Equal graveyards, equal vineyards: via Constitutional Law Profs Blog

I love reading a well written account of appellate argument.  If it’s funny (Dahlia Lithwick in Slate!), that’s great, but it doesn’t have to be. I also think that CUNY’s Prof. Ruthann Robson is quite amazing. Her scholarship is extremely interesting (I spent an evening about a month ago binging on it – no hangover!) and her writing is beautiful.  Here is a link to her website, and here is a profile of her in her school magazine.

Robson is one of two editors of the Constitutional Law Prof Blog, so even if you binge, you can still find fresh thoughts from her over there.  Such as  Flores-Villar Oral Argument Analysis: Father’s Rights or Citizenship Rights? And What Remedy?. Excerpt:

The United States Supreme Court heard oral argument today in Flores Villar v. United States.  …. the statute at issue in Flores-Villar is the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship.  Moreover, in the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

Robson writes about the debate over remedy.  It looks, in my quick read, like the old “equality with a vengeance” discussion from Schachter v. Canada, [1992] 2 S.C.R. 679.

Here’s the SCC debut of the phrase:

Perhaps in some cases s. 15 does simply require relative equality and is just as satisfied with equal graveyards as equal vineyards, as it has sometimes been put (see Caminker, at p. 1186).  Yet the nullification of benefits to single mothers does not sit well with the overall purpose of s. 15 of the Charter and for s. 15 to have such a result clearly amounts to “equality with a vengeance,” as LEAF, one of the interveners in this case, has suggested.  While s. 15 may not absolutely require that benefits be available to single mothers, surely it at least encourages such action to relieve the disadvantaged position of persons in those circumstances.  In cases of this kind, reading in allows the court to act in a manner more consistent with the basic purposes of the Charter.

The Caminker who authored the evocative phrase in the title of this post is now Dean of Michigan Law: Caminker, Evan.  “A Norm‑Based Remedial Model for Underinclusive Statutes” (1986), 95 Yale L.J. 1185.

Back to the original post, the remedy question is thus: if there is an equal protection violation, should the residency requirement for mothers be raised, or should the residency requirement of fathers be lowered? If you’re interested, do click through to Constitutional Law Profs.  Robson’s post has lots of links to previous discussions like this one, so that you will come away feeling fully informed. I’ll try to remember to post the result when the reasons come down.

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