dissenting:
I dissent. The Supreme Court decided the same issue in Miller v. Albright1 a year ago. Yet today we follow the dissent. And we do so in the face of both pre-Miller2 and post-Miller3 Ninth Circuit decisions going the other way. The majority develops a novel interpretation of Miller. But if it were correct, Miller would have gone the other way.
The statute discriminates among illegitimate children according to the sex of the citizen parent. A citizen mother’s child gets citizenship nearly automatically, but a citizen father’s child must meet additional requirements.4 It does, not matter what sex the child is, just what sex the unmarried citizen parent is.
For many years, lawyers representing children born of such unions, where the father was the non-citizen, have asserted claims that the sex distinction drawn by the statute is unconstitutional under the Equal Protection Clause. The claims were colorable until a solid wall of authority arose rejecting them. We held in Ablang v. Reno5 that the sex distinction was not unconstitutional. Then we held in this case, following Ablang, that it was not.6 We withdrew our disposition because the Supreme Court was about to rule on the question. It rejected the constitutional challenge by a child of a citizen father in Miller v. Albright.7 Then we considered the matter, subsequent to Miller, in Viramontes-Alvarado.8 We held that under Miller, the statute was not unconstitutional. Yet today, we hold that it is. That is a surprising approach to precedent.
In Miller v. Albright, the Supreme Court decision, the litigant was in the same position as Ahumada-Aguilar in all relevant respects (the illegitimate child of a citizen father and non-citizen mother). The litigant made the same Equal Protection argument. And in Miller, the child lost the case.
Figuring out what Miller means is not as complicated as the majority suggests. True, Miller is written in the old English appellate style, with most of the justices writing their own reasons for the decision, instead of a majority agreeing on one rationale. But the facts are simple enough: the child was of a non-citizen mother and citizen father who were not married. And it is simple enough to count to six. Six is the number of justices who agreed that the child loses on the citizenship claim based on the Equal Protection Clause.
In Miller, the Supreme Court granted certiorari to answer the question:
Is the distinction in 8 U.S.C. § 1409 between “illegitimate” children of United States citizen mothers and “illegiti*1128mate” citizen fathers a violation of the Fifth Amendment to the United States Constitution?9
The Supreme Court’s answer was no. We are therefore obligated to give the same answer.
Were the count to six disputable, the dispute would be ended by our own post-Miller reading of Miller. Addressing the same Equal Protection Clause argument, we held in Viramontes-Alvarado10 that, “this argument has been rejected by the Supreme Court in Miller v. Albright”11 I do not think there is any room whatsoever, regardless of how impressed we may be with the force of the Equal Protection claim, for us to accept it. We are bound by precedent of our court, the Supreme Court, and our court construing the Supreme Court decision, to reject it.
In Miller, Justice Stevens, joined by Chief Justice Rehnquist, said the distinction drawn by the statute between citizen fathers and citizen mothers was neither arbitrary nor invidious, and did not violate the Equal Protection Clause. Justice O’Connor, joined by Justice Kennedy, concurred in the judgment, on the ground that because the sex difference was in treatment of fathers and mothers, not male and female children, the child did not have standing to raise the father’s Equal Protection claim. Justice Scalia, joined by Justice Thomas, concurring in the judgment, said that the Court could not reach the Equal Protection issue, because it lacked power to grant citizenship to an alien.in any event, and could do nothing but strike the whole law and deny relief if it found the distinction to be unconstitutional. Justices Ginsburg, Souter and Breyer dissented. That amounts to six justices agreeing that the child raising the challenge must lose. It leaves no room for us to hold, as the majority does today, that the child wins.
The majority’s theory today is that because Ahumada-Aguilar’s father is dead, Ahumada-Aguilar has standing to assert his father’s claim that he is being discriminated against because of his sex. Even if that distinction made a difference it would be weak in this case. When Ahumada-Aguilar’s deportation hearing was held, his father was still alive. So even the thread today’s majority tugs, that Justice O’Con-nor said in Miller that the child “has not demonstrated a substantial hindrance to her father’s ability to assert his own rights,”12 does not distinguish the cases. And it is only a thread. The Supreme Court has not held that if the parent is dead, then the child can assert the parent’s right not to be discriminated against on account of sex.
I doubt that there can be standing for purposes of Article III where a child purports to litigate the father’s sex discrimination claim, in the absence of unusual circumstances showing that the father did all he could to assert it for himself. The father’s interest may be adverse to the child’s, so the child is asserting only his own interest and not his father’s. Four justices in the majority thought the child had to lose whether she had standing or not. Justice O’Connor and Justice Kennedy, the only two justices in the majority even to reach standing, concluded that the child did not have standing. Because the distinction by sex was drawn by Congress between the parents, not between male and female children, the children cannot establish a case or controversy, and a court lacks jurisdiction under Article III, section 1 of the Constitution, to hold in the child’s case that the statute discriminated unconstitutionally against one of the parents by sex.
The law established by Miller is that a child of an alien mother and citizen father is not entitled to constitutional relief from *1129the statutory requirements on account of the sex difference in the way the statute treats such a child as compared with the child of an alien father and citizen mother. Whether because the sex distinction is not arbitrary or invidious, as two justices think, or because the child lacks standing to challenge any invidiousness or arbitrariness, as two other justices think, or because such a child could not obtain a judicial remedy even if the child had standing and the statute denied Equal Protection, as two other justices think, the consequence is the same: the Supreme Court has held that the child obtains no remedy. So must we, under the one Supreme Court clause.13
Wauchope,14 even if it had any force sufficient to overcome a Supreme Court decision and a subsequent Ninth Circuit decision interpreting the Supreme Court decision (of course it does not, and must be treated as overruled to the extent that it may be inconsistent with Miller), would be distinguishable. It says that children can assert their dead mothers’ constitutional claims where “their interests coincide with those of their mothers and are equally as intense.”15 How do we know that Ahuma-da-Aguilar’s father had the same interest as Ahumada-Aguilar, held with equal intensity, that Ahumada-Aguilar should be a United States citizen? The only fact in the record bearing on the father’s interest was that he sent the mother packing. His financial interest was better served by not supporting his son than by supporting him. There is no particular reason to think that, were the father alive now (he was when Ahumada-Aguilar’s deportation hearing was held, and did nothing about it) he would say, “I intensely want my long lost son to be a United States citizen.”
The majority holds that the statute Congress passed is unconstitutional because it falls into the class of laws that “rely on outdated stereotypes.” According to the majority, the statute “relies on the generalization that mothers are more likely to have close ties to and care for their children than are fathers.” Though the same Zeitgeist floats in my air as in the majority’s, I cannot find the “stereotypes” clause in my copy of the Constitution. Probably some members of Congress had the thoughts today’s majority attributes to them, but they still had constitutional authority to make laws. Probably some thought that it is a lot easier to be sure of maternity than paternity. Though the uncertainty can now be eliminated by DNA tests, the expense and infrequency of testing still provides a rational basis for a distinction. And probably some did not much care about the stereotype the majority attributes to them. This statute was passed during the Korean War. Members of Congress knew that American soldiers who went abroad to fight wars, and caused children to be conceived while they were abroad, were overwhelmingly male, because only males were drafted, so that the number of children born illegitimately of male citizens might be large enough to affect immigration policy, while the number of illegitimate children of female citizens would be negligible. They may also have sought to minimize the administrative burden on the Department of Defense for paternity and citizenship claims respectively by the women the soldiers left behind and their children. This may not be pretty, but it is a rational basis for the sex distinction. Congress had plenary power over immigration empowering it to make such distinctions.
There is no particular barrier to the father’s Equal Protection claim being raised, if some father wants to raise it. Some noncustodial fathers of children born out of wedlock do not care to pay child support if it can be avoided. A father might want his illegitimate child to have United States citizenship, yet not want to pay child support as required by the stat*1130ute at issue. Such a father could challenge the statute. We lack the power under the Constitution to reach out to hold an act of Congress unconstitutional when the person challenging it is not in the class of persons against whom the arguably unconstitutional distinction is made.
As two justices said in Miller, Congress had a rational purpose for the law. And as two more said, it would not matter if they did not have a rational purpose, because courts cannot confer citizenship, whether the statute not conferring it is constitutional or not. And as two more said, it would not matter if Congress lacked a rational purpose and courts could confer citizenship, because the child lacks standing to assert that the father was discriminated against by sex. And as we held in Vira-montes-Alvarado, the Supreme Court has held in Miller that the child loses this claim.
. Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998).
. See Ablang v. Reno, 52 F.3d 801 (9th Cir.1995), cert. denied 516 U.S. 1043, 116 S.Ct. 701, 133 L.Ed.2d 658 (1996).
. See United States v. Viramontes-Alvarado, 149 F.3d 912 (9th Cir.1998), cert. denied - U.S. -, 119 S.Ct. 434, 142 L.Ed.2d 354 (1998).
. See 8 U.S.C. § 1409.
. Ablang, 52 F.3d 801 (9th Cir.1995).
. See United States v. Ahumada-Aguilar, 124 F.3d 213 (9th Cir.1997), unpublished disposition, withdrawn.
. Miller, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998).
. Viramontes-Alvarado, 149 F.3d 912 (9th Cir.1998).
. Miller, 118 S.Ct. at 1434 (internal quotations omitted).
. Viramontes-Alvarado, 149 F.3d 912 (9th Cir.1998).
. Id. at 916, n. 2.
. Miller, 118 S.Ct. at 1443.
. U.S. Const. Art. Ill, § 1.
. Wauchope v. United States Dept. of State, 985 F.2d 1407 (9th Cir.1993).
. Wauchope, 985 F.2d at 1411.