Wengler v. Druggists Mutual Insurance Co.

DONNELLY, Judge,

concurring in result.

Judges of state courts are bound to follow the “supreme Law of the Land” (Art. VI, Constitution of the United States). The “supreme Law of the Land” is only what the Supreme Court of the United States says it is. Cooper v. Aaron, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 (1958); Oregon v. Hass, 420 U.S. 714, 719 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975); North Carolina v. Butler, - U.S.-, 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979).

The issue on this appeal is, in part, whether § 287.240, RSMo Supp.1976, offends the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The essential problem, as I see it, is that no identifiable “supreme Law of the Land” exists by which we may adjudicate a claim of alleged gender-based discrimination. Cf. Muller v. Oregon, 208 U.S. 412 , 28 S.Ct. 324 , 52 L.Ed. 551 (1908); West Coast Hotel Co. v. Parrish, 300 U.S. 379 , 57 S.Ct. 578 , 81 L.Ed. 703 (1937); Goesaert v. Cleary, 335 U.S. 464 , 69 *169 S.Ct. 198 , 93 L.Ed. 163 (1948); Reed v. Reed, 404 U.S. 71 , 92 S.Ct. 251 , 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973); Kahn v. Shevin, 416 U.S. 351 , 94 S.Ct. 1734 , 40 L.Ed.2d 189 (1974); Schlesinger v. Ballard, 419 U.S. 498 , 95 S.Ct. 572 , 42 L.Ed.2d 610 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 , 95 S.Ct. 1225 , 43 L.Ed.2d 514 (1975); Stanton v. Stanton, 421 U.S. 7 , 95 S.Ct. 1373 , 43 L.Ed.2d 688 (1975); Craig v. Boren, 429 U.S. 190 , 97 S.Ct. 451 , 50 L.Ed.2d 397 (1976); Califano v. Goldfarb, 430 U.S. 199 , 97 S.Ct. 1021 , 51 L.Ed.2d 270 (1977); Califano v. Webster, 430 U.S. 313 , 97 S.Ct. 1192 , 51 L.Ed.2d 360 (1977).

In this circumstance, I would turn to the issue whether § 287.240, RSMo Supp.1976, offends Art. I, § 2 of the Missouri Constitution.

In Poe v. Ullman, 367 U.S. 497, 542, 543 , 81 S.Ct. 1752 , 6 L.Ed.2d 989 (1961), Mr. Justice Harlan, in dissent, speaking of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, expressed the view that “it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.” He then declared that “the liberty guaranteed by the Due Process Clause * * * is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints * * *, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. * *

In Missouri, “all political power is vested in and derived from the people” (Mo.Const. Art. I, § 1), and the power granted by the Constitution “is intended to promote the general welfare of the people” (Mo.Const. Art. I, § 2); but “all persons * * * are entitled to equal rights and opportunity under the law” (Mo.Const. Art. I, § 2). These provisions represent a balance which Missouri has struck between “the demands of organized society” and the entitlement of individuals to “equal rights and opportunity under the law.” In simplistic terms, it is the primary function of the legislative department to address “the demands of organized society,” and the primary function of the judicial department to assure individuals “equal rights and opportunity under the law * * Mr. Justice Harlan’s view would involve “particularly careful scrutiny of the state needs asserted to justify” a denial of “equal rights and opportunity under the law. * * Mr. Justice Harlan’s approach is not permissible in Missouri. The judicial department may not exercise any power properly belonging to the legislative department. (Mo.Const. Art. II, § 1).

The determination of a question whether “the demands of organized society,” as reflected by a particular statute, are sufficient to justify an abridgment of a right reserved to the people is an appropriate exercise of a governmental function by the legislative department and is entitled to considerable deference.

The determination of the extent to which a right reserved to the people may be abridged by a statute, if at all, is an exercise of the judicial function, and should be conclusive on the question of the constitutionality of that statute. The judicial department is the ultimate protector of the rights of individuals.

The problem of determining the extent to which a right reserved to the people may be abridged by a statute, if at all, is a difficult one. The “demands of organized society” are probably not relevant to the judicial inquiry. The protection of individual rights from abridgments by statute does not lend itself easily to the construction and application of a formula. Hopefully, the Bench and Bar will address the problem. Historically, in Missouri, gender-based discrimina-tions are held to be matters for legislative determination that cannot be considered by the courts. Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo. banc 1959). In my view, the law should be changed so that, as a minimum, if a statute, which purports to *170 satisfy the demands of organized society, invidiously discriminates between male and female persons, those demands and perceived needs should yield and the statute should be declared unconstitutional. King v. Swenson, 423 S.W.2d 699, 705 (Mo. banc 1968); Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 489 , 75 S.Ct. 461 , 99 L.Ed. 563 (1955).

It is worth noting that “exclusive appellate jurisdiction in all cases involving the validity of * * * a statute or provision of the Constitution of this State” is in this Court (Mo.Const. Art. V, § 3). Until a formula evolves, the people of Missouri have a right to expect that the judges of this Court would not “draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function.” Rochin v. California, 342 U.S. 165, 170 , 72 S.Ct. 205, 208-209 , 96 L.Ed. 183 (1952); see Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921).

In final analysis, “[e]ach new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed.” Poe v. Ullman, supra, 367 U.S. at 544 , 81 S.Ct. at 1777 (Harlan, J., dissenting).

I concur only in the result.