may be an American citizen.
Stephen A. Broome: That's -- that's right. My point is that her child may have no risk -- face no risk -- risk of statelessness at all, and -- and yet, the statute still confers citizenship --
Sonia Sotomayor: I just said they do. Because the mother can only pass on citizenship if she's been in the United States continuously for one year prior to the birth of the child, correct?
Stephen A. Broome: That's correct.
Sonia Sotomayor: So what happens to a citizen mother who can't meet that one-year requirement? What happens to her child?
Stephen A. Broome: That -- that child could be stateless. That child is not --
Sonia Sotomayor: So there is a risk of statelessness no matter what?
Stephen A. Broome: There is a risk of statelessness, but that risk of statelessness is created by these physical-presence requirements that Congress chose to impose, whether it's the mother or the father. The risk is greater with respect to the fathers. It is lesser with respect to the mothers. But it is these physical-presence requirements that create the risk of statelessness, and therefore, this scheme cannot be justified as seeking to reduce a risk of statelessness. If the Court has no further questions, thank you.
John G. Roberts, Jr.: Thank you, counsel. Three minutes, Mr. Kneedler.
Edwin S. Kneedler: Thank you, Mr. Chief Justice. First, on the merits. The provision here furnished two substantial governmental interests. At the time the child is born, and there is only the mother that as a recognized parent, it is uncertain whether the child will ever be legitimated. Congress has a substantial interest in conferring citizenship on that child at birth if it concludes that there is a sufficient connection to the United States. Congress also has a substantial interest in not divesting that child of citizenship if the child is later legitimated by an alien father. So there are two substantial interests that are furthered, and it is precisely tailored to take care of those two interests.
Ruth Bader Ginsburg: But if you're concerned about the stateless children in the world, then -- if -- if you have a problem with the father who can't transmit his citizenship in a country where women citizenship goes by who is the father.
Edwin S. Kneedler: Well, it -- it -- if the -- if the father later legitimates, he's put in the same position as if the -- if they were married at the time the child was born. And we know from 1401 that that -- that that is a -- that that is a --
Stephen G. Breyer: But today there are -- today there are lots of fathers who do look after their children. I don't say they do it perfectly, but they try.
Edwin S. Kneedler: No, but all --
Stephen G. Breyer: Now, suppose just the words you said, take the same words, just put in "father" instead of "mother," and today why is it any different?
Edwin S. Kneedler: Well, it -- it isn't different. I -- I just want to repeat again. When the father legitimates, there are two parents. In Lehr v. Robertson --
Stephen G. Breyer: I'm not talking about legitimacy. I'm talking about the ones -- a surprising number of people, unfortunately, never get married. And a lot of them do live abroad, and they do have children.
Edwin S. Kneedler: Well, certainly --
Stephen G. Breyer: So that's one focus. And certainly your words applied where it is the mother. And all my question is, couldn't you take those same words and apply it where it is the father?
Edwin S. Kneedler: No. I -- I think it's a critical importance in citizenship laws to have a legal occurrence in order to pass citizenship, and that's legitimation. Your suggestion that you could -- that the father could pass on citizenship without even legitimation, which this Court basically sustained on the --
Stephen G. Breyer: Doesn't (c) say that? Doesn't (c) say that?
Edwin S. Kneedler: Yes. But -- but this is a question of remedy. And -- and to -- to -- but -- and also Lehr v. Robertson, if the father filed -- filed a notice and -- or filed a document and got notice of the proceeding, he didn't get the veto power that the mother had before legitimation. He just got to be a parent too. And that's exactly what happens here when the father legitimates. He's not put in the same position as the mother because of two parents; it's a two-parent family. With respect to remedy, let me point out at page 38 of our brief where the statelessness is addressed. It's clear the interests that I identify, that Congress wanted to ensure that the child would have citizenship at birth and not be divested.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: I think you have a moment or so, Mr. Ringold.
Solie M. Ringold: Mr. Chief Justice and may it please the Court. Mr. Justice Whittaker, in response to a question concerning the necessity or the right to a hearing, it was our opinion that this statute in this particular situation deprived the plaintiffs of a hearing. For that reason, at its inception, our complaint was drawn on that basis and paragraph 5 of our complaint as it appears on page 2 of the printed record, upon they did execute such oath, his employment be terminated. Thereupon, there was a denial by the State. Request for admissions were made which admitted that the statute would be construed in that fashion to deny a hearing. The findings of fact in conclusions of law, conclusion, Finding of Fact number 6 was then included.
Earl Warren: You say there was a stipulation in the trial below that -- to the effect that that he would not be -- these people would not be accorded a hearing.
Solie M. Ringold: Request for admission were made and in -- and the findings of fact were based upon the answers to the requests for admissions.
Earl Warren: Well, I thought you said --
Solie M. Ringold: Yes.
Earl Warren: -- from the matter of stipulation just a moment ago.
Solie M. Ringold: I said their answers, Mr. Chief Justice --
Earl Warren: Yes.
Solie M. Ringold: -- to our request for admissions, indicated that a hearing would not be granted.
William J. Brennan, Jr.: Do you remember what the number of that, Mr. Ringold?
Solie M. Ringold: I do not believe that is in the printed record.
Earl Warren: But it --
Solie M. Ringold: I would have to go through --
William J. Brennan, Jr.: Number 5?
Solie M. Ringold: Two or five. In any event --
William J. Brennan, Jr.: (Inaudible)
Solie M. Ringold: In any event --
Earl Warren: Let me ask you this, Mr. Ringold. In your brief, you state that -- that the 1955 law repealed that portion of the law which -- which accorded a hearing.
Solie M. Ringold: This --
Earl Warren: Now, and Mr. Fuller says that that law as it set out on -- on page 67, 68 of his brief is still a law and that such a hearing can be held. Will you tell us why there is that difference of opinion between you and what you base it on?
Solie M. Ringold: The question I assume, Mr. Chief Justice, depended upon whether or not a review by implication took place or not. This was why we interpreted as a review by implication having taken place by virtue of the 1955 Act. And again, that was why we framed the complaint originally to specifically raise the question. And this matter was argued in the lower court, it was argued in the Supreme Court of the State of Washington. We of course extensively argued it with respect to the Attorney General's list. We did raise the question with respect to a -- we -- we cited Slochower and those other matters. Then when the original opinion of the Supreme Court came down, the focal point then, it became much more pointed as to whether or not the hearing issue was raised. And in our petition for rehearing, pages 41 to 45 of the unprinted record, we specifically raise the --
Hugo L. Black: What did you say? And could you just read us a sentence or two to see that --
Solie M. Ringold: Yes, Your Honor. The Wyman case clearly establish that public employment was not a privilege which could be denied for any reason whatsoever. The United States Supreme Court's unanimous holding was that eligibility for public employment can only be conditioned on requirements which had a reasonable relation to fitness. The importance of this aspect of our argument was totally overlooked by this Court in its failure to mention and apply the doctrine of Swayze, Schwer, Canniburgh, Slochower. It is --
Speaker: (Inaudible)
Solie M. Ringold: I am reading from the unprinted --
Speaker: (Inaudible)
Solie M. Ringold: This is our petition for rehearing.
Hugo L. Black: But you can leave that with us, can't you? Or else I should --
Solie M. Ringold: It is in the record.
Hugo L. Black: -- the other side would agree to this. (Inaudible)if they agreed to this.
Solie M. Ringold: Yes, it is in the record.
Hugo L. Black: Do we have that --
Solie M. Ringold: Yes.
Hugo L. Black: -- for rehearing?
Solie M. Ringold: Yes, Mr. Justice Black. It is no answer to say Learner Dylan and Adler. Each of these cases involved hearings to determine the fitness of the employee for employment under the state's right to investigate the qualifications of the employees. And then we underlined. "There is not one case decided by the Supreme Court of the United States which holds that the State may discharge an employee solely upon refusal to subscribe to an oath that he is not a subversive person."
Felix Frankfurter: Am I -- am I wrong, as I read complete through your 86-paged brief in the Supreme Court too hurriedly to have missed that you discussed this opinion in that brief.
Solie M. Ringold: Page 35 of our brief, Your Honor.
Felix Frankfurter: Under what heading does that come? And just with the -- the heading, thinking that the heading --
Solie M. Ringold: Under due process.
Felix Frankfurter: The first point was the hearing as to the nature of the organization, is that right?
Solie M. Ringold: Court please, page 35 of the respondent's brief in the Supreme Court of the State of Washington. In Slochower versus Board or Education's --
Felix Frankfurter: What is the heading under which this appears?
Solie M. Ringold: The heading under which it appeared is under due process that scienter is a necessary element in oaths of nonmembership in proscribed organizations. We then cited Slochower. The plaintiff claimed this privilege, we quoted Mr. Justice Clark, then we said the Court discusses Adler Garner and then says, “But in each of these cases, it was emphasized that the State must conform to the requirements of due process. The summary dismissal of appellant violates due process of law.” This is emphasized, Mr. Justice Frankfurter.
Felix Frankfurter: Do you think that's the discussion of the requirement of a hearing?
Solie M. Ringold: I -- well, we certainly felt it was.
Felix Frankfurter: Well, maybe -- maybe it was. All I said was when I saw --
Solie M. Ringold: We --
Felix Frankfurter: -- the headings that scienter was required, I didn't think I'd find under it a discussion of hearing that may --
Solie M. Ringold: Well --
William J. Brennan, Jr.: (Inaudible)
Solie M. Ringold: I am sorry, Mr. Justice Brennan. This was one of them, and in their -- I think there were others and I don't have them before me now.
William J. Brennan, Jr.: (Inaudible)
Solie M. Ringold: My recollection was that after the admissions were made, an argument was had before the trial court, I prepared the findings of fact and the conclusions of law and they were presented to the Attorney General's office. They incorporated finding number 6, they were approved and in -- in accordance with the original complaint which initiated the action.
Hugo L. Black: Well, your arguments would not -- before the trial court, your arguments or the other side's arguments?
Solie M. Ringold: There were. We presented a written brief and the state's Attorney General --
Hugo L. Black: Are they in the record?
Solie M. Ringold: They are not, You Honor.
Hugo L. Black: Are they available?
Solie M. Ringold: I believe they are.
Earl Warren: Would each of you supply us with -- with your briefs, please, a copy of your brief?
Speaker: Yes, we will, Your Honor.
Felix Frankfurter: We have your brief in the record, but I do not think --
Earl Warren: Not the trial court.
Hugo L. Black: Not the trial court.
Felix Frankfurter: No, no because that means --
Hugo L. Black: Is it their briefs in the trial court?
Felix Frankfurter: Yes, but even beyond. In the Supreme Court, we have the appellant brief, but we do not have the state's brief, Mr. Chief Justice.
Earl Warren: The state wasn't a company --
Hugo L. Black: But the State have a --
Felix Frankfurter: The State of the appellant in the Supreme Court of -- of --
Earl Warren: Yes.
Felix Frankfurter: And we do not --
Earl Warren: Yes.
Solie M. Ringold: Mr. Justice Frankfurter --
Felix Frankfurter: We do not have that. We do have the -- the present appellant's brief.
Earl Warren: Yes.
Solie M. Ringold: Yes. The --
Earl Warren: Would you supply that too, please, Mr. Fuller?
Herbert H. Fuller: I will, Mr. Chief Justice.
Earl Warren: Thank you very much.
Solie M. Ringold: The state's brief in the State Supreme Court only argued the state constitutional issues, did not argue the federal constitutional issues which had been raised. They were the appellants --
Felix Frankfurter: Yes, isn't it?
William J. Brennan, Jr.: What you had advanced (Inaudible)?
Solie M. Ringold: We'll do so, Mr. Justice Brennan. May I just mention, our brief in opposition to the motion to dismiss, I think that we discussed that. A motion to dismiss was made upon this precise ground.
Earl Warren: Thank you.
Solie M. Ringold: Thank you.