Discrimination Based on Sex and Illegitimacy Is Permissible in the Immigration Area - Fiallo v. Bell
![handle is hein.journals/deplr27 and id is 531 raw text is: DISCRIMINATION BASED ON SEX AND
ILLEGITIMACY IS PERMISSIBLE IN THE
IMMIGRATION AREA-FIALLO V. BELL
In a recent decision, Fiallo v. Bell,' the Supreme Court has
implied that equal protection, guaranteed to every citizen by the
Constitution,2 may be denied to fathers and illegitimate children
who are citizens if the discriminatory classification is made in the con-
text of the immigration laws.3 Noting the broad power Congress has
over aliens4 and the political nature of this area,5 the Court declined
the opportunity to distinguish this case from prior immigration cases
even though this was not the ordinary instance of preferring one type
of alien over another. In Fiallo a relationship with particular citizens
determined the class,6 and the discrimination that occurred was not
between aliens, but between citizens.
Plaintiffs were three sets of unwed biological fathers and their il-
legitimate children7 who challenged the constitutionality of sections
1. 430 U.S. 787 (1977).
2. No State shall . .. .deny to any person within its jurisdiction the equal protection of the
laws. U.S. CONST. amend. XIV, § 1. This same protection is also imposed on the federal
government by the Due Process Clause of the Fifth Amendment. U.S. CONST. amend. V.
Boiling v. Sharpe, 347 U.S. 497, 499 (1954).
3. 430 U.S. at 800.
4. '[O]ver no conceivable subject is the legislative power of Congress more complete than
it is over the admission of aliens.' Id. at 792, quoting Oceanic Navigation Co. v. Strananhan,
214 U.S. 320, 339 (1909).
5. 'ITIhe power over aliens is of a political character and therefore subject only to narrow
judicial review.' Id., quoting Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976). The
political aspect of the immigration area is derived from the concept of sovereign power of the
federal government. Because of its sovereign power, the federal government has an enormous
amount of control in the area of immigration law. However, the courts have found immigration
issues to be justiciable and thus not precluded from judicial review. Immigration disputes are
not primarily a function of the legislature and therefore are not immune from judicial review
under the separation of powers principle. Likewise, such disputes are not immune from review
under the political question doctrine. See generally Scharpf, Judicial Review and the Political
Question: A Functional Analysis, 75 YALE L.J. 517 (1966).
6. 430 U.S. at 806 (Marshall, J., dissenting). See Fiallo v. Levi, 406 F. Supp. 162, 170
(E.D.N.Y. 1975) (Weinstein, J., dissenting).
7. The hopelessness of the plaintiffs' situation is exemplified by the Wilson family. Arthur
Wilson acknowledged Trevor and Earl as his illegitimate sons. He lived with them and sup-
ported them until 1968, at which time they moved to New York City with their mother. From
1968 until 1974, Mr. Wilson maintained his relationship with his sons by visits and correspon-
dence. He also continued to support them financially. After their mother died in 1974, the two
boys asked their father to come to live with them in the United States, but Mr. Wilson was
only able to stay for as long as an emergency visa allowed. Since his children were illegitimate,
Mr. Wilson was unable to settle in this country without a labor certificate. However, if a
mother were in Mr. Wilson's position or if the children were legitimate, the parent would have
been able to enter the country without a labor certificate. 406 F. Supp. at 169-70. Substantial](ViewImageLocal?handle=hein.journals/deplr27&div=29&collection=&method=preview&ext=.png&size=3)
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Discrimination Based on Sex and Illegitimacy Is Permissible in the Immigration Area - Fiallo v. Bell
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