Fiallo v. Bell – Oral Argument – December 07, 1976

Media for Fiallo v. Bell

Audio Transcription for Opinion Announcement – April 26, 1977 in Fiallo v. Bell


Warren E. Burger:

We’ll hear arguments next in number 6297, Fiallo against Bell.

Ms. Calvo you may proceed whenever you’re ready.

Janet M. Calvo:

Mr. Chief Justice and may it please the Court.

This case is in appeal —

Warren E. Burger:

Will you draw that microphone a little closer to you.


And perhaps raise the lectern a little.

That will get you in better communication with the Court.

Very well.

Janet M. Calvo:

Thank you.

This case is in appeal from the judgment of a divided three-judge court in the Eastern District of New York.

The challenge statutes in this case, afford statutory right to United States citizen parents which makes it possible for them to live in this country with their alien children.

It does so by allowing the parent to request an exemption of his alien child from restrictive numerical quota and labor certification requirements.

As fully explained in our reply brief, the recent amendments to the Immigration Act now the scope of this case respectively to the issue of the United States citizen parent seeking the classification of his alien child as an immediate relative and thus exempt from labor certification and quota requirements.

While other similarly situated parents made proof their family relationship with their children and thereby obtain their entry into the United States.

Citizen fathers of illegitimate children are completely precluded from proving their parent-child relationship.

Thus, Cleophus Warner, even though he has formally acknowledged his child always supported his child, lives with his child, loves and cares for his child is completely unable to prove his relationship with his child and to achieve his goal of living with his child in this country.

This case is unique one in the immigration law context on several grounds.

First and foremost, this case involves the rights of citizens not of aliens.

The challenge statutes were designed to achieve the benevolent result of allowing a United States citizen parent to live together with his child.

But the statute discriminates against some United State citizen parents, the fathers of illegitimate children.

In doing so, the statute infringe on these citizens fundamental interests in their parent-child relationship and as a possible consequence the incidents of their citizenship.

Mr. Warner is put to an impossible choice.

He may give up his desire to care for and live with his child and be able to live in this country, the country of his citizenship.

Warren E. Burger:

Well, is that an impossible choice?

Can’t many American citizens live in other countries so isn’t it impossible or rather strong word to apply to it?

Janet M. Calvo:

For Mr. Warner, it is in a serious — by impossible, I mean very serious infringement on his choice to live in the United States, the country of his citizenship.

In fact his citizenship was a very hard earned one as Mr. Warner is a naturalized citizen of the United States.

He chooses to live in this country and he has made that know by becoming a naturalized citizen and living here for many years.

Another factor which makes this case a unique immigration case is that the legislative history discloses the total absence of any foreign policy concerns or a Congressional choice to exclude or expel a group of aliens who are perceived to post a threat to our national security or to our general welfare.

Janet M. Calvo:

Illegitimate children are not an excludable class under the statute and therefore there is no determination that they are any danger to us.

These factors demonstrate that this case is fundamentally different from any of those prior immigration cases upon which the government relies.

There is no question but that the actual and expressed Congressional purpose in passing the challenged statute was to allow citizen parents to choose to live with their alien children in this country.

But the statute presumes that a citizen father will never have close ties with his alien illegitimate child and will never want to choose to live with him in the United States.

How can — I feel a little difficult to understand the argument in this case and in the other cases that it was the — in view of the fact that Congress did what it did, how can you argue that Congress’ purpose was to do something else?

This is not a normal argument in this case, we get it in good many cases and I find it always very difficult to follow.

Janet M. Calvo:

I think there is — maybe the difference is between classification and purpose.

There is nothing in the legislative history which evidences — any other intention as an overriding purpose on behalf of Congress other than allowing parents to live with their children.

Of course to the extent that a certain group is left out at the classification system, they therefore intended it by omission to leave them out.

Unless, this is really inadvertent, this statute reflects the intent and purpose of Congress, does it not?

Janet M. Calvo:

Well I —

Unless, it was accidental or inadvertent that I don’t understand that to be any part of your argument.

Janet M. Calvo:


We feel that if in consideration of the overriding purpose of Congress, if they new that a man like Mr. Warner who has acknowledged his child and always cared for his child and lives with his child would be totally barred from proving his relationship with his child and completely barred from living with his child.

They would have intended that result because what Congress was basically concerned with was allowing citizen parents to be united with their children in the United States.

But that isn’t the way we usually construe a statute as it to say that if Congress just had known that this precise language that they had adopted had this effect on this particular man, they wouldn’t have passed on those terms?

Janet M. Calvo:

Pardon me I didn’t understand the question.

Well, you’re suggesting that because you think that Congress if it had seen the effect of the statute on your client would have passed a different statute that we ought to construe it in a different way?

Janet M. Calvo:

No, I am not arguing that, I am just arguing that with regard to the overwriting purpose of Congress the classifications has drawn are irrational and don’t serve that purpose.

What do you mean when you are talking about the overriding purpose of Congress?

Surely there’s no place where Congressional purpose is better found than in the language Congress has shown — chosen to enact into a statute, is there?

Janet M. Calvo:

I think that there is a confusion between classification and purpose.

You could say in a case in which a legislature said that we are building a school for white children, we do not want black children to attend that.

That basically fulfilled their purpose because that was the way the classification was drawn.

What we are saying is that from the legislative history, Congress specifically stated that by creating a statute they were intending to promote the family unity of the United States citizen and we are further contending that the classification which leaves out the fathers of illegitimate children does not promote family unity and in fact —

Well but isn’t the logical inference from that that Congress did not intend to promote family unity with respect to that particular class of individuals since it expressly excluded them.

Janet M. Calvo:

But you could say that about any statute.

Well then we usually do.

Janet M. Calvo:

I think there is a confusion between classification and purpose, I mean the — I think that in its recent cases this Court has looked very closely at what Congress said itself was doing in its legislative history and that —

Well you think that’s better evidence of what Congress intended by the legislation and the language that it chose?

Janet M. Calvo:

I think that there is a confusion with intent and purpose.

I’m not arguing that there was any — that it is any other than the classification leaves out fathers of illegitimate children.

Harry A. Blackmun:

Well, at least Ms. Calvo even on your theory Congress went part of the way.

Janet M. Calvo:

Yes it did go part of the way.

It did go part of the way by presuming that parents similarly situated to a citizen father of an illegitimate children — of an illegitimate child who always have close ties with their children.

For example under the stepparent provision of the law, if Mr. Warner married, he would be presumed to have close ties with his wife’s illegitimate child.

Ties that he is presumed never to have with his own child, and on the other hand, his wife would be presumed to have close ties with Serge his illegitimate child, ties that the father himself is presumed never to have.

This is similarly true under other provisions of the statute, a father who fortuitously lived in a place where an action on his — by himself, he was capable of legitimating his child.

For example, by a simple acknowledgment would be presumed to always have close ties with the child while a man like Mr. Warner who has not only acknowledged the child but always supported the child and lives with the child because he doesn’t happen to live in such a place is completely precluded from even proving his parent-child relationship.

Also an adoptive parent, a prospective adoptive parent and the mother of an illegitimate child under the statute are presumed to always have close ties with their children while the father of an illegitimate child no matter how close his ties maybe in reality is totally barred from proving his close ties and its presumed not to have this close ties.

Basically, what we are contesting is this total barring under the statute, especially in this case where the fundamental interest of a parent in the care and companionship of his child is involved.

Mr. Warner’s case illustrates it, he is — because of the abandonment of the mother, the only parent this child has and he is willing to take responsibility for that child as he always has and wishes to live with the child in this country in order to do so.

How old is Serge now?

Janet M. Calvo:


I think he’s about 16.

He was much younger of course when the case began.

It’s been around for quite a long time.

The Government attempts to defend the discrimination in this case on the ground of purported administrative inconvenience in the prevention of spurious claims.

There where absolutely no Congressional expression that vis-à-vis unwed fathers, they were concerned about administrative inconvenience.

But in any event the challenge potential — the alleged potential for his spurious claims does not justify the discrimination in this case.

This is because any potential for his spurious claims in the case of a father of an illegitimate child is no different than the potential for spurious claims for many other parents who are covered by the challenge statutes.

For example, under the stepparent provision, the immigration and councilor officials would have to make the same exact determination as they would have to make in this case, the paternity of an illegitimate child.

Practically, if I may point out, they already have routine methods of doing so.

They have a system setup, they have forms, they know what kind of proof they want to prove these relationships.

We do not contest or contend with any rigorous burdens of proof that are imposed.

What we seek in this case is only the opportunity of the unwed father of an illegitimate child to prove his relationship by whatever proof the immigration or councilor officials impose upon him.

It is clear under the law that the burden of proof lies with the parent of seeking the benefit for his child.

In summary, and I would like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well.

Janet M. Calvo:

It cannot be over emphasized that what is involved here is the rights of citizens who, like Mr. Warner have always acknowledged and supported in take good care of their children and who wish only to be treated like other parents and in giving an opportunity to prove this relationship.

I suppose, Ms. Calvo, the Government disagrees with your focus.

It puts the focus on the child, doesn’t it, rather than citizen parent?

Janet M. Calvo:

Yes that is an entirely erroneous focus Your Honor.

If the parent does not request that the child entered the States, the child does not enter the States that’s by statute at Section 204 of the Immigration and Nationality Act.

The benefit is given only to the citizen parent.

The child cannot claim entry under the challenged statutes merely because he is related to a citizen.

The citizen has to specifically request that this be done on behalf of his child.

The citizen also has to further agree that he will take care of the child, support the child.

He must reveal his assets, his — and he must meet specific limitations which demonstrate that he is capable and willing to support the child while the child is in the United States.

Incidentally, suppose that it weren’t Mr. Warner we were speaking of but his parents who lived here and were citizens.

Would they be in a position under the Act to bring in Serge to stay here?

Janet M. Calvo:

The grandparents?


Janet M. Calvo:

No, Your Honor.

The special provisions of the Act relate to parents of children.

So that siblings also would not be —

Janet M. Calvo:

No, this is a very narrow situation.

It’s a situation that deals only with the parent-child relationship.

Ms. Calvo, it occurs to me that when you emphasize that the discrimination is between parents of illegitimate children on the one hand and parents of legitimate children on the other, you really are not entitled to rely on the cases that rely on the unfairness of visiting the sins of the parents on their children.

Do you understand my point?

Janet M. Calvo:

I believe that there are cases in which illegitimacy discrimination has also and I believe it was in the companion case to Levi, the Glona case.

The illegitimacy discrimination was against the parent as well.

Here there is — the party is the parent and the parent is discriminated against in several different ways in comparison with several other similarly situated parents.

It’s on account of his own conduct whereas in the case we just heard before, the child was being discriminated against on the count of his natural parents conduct.

Janet M. Calvo:

That’s true.

If you have no further questions, I’d like to reserve the rest of my time.

Warren E. Burger:

Very well, Ms. Calvo.

Janet M. Calvo:

Thank you.

Warren E. Burger:

General Tyler.

Harold R. Tyler, Jr.:

Mr. Chief Justice, and may it please the Court.

Harold R. Tyler, Jr.:

I think it is in a common place of course in the — as a backdrop to this case that Congress need not allow the admission of any aliens much less need Congress grant immigration preference to any aliens.

The core of this case of course has to do with the latter that is with preferences which Congress attempted to achieve by classifications adopted first in 1952 and most importantly for this case of 1957 and Section 101 (b) (1) and (2).

Very briefly, the Government complains that these are classifications which Congress has the primary jurisdiction to adopt.

They are rational and they are related to illegitimate immigration purpose unless they do not offend the Due Process Clause.

Preliminarily, I might say that there is certain things which the Government contends are really not involved in this case though one might assume so if you were to listen to some of our arguments.

I think as the plaintiffs concede, although I am not certain, but I think Ms. Calvo said this, this is not a case where illegitimacy standing along or fathering an illegitimate son or daughter standing alone works in exclusion or a bar under the statute.

Nor as to the case where classification is simply a routine distinction or a simplistic distinction, if you will, between man and the one hand and females on the other hand, and finally, I might note this is not a case as plaintiffs parent still argue where the preference provisions were designed to unify all families.

We contend rather that the apparent intent of Congress if you just look at the plain language of the statute was to reunify families to the extent rationally feasible where there have been separations particularly caused by our immigration laws or some of them and especially where those separations were most likely to cause unusual hardship.

In short, we urge that Congress Act did not haphazardly but discreetly and with care.

For example, as this already been brought out, Congress decided that children legitimate or otherwise over 21 or married get no preference at all.

Congress similarly decided that children who have been legitimate after they are 18 years of age get no preference.

Similarly, Congress decided that children adopted after they are 14 years of age get no preference.

They decided that stepchildren made such by a marriage after they are 18 get no preference for admission to these shores.

And of course for this case, as the Court well knows preferences by virtue of the definition of parent and child go only to the mother and her illegitimate child and not to the father.

Now, obviously I assume once we look at it with reasonable care we have to accept that if nothing else is clear a mother has once been re — has once been united with her child.

But, surely, Congress had in mind that fathers necessarily never were united.

And I think this is a legitimate concern particularly where you are dealing with a father who has never chosen to legitimate his child prior to some point where an attempt can be made to petition for entry.

Now, there can be no doubt about it as the plaintiffs argue and as the Court knows what Congress did here was setup a presumption but we urge that it is a presumption based upon a rational empirical judgment or classification.

Furthermore, we urge that Congress quite obviously made this judgment or cut on the basis of difficulties approved for paternity.

And there is no lawyer where the smidgen of experience who doesn’t know what the difficulties are proof of paternity I assume, and of course the likelihood of spurious claims as Ms. Calvo has pointed out.

Now, we do not urge here that just because this is an immigration case or it’s a case arising under the INA that this Court has no right to look at the case, of course it does.

What we do urge is that the plaintiffs have the burden of proof of showing that the classification or cut by Congress in deciding who was to be preferred and who is not to be preferred by defining children and parents that this classification or cut is irrational.

They fail in this burden we submit for several reasons.

First, as it has been pointed out to you early and often this afternoon alone by others in the Illinois case, illegitimacy has never been held squarely by this Court to be what is called a suspect classification, for this reason and because we are concerned with the admission of aliens, a matter obviously or primary jurisdiction of the legislature, strict judicial scrutiny is neither necessary nor appropriate.

As the Court has held recently in domestic cases, drawing of lines is peculiarly a legislative task and it’s a task where perfection is neither possible nor necessary.

Now this is the rule of course that has been annunciated for cases involving citizens who have the full panoply of constitutional protection.

A fortiori, we would urge it is probably the outermost limit that one could reasonably ask for an alien who is seeking preference for admission to our country.

Let me conclude if I may with two points.

As if almost to recognize their difficulties in the main issues, plaintiff seem to resort to the claim that the parent and child definitions herein issue somehow invidiously impact upon the constitutional right of a citizen.

Apparently, that is a right which I guess they call as I read their brief, a right to a unified family.

Harold R. Tyler, Jr.:

Well, I have two arguments to raise against that if the Court please.

First of all, I am not sure that this is a right which has been recognized in the Constitution and perhaps in a more specialized argument.

It seems to me that one reason we urge upon the Court consideration of the fairly recent case Kleindienst versus Mandel which to be sure involved First Amendment rights of a citizen and an alien’s context to and extent simply because Professor Mandel, as you remember, was seeking to be admitted to speak here and to converse with academic people and other who wanted to hear him.

And there as I understand this Court it recognized that if the constitutional rights of citizens were to prevail in cases which involve the decision by the legislature or the executive under delegation by the legislature to exclude or keep out aliens, then the Congressional power to determine such exclusion which we all I think concede exist would really work out to be a note.

And finally, if it may please the Court, I notice that an oral argument as in their brief plaintiffs, once again contend that somehow this case presents no foreign policy issues or choices.

In other words, in 1957 as I understand the argument, Congress didn’t sit down and then someway either in the actual statutory language or in some thing that we all are trained to call legislative history, utterances that this is a great matter of foreign policy or some foreign policy choices.

I thought that argument had been put to rest by Mr. Justice Jackson 24 years ago in Harisiades when he pointed out that when Congress makes these cuts and when Congress determines who is excluded and who is admitted and then the reasons why that that kind of a cut or that kind of classification by necessity goes to the heart of our relation with other governments.

This is a good illustration as Ms. Calvo has properly stated.

One of the problems here is that a good deal depends upon the laws of other jurisdictions who gets admitted under the statute or other sections of the Immigration and National Act.

Well, General Tyler, you say in your brief that the basis for this action in not giving the preference to an illegitimate child of a father — of an unwed father is that the child is among the class or that two — or that the classification — that the father and the child are members of the class among whom its unlikely, there would be any real close identification and it’s on this basis that the legislature at Congress decided which families to try to reunify which family is not.

Now, why — I suppose you would concede that there would be enough of that — could many father child relationships even though the child is illegitimate where there has been a very close — very close.

Harold R. Tyler, Jr.:


Yes, we have.

But why not let them prove it?

Harold R. Tyler, Jr.:

Well, the difficulty is as I said earlier.

Congress apparently was relying on two propositions which even the plaintiffs sociological and statistical studies which they mention in their briefs don’t really dispose of this, I see it.

First of all even the studies of a recent advantage referred to by them and referred to by Judge Weinstein in his dissent show that the overwhelming number of families, the natural relationship as Congress obviously opted for here is with the mother.

But you’re quite right, we can’t claim and perhaps the Cleophus Warner family situation is a good illustration.

There will be because of these classifications or cuts as I somewhat simplistically call the. Situations which target the heartstrings of anyone of any —

Well, suppose the person seeking admission were the person for whom the parent seeks admission for alleges in a piece of paper certain facts that would indicate to anybody, there has been a close relationship down to the years.

And suppose the Government in answering that knew what the facts when said “Yes, we agree.”

Now the law would still exclude the child, the illegitimate child and why not let them prove it.

I mean why not?

Harold R. Tyler, Jr.:

Because Congress —

Why doesn’t the Government want to sort them out one after an individual case rather than it is in a group?

Harold R. Tyler, Jr.:

Well, I would urge very simply that Congress made a choice with full recognition.

There would be special cases where hardship, where you as you say might be easy to prove but I think Congress was thinking at the bulk of the cases.

Well I know it was but why — is it just an administrative cause or difficulty of sorting them out on individual cases?

Harold R. Tyler, Jr.:

Well, as the argument has been made, in the legislature as recent as few months ago where Congress is considering a Bill to achieve the result which plaintiffs urge in which you’re really talking about.

And one of the considerations of course is would it really be that hard.

Harold R. Tyler, Jr.:

But our argument very simply is Congress has the right and the power to decide this and as long as it’s rational, even though you or I or anyone else could think of a better method, really doesn’t solve the problem from a constitutional basis.

You say it’s — what is the rational of it in excluding the — in the particular child’s case if there has been a close association down through the years then Government admits it.

What is the rationality?

Harold R. Tyler, Jr.:

Well, that isn’t the determination as I understand it that Congress made here.

Congress approached this one from another angle.

I know what Congress said, I’m just trying to see what you say is a rational.

Harold R. Tyler, Jr.:

It seems perfectly rational judgment although it’s vague.

Is it rational because it’s too hard to prove it in some other cases and therefore you don’t want to [Voice Overlap].

Harold R. Tyler, Jr.:

In a great number apparently.

Apparently because of the differing laws about legitimate children as oppose to illegitimate children partly because of different laws as to records, partly because of the horrible problems of proving or disapproving paternity and that’s true whether you are once dealing with an alien or a citizen.

I can’t deny that there are cases, of course.

But are argue what basically comes down to this.

First if all its Congress that makes the choice, particularly when we’re dealing with questions of alienage and second of all it isn’t irrational that to make the cut as Congress did it.

And I would have to concede to, you or anybody else that there will be these individual cases.

I have to concede that if you went down carefully on a case by case basis there would be some that with the Government would concede on as you point out.

But then there would be many, many that the Government would not concede but as Congress has tried —

Warren E. Burger:

Mr. Justice Homes said once that every line drawn by legislative action excludes some that could well have been left in and includes some that might well have been left out.

Harold R. Tyler, Jr.:

I think Mr. Justice Blackmun said that even more recently but that’s correct.

And here, we have to accept as Mr. Justice White’s point, there is no doubt that there are individual cases and you know we only heard about one of the plaintiffs case here this afternoon.

This is perhaps the most appealing to many as I agree with Ms. Calvo on that.

The cases of the other plaintiffs are not so appealing but I don’t think Congress was unaware of that problem.

I think what they decided to do was to take the problem on a natural basis as they understood it and as the immigration laws have presumed for many, many years that the rational or the most rational place for a child was with the natural mother and that illegitimate or the fathers of illegitimate parents or illegitimate children of course in some instances are very close to their children but in many more instances are not.

Also, if I may say a father does have a chance to legitimate his child under the laws of most every jurisdiction whether within or without the United States.

Thank you very much.

And that cannot be done in this?

Harold R. Tyler, Jr.:

No, unfortunately in that case —

Unless the mother is remarried?

Harold R. Tyler, Jr.:

Yes and that presents a problem here.

And apparently under the local law of where it is in the Caribbean legitimation could occur only by marriage of the parents.

That’s my understanding.

Harold R. Tyler, Jr.:

That’s my understanding too and I am sure there are other cases going back to Justice White’s point, there is no doubt.

But our argument is that the Congress is entitled to make the cut even where it lives out some and creates individual hardships.

Indeed, if one looks at other sections of the Immigration law as I am sure this Court knows, you will see other forms of classification that surely tag at the heartstrings of any one of us, I assume and if we were doing it or if I were doing it and I admit I probably try to do it differently.

But we urge that that’s Congress’ province as long as they have some reasonable basis so to do.

Thank you very much.

Warren E. Burger:

Do you have anything further, Ms. Calvo?

Janet M. Calvo:

I do.

What the Government attempts to justify here is a determination made on the basis of a bare stereotype which allows total foreclosure of a group of people and in doing so infringes on a fundamental interest in a parent-child relationship.

Now, maybe a reference to a recent case would be helpful.

In Mathews versus Lucas, distinctions were upheld specifically because they did not completely and totally foreclose a group from proving the objective or the necessary of objecting that case which was dependency.

This was compared to the case of Jimenez in which the classifications were very similar, but the group of people in that case were totally precluded from proving dependency which was the object in that case also.

In this case, there is a stereotype that fathers of illegitimate children don’t care a whit about their children.

I believe that we have shown in our briefs that this stereotype just isn’t valid that there are many, many fathers who do care about their children and our particular concern in this case is with our plaintiffs who do care about their children.

Warren E. Burger:

[Voice Overlap] Congress entitled to legislate on the basis of the generality of human experience?

Janet M. Calvo:

I believe that their concept of a generality of human experience results in a stereotype here and I don’t believe that legislating on the basis of a stereotype when it totally forecloses a group of people from proving the object which is in this case of family relationship is constitutionally justified.

I also might point out in that regard that the classifications in this case aren’t only just mother father although we do say that that is discriminatory, you also have another classification like the stepparent classification which is completely and totally irrational.

You can’t presume that a man is going to have close ties with his wife’s child but not with his own and that she is going to have close ties with his child that he never has.

That that is the most irrational example in that situation.

Ms. Calvo, can I interrupt you for just a second?

You suggest that the stereotype here is that there is not a very close relationship between a natural father and his illegitimate child.

And that it’s wrong to legislate on the basis stereotype.

I think you probably would acknowledge however, that there are good many instances in which there is not a close relationship between a natural father and illegitimate child and I just wondering, how does one decide when it becomes a stereotype because there are some case that fits and some who don’t.

Janet M. Calvo:

I think in this case that it’s — there has been sufficient proof brought to show that it isn’t a stereotype —


I understand, this particular case, you are saying this does not fit the stereotype but how do I know that we are dealing with the stereotype at all, that’s what I’m — in other words that the classification itself doesn’t have sufficient generality to be illegitimate to the legislative decision.

Janet M. Calvo:

There are several classifications that are comparable here.

It’s comparing the father with the mother but also comparing the father in a stepparent situation or fathers with fathers.

Well taking the father and mother would you not acknowledge that more frequently there is a close relationship between the mother and the illegitimate child than there is between the father and the illegitimate child.

Janet M. Calvo:

In that situation there may be but that does not justify totally — it does not justify totally foreclosing the father.

Maybe it might justify imposing differing burdens of proof upon him but it doesn’t justify completely and totally wiping him out when his fundamental interest in his parent child relationship is involved.

I am just trying to figure out you acknowledge there are some difference but can’t you say that the one relationship is a stereotype and I have walked and wrestled with this problem when does something become a stereotype, that’s what I don’t quite understand.

Janet M. Calvo:

Well, I think that this Court does has had before in many cases in which fathers have — fathers of illegitimate children having close with their children.

The most recent one is the Jimenez case in which Mr. Jimenez was the sole caring parent of those children.

And I also believe that the statistics that we presented show that there are substantial number of fathers who live with their children, that those fathers who don’t live with their children very often support them and visit them and perform the sociological functions of their father who didn’t take responsibility for the children.

But Calvo, could Congress pass an Act denying a citizenship to any illegitimate alien?

Janet M. Calvo:

Would you repeat that I’m sorry I didn’t hear you.

Could Congress pass an Act denying citizenship to any illegitimate alien — period?

Janet M. Calvo:

That would be a different case from this one because in that case there would only be the rights of aliens involved.

That case would — a determination in this case that this law is unconstitutional would not necessitate in that case a determination, there are different considerations in that situation.

And as to my question is?

Janet M. Calvo:

I think it would — I have not thought about it.

I think that it would have to be resolved on the basis of its own merits and I would have to think about it more before I could give you a specific answer on that.

Ms. Calvo, General Tyler referred to the fact that sometimes in the country of origin a child maybe legitimated.

Does this record show whether that was possible in the French West Indies where Serge was born?

Janet M. Calvo:

Yes, it shows that that the only way that the child could be legitimated in Guadeloupe was by marriage of the parents and this mother did not choose marry Mr. Warner she chose to marry somebody else.

That was the only way?

Janet M. Calvo:

Yes that is the only way.

And that’s fairly common in many places that this concept of legitimation or legitimate.

Some children are legitimate when born even though they are born out of wedlock.

Some children of adulterous relationships are legitimate also.

In other places they’re — children are legitimate only if the parents marry.

For example, in some places a father could have custody of a child and be supporting the child and always live with the child but he is totally incapable of making the child legitimate under the law of the area.

Of course we have cases other than the Warner case here don’t you?

Janet M. Calvo:

Yes, those — we didn’t focus on those only because of the change in the law.

Are they moot now?

Do you feel they are moot?

Janet M. Calvo:

No, we don’t think — they are not moot because the recent amendments contained the Savings Clause which provided that if an application were made before the effective date of the law which is not yet that those people would be entitled to whatever benefits they would have been entitled to wonder the old law.

Well, I wondered because neither of you has mentioned any case other than Mr. Warner, but they are here.

Janet M. Calvo:

That’s right we did not focus on that case because basically the issue that those other cases presented is not really an issue except for those two people at this point.

Well, you probably didn’t focus on it because the Warner case is the best case by far that you have.[Laughter]

Janet M. Calvo:

Well, I think the other cases have —

It’s also all you need, isn’t it?

Janet M. Calvo:

I think that I would — I’d like to —

Warren E. Burger:

When you speak to these stereotypes Ms. Calvo, I am not sure I know what you mean who determines that some situation is a stereotype, who decides that?

Janet M. Calvo:

I think that Your Honor, the Government tries to claim that it’s common experience and I am determining — saying that its not common experience because we have shown that there is enough evidence and the individual fact situations the case show it and also the sociological data and the empirical data show it.

Even the sense as pure data shows it and all the studies that were cited in the brief were all Government studies.

They show it, that fathers do care about their illegitimate children.

Warren E. Burger:

Are judges to assume that — the 535 members of Congress — either are unaware of all those factors or are not capable of finding out about them?

Janet M. Calvo:

I think that what the problem in this case is that it’s a total foreclosure and I think that when there is an individual and or substantial member of individuals who have close ties with their children you can’t completely and totally wipe them out, foreclose them on the basis of some presumptions.

I believe my time is up.

Thank you, Your Honor.

Warren E. Burger:

Thank you counsel.

The case is submitted.