# King v. Smith > Supreme Court of the United States · June 17, 1968 · 392 U.S. 309 URL: https://www.frixlaw.com/law-library/cases/9423793 ## Case - **Full name:** KING, COMMISSIONER, DEPARTMENT OF PENSIONS AND SECURITY, Et Al. v. SMITH Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 17, 1968 - **Citations:** 392 U.S. 309; 88 S. Ct. 2128; 20 L. Ed. 2d 1118; 1968 U.S. LEXIS 1139 - **Precedential status:** Published - **Opinion:** Concurrence by Douglas - **Judges:** Warren, Douglas - **Cited by:** 1,132 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by Vistamar, Inc. v. Vazquez, 337 F. Supp. 375 (1971). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9423793 ## How later opinions describe it (automated extraction) - holding Alabama statute conflicted with Social Security Act "by flatly denying AFDC assistance to otherwise eligible dependent children" ## Opinion text MR. Justice Douglas, concurring. The Court follows the statutory route in reaching the result that I reach on constitutional grounds. It is, of course, traditional that our disposition of cases should, if possible, be on statutory rather than constitutional grounds, unless problems of statutory construction are insurmountable. E. g., Harmon v. Brucker, 355 U. S. 579, 581 . We do have, however, in this case a long-standing administrative construction that approves state AFDC plans containing a man-in-the-house provision. 1 Certainly that early administrative construction, which so far as I can ascertain has been a consistent one, is entitled *335 to great weight. E. g., Power Reactor Co. v. Electricians, 367 U. S. 396, 408 . The Department of Health, Education, and Welfare balked at the Alabama provision only because it reached all nonmarital sexual relations of the mother, not just nonmarital relations on a regular basis in the mother’s house. 2 Since I cannot distinguish between the two categories, I reach the constitutional question. 3 The Alabama regulation describes three situations in which needy children, otherwise eligible for relief, are to be denied financial assistance. In none of these is the child to blame. The disqualification of the family, and hence the needy child, turns upon the “sin” of the mother. 4 First, if a man not married to the mother and not the father of the children lives in her home for purposes of cohabiting with her, the children are. cast into the outer darkness. Second, if a man who is not married to the mother and is not the father of the children visits her home for the *336 purpose of cohabiting with her, the needy children meet the same fate. Third, if a man not married to the mother and not the father of the children cohabits with her outside the home, then the needy children are likewise denied relief. In each of these three situations the needy family is wholly cut off from AFDC assistance without considering whether the mother’s paramour is in fact aiding the family, is financially able to do so, or is legally required to do so. Since there is “sin,” the paramour’s wealth or indigency is irrelevant. In other words, the Alabama regulation is aimed at punishing mothers who have nonmarital sexual relations. The economic need of the children, their age, their other means of support, are all irrelevant. The standard is the so-called immorality of the mother. 5 The other day in a comparable situation we held that the Equal Protection Clause of the Fourteenth Amendment barred discrimination against illegitimate children. We held that they cannot be denied a cause of action because they were conceived in “sin,” that the making of such a disqualification was an invidious discrimination. Levy v. Louisiana, 391 U. S. 68 . I would think precisely the same result should be reached here. I would say that the immorality of the mother has no rational connection with the need of her children under any welfare program. I would affirm this judgment for the reasons more fully elaborated in the opinion of the three-judge District Court. Smith v. King, 277 F. Supp. 31, 38-40 . *337 APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING. States which, according to HEW, currently have “man-in-the-house” policies in their plans for the Federal-State program of Aid to Families with Dependent Children. State and effective date of Status of subsequent revisions sub-approved state policy. mitted for approval and incorporation in the State’s plan. Alabama.Dec. 1962 Revision dated July 1964 and all subsequent revisions including an Administrative Letter of Nov. 13,1967, are being held pending approval. Arizona.' Nov. 1963 Latest revision incorporated May 24, 1967. Arkansas. Aug. 1959 District of Jan. 1955 A revision dated Dec. 27, 1960, was in-Columbia-. corporated into the approved plan on Jan. 13,1961; however, when the District’s plan manual was revised and resubmitted as the State’s plan, in June 1964, the “man-in-the-house” provisions were not accepted and together with subsequent revisions are still pending approval. Florida. July 1959 Georgia. April 1952 Indiana. A “man-in-the-house” provision, not previously in the State’s plan, was submitted in Sept. 1964, to be effective Aug. 1964, and is still being held pending approval. Kentucky.June 1962 Revised state plan pages including these provisions were approved for incorporation in 1964 and 1965. Louisiana.Jan. 1, 1961 Revisions submitted in 1962 and 1964 are still being held pending approval. Michigan. July 1955 Revisions dated Apr. 2, 1963, were approved June 4, 1963. *338 State and effective date of approved state policy. Status of subsequent revisions submitted for approval and incorporation in the State’s plan. Mississippi.Feb. 1954 Revisions submitted in 1966 and subsequently are being held pending approval. Missouri. Oct. 1951 New Hampshire. 1948 New Mexico.... April 1964 A revised state plan page including this provision was approved for incorporation June 16, 1967. North Carolina.. Sept. 1955 Oklahoma. May 1963 A revised state plan page including this provision was approved for incorporation Mar. 1964 and a correction of a clerical error which would have changed the sense of the provision was made and accepted Feb. 1967. South Carolina.. Oct. 1956 Tennessee.June 1955 Three revisions, beginning in 1964, are being held pending approval. Nov. 1959 Texas.. July 1956 A revision dated July 1962 is still being held pending approval. Virginia See the Appendix to this opinion. See discussion by the District Court in this case, Smith v. King, 277 F. Supp. 31, 36-38 . Moreover, the Court’s decision based on statutory construction does not completely resolve the question presented. The District Court, having found a violation of the Fourteenth Amendment, issued an unconditional injunction. Under the Court’s opinion, however, Alabama is free to revive enforcement of its substitute parent regulation at any time it chooses to reject federal funds made available under the Social Security Act. Whether the mother alone could constitutionally be cut off from assistance because of her “sin” (compare Glona v. American Insurance Co., 391 U. S. 73 ) is a question not presented. The aid is to the needy family, and without removing the children from their mother because of her unfitness — action not contemplated here, as far as the record indicates — there is no existing means by which Alabama can assist the children while ensuring that the mother does not benefit. This penalizing the children for the sins of their mother is reminiscent of the archaic corruption of the blood, a form of bill of attainder, which I have discussed recently in a different context. George Campbell Painting Corp. v. Reid, ante, p. 289 (dissenting opinion). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9423793. Public record. Not legal advice.