Wengler v. Druggists Mutual Insurance Co.

SEILER, Judge,

dissenting.

I respectfully dissent. I would hold the statute unconstitutional as violative of the equal protection clause of both the Missouri and federal constitutions and would require death benefits be awarded surviving husbands on the same basis as they are presently awarded widows. I think the matter is well put in Passante v. Walden Printing Co., 53 A.D.2d 8, 11-12 , 385 N.Y.S.2d 178, 180-81 (1976), as follows:

“[I]t is clear that the statute before us discriminates against the married woman whose employment contributes to the economic well-being of her family; whereas the working man, as a benefit of employment, is given the security of knowing that in the event of his work-related death; his widow, and therefore in most cases his family, will not suffer the loss of his entire income, the working woman is given no such guarantee .

“. . The disadvantage is most apparent in the present case, where Mr. and Mrs. Passante each earned approximately $200 per week. Had Mr. Passante died in a compensable circumstance, his family, through his widow, would have received, in addition to benefits payable on behalf of minor children, at least $156 per month . . . But because Mrs. Passante was the unfortunate victim, the family’s resources will be less by the aforementioned amount, simply because the statute arbitrarily classifies the husband as breadwinner and consequently categorizes the wife’s work as unimportant.”

The point is made in Arp v. Workers’ Compensation Appeals Board, 19 Cal.3d 395 , 138 Cal.Rptr., 293 , 563 P.2d 849, 855 (1977) in these words: “. . .On balance, the employed woman is short-changed. While her male colleagues are assured- that in the event of a fatal industrial accident their widows — even fully self-supporting widows — will receive a financial cushion, the employed woman can provide her husband with no such security. He will receive benefits only [to] the extent that he can prove dependency, and if he is himself employed he may be eligible for no supplemental death benefit whatever.”

The majority distinguishes Frontiero v. Richardson, 411 U.S. 677 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973); Arp v. Workers’ Compensation Appeals Board, 19 Cal.3d 395 , 138 Cal.Rptr. 293 , 563 P.2d 849 , and Passante v. Walden Printing Co., 53 A.D.2d 8 , 385 N.Y.S.2d 178 , on the basis that they adopt a strict scrutiny standard. Instead, the majority applies a “substantial relationship” test. It then goes on to hold that since more women than men are dependent on their spouses for support, the legislature was justified in requiring widowers of working women to prove support, but not widows of working men.

*171 There are several flaws in this argument. First, while in Frontiero only four members of the court concurred that sex is a suspect classification, four other members of the court concluded that the discrimination presented in that case could not pass even a more lax standard. Frontiero, 411 U.S. at 691-92 , 93 S.Ct. 1764 . Thus, in Frontiero eight members of the court concluded that the statutory scheme was in violation of the equal protection clause because of the discrimination against women it permitted. As the description of Frontiero contained in the majority opinion makes clear, the discrimination present in that case and this one are remarkably similar. There, as here, the wife was entitled to benefits automatically while the husband would be entitled only upon proof of dependency.

Weinberger v. Wiesenfeld, 420 U.S. 636 , 95 S.Ct. 1225 , 43 L.Ed.2d 514 (1975) and Califano v. Goldfarb, 430 U.S. 199 , 97 S.Ct. 1021 , 51 L.Ed.2d 270 (1977), are distinguished on the basis that they dealt with the social security act and thus with a form of social insurance. However, in Weinber-ger the court stated:

“The gender-based distinction made by § 402(g) is indistinguishable from that invalidated in Frontiero v. Richardson . . . Schiesinger v. Ballard, 419 U.S. 498 , 95 S.Ct. 572 , 42 L.Ed.2d 60 (1975), explained: ‘In . Frontiero the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution . . . . [T]he assumption . . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not.’ Id., at 507, 95 S.Ct. at 577. A virtually identical ‘archaic and overbroad’ generalization, id., at 508, 95 S.Ct. at 577, ‘not tolerated under the Constitution’ underlies the distinction drawn by § 402(g), namely, that male workers’ earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families’ support.” 420 U.S. at 642-43 , 95 S.Ct. at 1230-1231.

The majority states at the conclusion of its opinion:

“It seems rather obvious therefore that the purpose of the conclusive presumption of dependency was to satisfy a perceived need widows generally had, which need was not common to men whose wives might be killed while working.

“The widower is not deprived of death benefits upon the compensable death of his wife but is entitled to the same upon proof of dependency. In our opinion, the substantive difference in the economic standing of working men and women justifies the advantage that sec. 287.-240(4)(a) administratively gives to a widow.” (emphasis added).

The quoted portions of Weinberger make clear that the Supreme Court has rejected just such reasoning as that advanced by the majority in support of the result reached. Regardless whether the standard to be applied is one of strict scrutiny or substantial relationship, administrative convenience and overbroad characterizations of the male as the primary breadwinner cannot serve to counterbalance or justify “a gender-based distinction which diminishes the protection afforded to women who do work.” Weinberger at 648 , 95 S.Ct. at 1233.