brief for appellee — Califano v. Goldfarb

Supreme Court brief1977

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RECORD PRESS, INC., 95 MORTON ST., NEW YORK, N. Y. 10014—{212) 243-5775

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—_—————

‘

IN THE

Supreme Court of the United States

Ocroser Term, 1975

No. 75-699

—_

F. Davin Matuews, Secretary of

Health, Education, and Welfare,

Appellant,

—_—

Leon GOLDFARB,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR APPELLEE

RutH Baper GinsBurG

Mervin L. WuLrF

KATHLEEN WUdLLERT PERATIS

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Napinze Tavs

Women’s Rights Litigation

Clinic

175 University Avenue

Newark, New Jersey 07102

Attorneys for Appellee

eer

INDEX

PAGE

i ceeetechtaeesncnceasccnommenscansemmesees 1

SES EAL 1

i cerdinsceseenpennsenasensscescseestn ithe 2

Ee 3

I nsemenenaminennes 3

EE 6

ARGUMENT:

I. The gender-based criterion established by 42

U.S.C. §§402(b), (¢)(1)(C), (e), (£)(1)(D)

discriminates invidiously against gainfully-

employed women insured under social security

as well as against their surviving spouses ........ 12

A. The statute discriminates against gainfully-

employed women insured under social se-

ee 12

B. The statute discriminates against surviving

spouses of female workers insured under

EE 18

Il. Employment of a gender-based criterion as a

means to determine benefits due on the earn-

ings record of an individual insured under

social security constitutes a denial of the equal

protection of the laws guaranteed by the due

process clause of the fifth amendment ................ 19

lL.

A. The 42 U.S.C. §§402(b), (c)(1)(C), (e),

(f)(1)(D) gender line favors marital units

with a male insured individual over units

with a female insured individual; this favor-

itism does not fairly and substantially ad-

vance legitimate governmental ends ..............

B. The legislative presumption underlying the

§402 differential, that women depend on

men but not vice versa, is today further

than ever from the truth and in fact never

SS CURRED secession

C. Exclusion of the spouse of a working woman

from social insurance benefits accorded the

spouse of a working man does not operate

to remedy the effects of past economic dis-

crimination against women ....................-..--+--

D. Administrative convenience does not justify

gross categorization by gender ......................

E. Budgetary considerations do not justify

resort to an otherwise invidious gender

TID scssinscssanensinssentniibipinaniiauaiaaidemaciaiaptaien

Employment-related benefits distributed by

government must be allocated with an even

hand and without resort to classification based

Fl |

A. Decisions of this Court and lower federal

courts establish that classification based on

gender per se is impermissible in employ-

ment-related regulation ..................:csssssseeeesees

PAGE

B. Federal laws governing private and public

sector employment require employers to ac-

cord spouses of female employees all fringe

benefits accorded spouses of male employ-

ees; these laws reflect the overriding con-

cern of Congress to eliminate gender-based

discrimination in the economic sphere ........ 51

IV. Consistent with the dominant congressional

purpose, to provide old-age and survivors in-

surance in a manner that respects the dignity

of the aged, the Court should declare 42 U.S.C.

§§402(¢c)(1)(C) and (f)(1)(D)_ unconstitu-

tional insofar as these provisions deny to the

spouse of a female wage earner benefits ac-

corded the spouse of a male wage earner .......... 60

ITED | cncssicewincisicinsenisneneatsaibiaseninsiipnaiiiaiiieasiidiiiaiiniadaaiiiiiaiae 70

fn Ee TN 71

TABLE OF AUTHORITIES

Cases:

Abbott v. Weinberger, —— F. Supp. —— (N.D. Ohio,

February 12, 1976), jurisdictional statement filed sub

nom. Mathews v. Abbott, No. 75-1643 .................... 4, 16, 60

Andrews v. Drew Municipal Separate School District,

507 F.2d 611 (5th Cir.), cert. dismissed as improvt-

dently granted, 44 U.S.L.W. 4627 (May 3, 1976) ........ 49

Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th

Cir.), cert. denied, 404 U.S. 939 (1971)... 53

PAGE

Belle Terre v. Boraas, 416 U.S. 1 (1974) ..........--.-eeeeeee 35

Bowen v. Hackett, 361 F. Supp. 854 (D.R.1. 1973) ....16, 43,

49, 50, 64

Brennan v. Corning Glass Works, 417 U.S. 188 (1974) 66

Purrow v. Kapfhammer, 284 Ky. 753, 145 S.W.2d 1067

TIED sc:cicssiscninboneesincscenmnesieiinlucseseiiiiieaiidseaibipaabetsalaiiiighaniiens 64

Chastang v. Flynn and Emrich Co., 365 F. Sapp. 957

(D. Md. 1973) ........ sciahiodasebihaniehatensbesiauineanniaaieaaieieiiaieiaiaiiaien 52

Chatman v. Barnes, 357 F. Supp. 9 (N.D. Okla. 1973) ..43, 64

Clark v. Celebrezze, 230 F. Supp. 798 (D. Mass. 1974),

aff'd, 344 F.2d 479 (1st Cir. 1965) ................ 6, 27, 30, 34, 40

Coffin v. Secretary of Health, Education and Welfare,

400 F. Supp. 953 (D.D.C. 1975), appeal docketed sub

nom. Mathews v. Coffin, No. 75-791 ................ 3, 4, 16, 40, 60

Colburn v. Colburn, 20 Md. App. 346, 316 A.2d 283

CORE, Ch Bare, TID ccccncenctsnseccnsnsecensenensennssesscesssenene 68

de Castro v. Weinberger, 403 F. Supp. 23 (N.D. IIL.

TTD sassinbeccicieseitesinsntiintteneeinehaegesiantaelisimnisibaneiamasneneninnninienntial 43, 64

Demiragh v. DeVos, 476 F.2d 403 (2d Cir. 1973) ....43, 64

Diaz vy. Pan American World Airways, 442 F.2d 385

(5th Cir.), cert. denied, 404 U.S. 950 (1971) ................ 53

EEOC Decisions, Case No. CL 7-6-694, CCH Emp.

Practices Guide {6009 (May 19, 1969) ...........-.-.-....+-- 52

EEOC Decisions, Case No. YNY9-034, CCH Emp.

Practices Guide 96050 (June 16, 1969) .............-.....--+ 52

EEOC Decision No. 70-75, CCH Emp. Practices Guide

RN GS —O—=—E—— 53

PAGE

EEOC Decision No. 70-510, CCH Emp. Practices Guide

Pe CTY GO, RTD ancneecrcenescceeccseeecoceesncerncesvenensens 52

EEOC Decision No. 70-513, CCH Emp. Practices Guide

SERCO R een 52

EEOC Decision No. 70-660, CCH Emp. Practices Guide

EERE SC ee tone Pe 52

EEOC Decision No. 71-562, CCH Emp. Practices Guide

16184 (December 4, 1970) 2.20... cece ccceeceecceeceeeeeeee 52

EEOC Decision No. 71-1100, CCH Emp. Practices

Guide {6197 (December 31, 1970) 20... 52

EEOC Decision No. 72-0702, CCH Emp. Practices

Guide {6320 (December 27, 1971) .o....c.ccccccccceeeeee 52

EEOC Decision No. 72-1919, CCH Emp. Practices

Guide 16370 (Jume 6, 1972) 2.2... one ceccccecececcececenceees 52

Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973) .... 49

Fitzpatrick v. Bitzer, 390 F. Supp. 278 (D. Conn. 1974),

appeal on another point, 519 F.2d 559 (2d Cir.),

cert. granted, 44 U.S.L.W. 3358 (1975) 0... 52

Frontiero v. Richardson, 411 U.S. 677 (1978) ........ passim

Geduldig v. Aiello, 417 U.S. 484 (1974) 19, 35

Graham v. Richardson, 403 U.S. 365 (1971) ........ 41, 42, 63

Green v. Waterford Board of Education, 473 F.2d 629

I a al 49

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 000... 52

Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.), cert.

dented, 393 U.S. 982 (1968) ...................ccceccccccceceneseeeee 36, 37

Henslee v. Union Planters Nat’l Bank & Trust Co., 335

Ss Se CII eictiienta ethic teak ae 49

Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239

DRIED cette linia aac ca ra 62

PAGE

Jablon v. Secretary of Health, Education and Welfare,

339 F. Supp. 118 (D. Md. 1975), appeal docketed sub

nom. Mathews v. Jablon, No. 75-7339 ............ 3, 4, 16, 18, 35,

40, 60, 65, 66

Kahn v. Shevin, 416 U.S. 351 (1974) -....---.-eccceeeeeeeeeeesees 34

Kohr v. Weinberger, 378 F. Supp. 1299 (E.D. Pa. 1974),

judgment vacated, 422 U.S. 1050 (1975) .......-...-.----+ 36, 37

Labine v. Vincent, 401 U.S. 532 (1971) -.....--------eceeseeeeeees 35

Legatos, Estate of, 1 Cal. App. 3d 657, 81 Cal. Rptr.

en 64

Lewis v. Cohen, —— F. Supp. —— (E.D. Pa. March

5, 1976) [44 U.S.L.W. 2457) ........cceccececececeseeesssnennsenees 36

Mathews v. Lucas, —— U.S. —— (June 29, 1976) ....19, 21,

38, 48

Memorial Hospital v. Maricopa County, 415 U.S. 250

|, | SS 41, 62

Mengelkoch v. Industrial Welfare Comm’n, 442 F.2d

1119 (9th Cir. 1971) ......... ss oeieehiesetdemedeensddenteasiianannesiiatitabts 50

Miller v. Laird, 349 F. Supp. 1034 (D.D.C. 1972) ...... 43, 64

Moritz v. Commissioner of Internal Revenue, 469 F.2d

466 (10th Cir. 1972), cert. denied, 412 U.S. 906 (1973) 63

New Jersey Welfare Rights Organization v. Cahill,

411 U.S. 619 (1973), summarily reversing 349 F.

Supp. 491 (D.N.J. 1972) ............0-s-ceseeecerssssosesoseeres 41, 42, 63

Norton v. Weinberger, 390 F. Supp. 1084 (D. Md. 1975),

aff'd sub nom. Norton v. Mathews, —— U.S. ——

CS |) = 35

Page v. Welfare Comm’n, Connecticut Law Journal,

February 24, 1976, p. 3 (Conn. Sup. Ct.), excerpted

OO I, 49, 64

PAGE

Paterson Tavern ¢ Grill Owners Ass’n, Inc. v. Borough

of Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970) .... 50

Polelle v. Secretary of Health, Education and Welfare,

386 F. Supp. 443 (E.D. Tl. 1974) occ ccccecececceccecceeeneeee 36

Quong Ham Wah Co. v. Industrial Accident Comm’n,

184 Cal. 26, 192 P. 1021 (1920), appeal dismissed,

UD Ws I CED ccsensesivusitiiicencnicteitsinesninniitata teeta 64

Reed v. Reed, 404 U.S. 71 (1971) cecceccccccccccceecoeeee 16, 17, 19, 20,

21, 22, 24

Rosen v. Public Service Elec. € Gas Co., 477 F.2d 90

Se I iaiccaientaneiace Reo 52

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th

Ny NE Siete i ees ee eee ee 53

F. S. Royster Guano Co. v. Virginia, 258 U.S. 412

eee ieeahihanieetlaeiiadaiitilimtiaas 19

(| = . , cubvaniininiepiaiaintiaits 50

Schlesinger v. Ballard, 419 U.S. 498 (1975) ........ 34, 35, 41

Schmoll v. Creecy, 54 N.J. 194, 254 A.2d 525 (1969) .. 62

Shapiro v. Thompson, 394 U.S. 618 (1969) ............ 41, 42, 63

Shpritzer v. Lang, 17 A.D.2d 285, 234 N.Y.S.2d 285

(1st Dep’t 1962), aff’d, 13 N.Y.2d 744, 241 N.Y.S.2d

See IIIIEET senivieietnanicnciaiieibinhainiaditsidinaiieeitiaeatectaeiiatle satanic 50

Silbowite v. Secretary of Health, Education and Wel-

fare, 397 F. Supp. 862 (S.D. Fla. 1975), appeal

docketed sub nom. Mathews v. Silbowitz, No. 75-

SEE: ceniatrhcesiniehlieisahinasbhaibabniapesabeniintsmaiatatataiactas Soest 3, 4, 15, 60

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

(1942) .... - seicehieslhpbbiataiats 62

Sosna v. Iowa, 419 U.S. 393 (1975) occ ccceccceceeeeee ehaslaebibaels 41

PAGE

Stanton v. Stanton, 421 U.S. 7 (1975) ................ 17, 20, 21, 24,

35, 40, 48, 60

Stevenson v. Castles, Civ. No. 7452 (D.C.Z. November

15, 1974) ........ issih sition 49

Taylor v. Louisiana, 419 U.S. 522 (1975) ............ 20, 24, 30,

35, 38, 48

United States Dep’t of Agriculture v. Moreno, 413 U.S.

ff ila leaieaniehsiiaidieiicasamanianndal 41, 42, 62, 63

Vaccarella v. Fusari, 365 F. Supp. 1164 (D. Conn.

STII; chennai aaa ial daitiie rae 43, 64

Vlandts v. Kline, 412 U.S. 441 (1978) 220222... eee eee eee 43

Vuyanich v. Republic Nat'l Bank, 409 F. Supp. 1083

RRR. Tits UTED sich iii 24

Weinberger v. Salfi, 422 U.S. 749 (1975) 0... 19

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........ passium

Welsh v. United States, 398 U.S. 333 (1970) ................ 62

White v. Fleming, 522 F.2d 730 (7th Cir. 1975) ........... 49

Wilson v. Hacker, 101 N.Y.S.2d 461 (Sup. Ct. 1950) .. 50

Wood v. Mills, 528 F.2d 321 (4th Cir. 1975) ................ 21, 49

Yale d Towne Mfg. Co. v. Travis, 262 F. 576 (S.D.N.Y.

or ge BE een 64

Constitutional Provisions:

United States Constitution

I I ii cceticeesndinesiiiniinasiie 2, 3, 19, 22, 61, 63

Fourteenth Amendment ..................ccccccccccsccscesesees 3, 22, 50

PAGE

Federal Statutes, Proposed Legislation,

Executive Orders:

Act of Aug. 14, 1935, ch. 531, $202, 49 Stat. 623 ........... 25

Act of Aug. 10, 1939, ch. 666, §§201, 202, 53 Stat. 1362-

A secant ail laa hiatal 25, 28

Act of Aug. 28, 1950, ch. 809, §101(a), 64 Stat. 483-

aa ae ae a a a 26, 28

Act of July 30, 1965, P.L. 89-97, §308, 79 Stat. 375 .... 26

Act of Jan. 2, 1968, P.L. 90-248, 4151, 81 Stat. 860... 28

Act of Oct. 30, 1972, §104, P.L. 92-603, 86 Stat. 1335,

a oa see 26, 37

Civil Rights Act of 1964, Title VII, 42 U.S.C. §§2000e

et seq. (Supp. IV, 1974), amending 42 U.S.C. §§2000e

OE I Ge dekicdeceacitctcdictieiaieininicenenciomiginninl 49, 50, 51, 52

Education Amendments of 1972, Title IX, 20 U.S.C.

$§1681 et seq. (Supp. IV, 1974) .22.........eeeeceeee 01, 57

Equal Credit Opportunity Act of 1975, P.L. 93-495,

88 Stat. 1521, as amended by P.L. 94-239, 94th Congzg.,

8 ee 29

Equal Pay Act of 1963, 29 U.S.C. $206(d) (1970) ..51, 53, 66

Executive Order 11246, as amended by Executive Order

11375, 3 C.F.R. 169 (1974), 42 U.S.C. §$2000e note .. 51

5 U.S.C. §2108 (Supp. IV, 1974) .eccsssssscseseesee 54

5 U.S.C. $5924 (Supp. IV, 1974) haa 55

5 U.S.C. §7151 (1970) Ruse Te 54

5 U.S.C. §7152 (Supp. IV, 1974) ..ccccccsssssssse 36, 51, 53, 54, 55

5 U.S.C. $7154 (1970) cecccccccccccccccccccccccecceccessesssssssssesssssetvenseee 54

5 U.S.C. §§8101(6) and 8101(11) (Supp. IV, 1974) ........ 55

5 U.S.C. §8341 (Supp. IV, 1974) .ecccsccsscssssssssssessesseeeseeeeee 55

EEL 54

me Rn 55

PAGE

38 U.S.C. §102(b) (Supp. IV, 1974) ...-........-..c--cecccseseores 54

38 U.S.C. $1682 (1970) ... See RAT eh Ae eS 54

I ...14, 60

42 U.S.C. §405(g) (1970) .......... ; . 4

42 U.S.C. $414(a)(1) (Supp. IV, 1974) .....2......eeeceeseees 66

gE RF, eee 39

42 U.S.C. $1303 (1970) ............... iki itamaitnialal 66

42 U.S.C. §§402(b), (¢)(1)(C), (e), (£)(1)(D) -...-... passim

H.R. 11555, 94th Cong., 2d Sess. (1976) .............--0ccsesee-+ 67

S. 1729, 94th Cong., Ist Sess. (1975) -...........ccccee-ccerereeseeees 67

Administrative Regulations, Opinions:

53 Comp. Gen. 148 (August 31, 1973) ...........-..ccce-eseeeeees 55, 61

Dep’t of Health, Education, and Welfare, Final Title

IX Regulations Implementing Education Amend-

ments of 1972 Prohibiting Sex Discrimination in

Education, 45 C.F.R. $86.56-58 ........ 57, 58

Dep’t of Health, Education, and Welfare, Higher Edu-

cation Guidelines pursuant to Executive Order 11246

ss ae in 58

Equal Employment Opportunity Commission, Sex Dis-

crimination Guidelines, 29 C.F.R. $§1604.1-1604.10 ..39, 51

Office of Federal Cortract Compliance, Sex Discrimi-

nation Guidelines for Government Contractors, 41

C.F.R. $60-20 . 7 - 51

Veterans Administration, Statement of Policy, 40 F.R.

27744 (July 1, 1975) ....n...-.ecccnececsceceereseencensnsensnsessnenensens 61

Wage & Hour Opinion Letter No. 388, CCH Emp. Prac-

tices Guide 1208.59 (Oct. 14, 1965) -...........e--cceceeeeeeeees 53

PAGE

Wage & Hour Opinion Letter No. 420, CCH Emp. Prac-

tices Guide §1208.591 (Feb. 11, 1966) ..............ceeeeeee 53

Wage & Hour Opinion Letter No. 425, CCH Emp. Prac-

tices Guide §1208.52 (Feb. 11, 1966) ... a

Wage & Hour Opinion Letter No. 1275, CCH Emp.

Practices Guide 95178 (Jan. 15, 1973) 20000... 53

Other Authorities Cited:

Ball, Hearings on the Economic Problems of Women,

Before the Joint Economic Committee, United States

Congress, Part Two, July 24-30, 1973 .00.2.....cee-e- 43

Bell, Working Wives and Family Income, in Economic

Independence for Women (Chapman ed. 1976) ........ 29, 34

Bixby, Women and Social Security in the United

States, 35 Soc. See. Bull. 3 (1972) ......2....-eseccecceeeseeceseees 24

Boskin, The Effects of Government Expenditures and

Taxes on Female Labor, 64 Am. Economie Rev. 251

SEITE seceicsicusshiutacemesiamadeiiateniicstanitiasiaieidiataataaniaineiinaaiamiibiidiidanea 17

Brief for Appellant, Reed v. Reed, 404 U.S. 71 (1971) 21

Brief for Appellant, Shapiro v. Thompson, 394 U\S.

BE MEIIIIIID . sestscasccsiciueriendenrmnssicteanieensstimmtanesiiammniiasaaeiaderieass 41

Brief for the Appellant, Weinberger v. Wiesenfeld, 420

ee ee eS eer 16, 23, 45

Brief for the Appellees, Frontiero v. Richardson, 411

Sa SE IIIT cevcicieeteninsdtadenesemnniamiinenninidimalll 16, 23, 29, 39

Bryant, Evans & Powell, American Women in Interna-

tional Women’s Year 41 (Market Opinion Research

SD scicunainmeninianiinn sashaindnsimeeiatniigtieaicbutmniidaiadiiina 26

Chafe, Looking Backward in Order to Look Forward:

Women, Work and Social Values in America, in

American Assembly, Women and the American

Economy 6 (Kreps ed. 1976) .................--ccccssecceceessesees 36, 48

Chafe, The American Woman (1972) .o........ecceceeeeeeseeee 48

PAGE

Chapman, Sex Discrimination in Credit: The Backlash

of Economic Dependency, in Economic Independence

for Women 263 (Chapman ed. 1976) .................-scee+e2++ 29

Citizens’ Advisory Council on the Status of Women,

A Memorandum on the Proposed Equal Rights

Amendment to the United States Constitution (1970),

reprinted in Hearings on S.J. Res. 61 Before the

Subcommittee on Constitutional Amendments of the

Senate Committee on the Judiciary, 91st Cong., 2d

EARS SER nee we oO 22

‘itizens’ Advisory Council on the Status of Women,

Women in 1971, Appendix C (1972) ............eceseeeeeees 26

Citizens’ Advisory Council on the Status of Women,

Women in 1975 (March 1976) .................cccccccccssscceosees 17

Davidson, Ginsburg & Kay, Sex-Based Discrimination,

1975 Supplement (West Pub. Co.) -00............eceeseeeeeees 35

Economie Independence for Women (Chapman ed.

IETTIIIED — sliceSicctheelicaiceiihaaaiaeiableaiaiaienamitasipeniaiedadeneinancaeieenienie 17

Equal Rights for Men and Women, 8S. Rep. 92-689, 92d

Nc TIN, UII cccrctnsicrrdiiiincsinnieininsinindsinesiniindntintensieantcianes 22

Financing the Social Security System, Hearings Before

the Subcommittee on Social Security, House Commit-

tee on Ways and Means, 94th Cong., Ist Sess. (May,

t TES ears ara eee 4, 5, 13, 14, 16, 17,

40, 41, 44, 45, 46

Freed & Foster, Taking Out the Fault but not the

Sting, 12 Trial No. 4 (April 1976) .0..2.........esssseeeeeeeeees 56

Griffiths, Sea Discrimination in Income Security Pro-

grams, 49 Notre Dame Lawyer 534 (1974) ...............-.--. 28

PAGE

Gunther, In Search of Evolving Doctrine on a Chang-

mg Court: A Model for a Newer Equal Protection,

I Sats GUI, OO CIID Sicicccicesssnecenseentconpemneosstosieosmetnmeiunne 20

Hearings on H.R. 6635, Social Security Amendments of

1939, Before the House Committee on Ways and

Means, 76th Cong., Ist Sess. (1939) oo. 45

Hoskins & Bixby, Social Security Administration Re-

search Report No. 42, Women and Social Security:

Law and Policy in Five Countries (1973) 0000000002... 24, 25

H.R. Rep. No. 91-1469, 91st Cong., 2d Sess., 1970 U.S.

Code Cong. & Admin. News, Vol. ITI, 5931 ................ 55

Income Security for Older Women: Path to Equality,

Report by the Subcommittee on Retirement Income

and Employment of the House Select Committee on

Aging, 94th Cong., Ist Sess. 2 (December 1975) ........ 16

Jacobson, American Marriage and Divorce (1959) ........ 26

Janeway, Man’s World, Woman’s Place: A Study in

Social Mythology (1971) ................ccsceccccccscsococessecesceceseree 48

Jurisdictional Statement, Brief of American Civil

Liberties Union, Amicus Curiae, and Joint Reply

Brief of Appellants and American Civil Liberties

Union, Frontiero v. Richardson, 411 U.S. 677 (1973) 21

Jurisdictional Statement, Mathews v. Coffin, No. 75-791

Ne ee +

Jurisdictional Statement, Weinberger v. Wiesenfeld,

ee a TEITITTED :sissesnencicsconsuiinssenieticiiteeiaiaaticemsaitaniaitasaeie 60

Matthews, Women Should Have Equal Rights with

FR eI 37

xiv

PAGE

Memorandum for the United States as Amicus Curiae,

Cleveland Board of Education v. La Fleur, 414 U.S.

GBB (IGT) cnncececeenceecesteeeecenennnn . 22

Motion to Affirm, Mathews v. Coffin, No. 75-791 ............ 6

Motion to Affirm, Mathews v. Jablon, No. 75-739 ...........- 6, 40

Nagel & Weitzman, Women As Litigants, 23 Hast. L.J.

171. (1971) -..-.ccccecsesscsossesesesersovsusnsensnseseweseeweteeseeeeeeesenersesenns 26

New York Times, March 7, 1976, Section 4, p. 3, col. ”

, an

1975 Manpower Report of the President neiendiamanea 33

1976 Annual Report of the Board of Trustees of the

Federal Old-Age and Survivors Insurance and Dis-

ability Insurance Trust Funds ............... 45

96 Cong. Rec. 8491, 81st Cong., 2d Sess. (1950) (o

marks Of Sen. George) ...-0--.-...0.-0---cscscascscennevenecssecessenerees 65

Note, 89 Harv. L. Rev. 95 (1975) -........------sesese= 15, 18, 21, 24,

37, 50, 68

Note, 55 Harv. L. Rev. 1030 (1942) .......... - . 65

Note, Sex Classifications in the Social Security Bene-

fit Structure, 49 Ind. L.J. 181 (1978) ............ 25, 29, 59, 68

Note, 9 U. Mich. J. L. Ref. 138 (19.5) -...-----ceesecessenesesees 56, 67

116 Cong. Rec. 28005 (1970) (remarks of Rep. Griffiths) 22

121 Cong. Rec. $7949 (daily ed. May 13, 1975) (re-

marks of Sen. Bayh) ........... resvesnanenmnieinimaaaals 67

122 Cong. Rec. H1666 (daily ed. March 4, 1976) ............ 46

122 Cong. Rec. S5014 (daily ed. April 6, 1976) (re-

marks of Sen. Church) ...... 16, 67

Pension Problems of Older Women, Hearings before

the Subcommittee on Retirement Income and Em-

ployment of the House Select Committee on Aging,

94th Cong., Ist Sess. (October 21, 1975) .......-.--ssee-se-+- 16

PAGE

President’s Task Force on Women’s Rights and Re-

sponsibilities, A Matter of Simple Justice (April

I ceemunenmerenmeremeeoes 22

Quadrennial Advisory Council on Social Security, re-

printed in 1975 House Hearings, Financing the Social

Xa 16, 66, 67, 69

Railroad Retirement System Report, H.R. Doc. No.

350, 92d Cong., 2d Sess. (1972) oonccccccccccccccccccecceceeo-ee 44

Randolph, Sex Discrimination in the Family Benefits

Section of the Social Security Act, 8 Clearinghouse

Review 535 (December 1974) ooo... cccccccccecccoceeceeoeeee.. 28

Recommendations for Social Security Legislation, Re-

port of the Advisory Council on Social Security to

the Senate Finance Committee, S. Doc. No. 208, 80th

Cong., 2d Sess. 6 (1949) oo. ccccccccccececescesecerceseescoeeceees 44

Riches, Women Workers and Their Dependents Under

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In THE

Supreme Court of the United States

Ocroser Term, 1975

No. 75-699

F. Davin Matuews, Secretary of

Health, Education, and Welfare,

Appellant,

nn Oe

Leon GOLDFARB,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR APPELLEE

Opinion Below

The opinion of the United States District Court for the

Eastern District of New York is reported at 396 F. Supp.

308 (1975).

Jurisdiction

The judgment of the United States District Court for the

Eastern District of New York, declaring portions of 42

U.S.C. §402 unconstitutional on the ground that they “de-

prive women of protection for their families which men

receive as a result of their employment,” was entered June

’

17, 1975. Notice of appeal to this Court was filed July 15,

1975. On the Solicitor General’s application, the time for

docketing this appeal was twice extended by order of Mr.

Justice Marshall, first to October 13, 1975, then to November

12, 1975. The Jurisdictional Statement was filed Novem-

ber 12, 1975, Appellee’s Motion to Affirm was filed Decem-

ber 10, 1975, and Appellant’s Brief in Opposition to Motion

to Affirm was filed January 16, 1976. Probable jurisdiction

was noted February 23, 1976. Jurisdiction to review this

decision on appeal is conferred by 28 U.S.C. §1252.

The Appendix and Brief for Appellant were due April 8,

1976. On the Solicitor General’s April 7, 1976 letter applica-

tion, and over the opposition of counsel for appellee, the

filing time was extended to May 8, 1976. By letter dated

May 7, 1976, the Solicitor General requested a further ex-

tension of Appendix and Brief filing time to May 22, 1976.

This request, opposed by appellee, was denied May 10, 1976.

On June 2, 1976, twenty-five days after expiration of the

extended period, appellee received the Appendix and Appel-

lant’s Brief. Appellant has neither sought nor received

this Court’s leave for filing long out of time.

Question Presented

Whether 42 U.S.C. §§402(b), (c)(1)(C), (e), (f)(1)(D),

which authorize social security benefits for a spouse on a

male insured individual’s earnings record without regard

to dependency, but condition benefits for the spouse of a

female insured individual on proof of dependency, dis-

criminate invidiously on the basis of gender in violation of

the fifth amendment to the Constitution.

‘

en hee

Statute Involved

42 U.S.C. §402, in pertinent part, is set out in an adden-

dum to this brief, infra, pp. 71-74.

Statement

This is a direct appeal from a final judgment of a three-

judge district court declaring 42 U.S.C. §§402(b), (c)(1)

(C), (e), (f)(1)(D) unconstitutional insofar as these pro-

visions discriminate against female individuals insured

under social security and their spouses on the basis of sex.

It is one of five appeals docketed in this Court by appel-

lant, Secretary of Health, Education, and Welfare, involv-

ing substantially the same question: whether the stringent

support test restricting old-age and survivors’ benefits to a

spouse on a female insured individual’s earnings record,

when no support test conditions benefits to a spouse on a

male insured individual’s earnings record, discriminates in-

vidiously on the basis of gender in violation of the fifth

amendment to the Constitution. The instant appeal was

the first docketed. The remaining appeals, in order of

docketing, are: Mathews v. Silbowitz, No. 75-712, opinion

below, 397 F. Supp. 862 (S.D. Fla. 1975) ; Mathews v. Jab-

lon, No. 75-739, opinion below, 399 F. Supp. 118 (D. Md.

1975) ; Mathews v. Coffin, No. 75-791, opinion below, 400 F.

‘This is an equal protection-gender discrimination issue. In

this context, “ the] Court’s approach to Fifth Amendment equal

protection claims has always been precisely the same As to equal

protection claims under the Fourteenth Amendment.” Weinberger

v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).

Supp. 953 (D.D.C. 1975) ;? Mathews v. Abbott, No. 75-

1643, opinion below, —— F. Supp. —— (N.D. Ohio, Feb-

ruary 12, 1976). Fach of the five district courts held the

gender-explicit sup ort test unconstitutional. Old-age (hus-

band’s insurance) i enefits are at issue in Silbowitz, Jablon

and Abbott; survivors’ (widower’s insurance) benefits are

at issue in the instant case; both old-age and survivors’

(husband’s and widower’s insurance) benefits are at issue

in Coffin. The Secretary has indicated that if this Court

affirms the decision below, he may withdraw the remaining

appeals.®

Seventy year old Leon Goldfarb, a retired federal em-

ployee, applied for monthly social security survivors’ (wid-

ower’s insurance) benefits on the earnings record of his de-

ceased wife, Hannah Goldfarb. Leon Goldfarb is not an

insured individual under social security.‘ Hannah Goldfarb,

a long-term public (municipal school system) employee, was

covered by a municipal employees’ pension (City of New

York, Teachers’ Retirement System) and was a fully in-

* In Jablon and Coffin, appeals have also been docketed by plain-

tiffs below. These appeals, Nos. 75-727 and 75-765, challenge the

denial of demands by plaintiffs Jablon and Coffin for injunctive

relief. They present the question:

Whether 42 U.S.C. §405(g) prohibits the federal courts from

enjoining the operation of a provision of the Social Security

Act held to be unconstitutional.

* Jurisdictional Statement at 7, Mathews v. Coffin, No. 75-791.

‘Universal social security coverage of gainfully-employed work-

ers, including federal employees, has been identified as a vital

objective. Financing the Social Security System, Hearings before

the Subcommittee on Social Security, House Committee on Ways

and Means, 94th Cong., Ist Sess. (May, June 1975) [hereinafter

cited as 1975 House Hearings, Financing the Social Security

System] 422-23 (Statement of Robert Myers, former chief actuary

for the Social Security Administration) ; see id. at 150.

mS te 8

eured individual under social security. Prior to her death

in 1968, Hannah Goldfarb had contributed to social security

pursuant to the Federal Insurance Contributions Act,* for

some twenty-five years.

Leon Goldfarb’s application for survivors’ benefits was

denied. A sole reason was supplied:

You do not qualify for a widower’s benefit because you

do not meet one of the [statutory] requirements for

such entitlement. This requirement is that you must

have been receiving at least one half support from your

wife when she died.

Appendix at 20. To qualify under the statutory “one-half

support” formula, the applicant must claim and prove that

his wife supplied all her own support and at least half of

his, in other words, that her income was three times his.’

* Labelling pension plan and social security “alternative sys-

tem(s]” (Brief for the Appellant at 8) is misleading. Receipt

of a pension, whether from private or public employment, does not

disqualify a covered worker, or his or her spouse, from collection

of benefits under social security. Like Hannah Goldfarb, about

two-thirds of the state and local employees in the country are

insured under social security. See 1975 House Hearings, Financ-

ing the Social Security System 423; cf. id. at 150, 422-23 (sub-

stantial numbers of career federal employees supplement their

civil service retirement income by qualifying as insured individuals

under social security).

* See 1975 House Hearings, Financing the Social Security Sys-

tem 629, 632 (Statement of former Secretary of Health, Educa-

tion, and Welfare Wilbur J. Cohen: F-.I.C.A. title designation

underscores the congressional view of the social security program’s

essential character, it is not a welfare system or simply “another

form of tax,” “it provides a form of monthly life insurance’’).

* As appellant acknowledges (Brief for the Appellant at 25 n.

14), it is not enough that the wife supply more than 50 percent

of the couple’s income. All her own support, one-half of his, is

effectively a 3:1 or 75 percent marital unit support test. See

Such proof is required only when the insured individual is

female. Benefits to a spouse on a male insured individual’s

earnings record are not conditioned upon a support test.

It is undisputed that, had the gender of these spouses been

reversed, all statutory requirements for benefit entitlement

would have been met.

Summary of Argument

42 U.S.C. $§402(b) and (e) authorize old-age and sur-

vivors’ benefits for the spouse of a male insured indi-

vidual whatever the ratio of husband/wife contributions to

family expenses. 42 U.S.C. $§402(c) and (f) authorize

old-age and survivors’ benefits for the spouse of a female

insured individual only when wife’s contributions to family

expenses are three times as large as husband’s. This differ-

ential, based on gender as such, reflects the familiar stereo-

type that, throughout the Nation’s history, has operated to

devalue women’s efforts in the economic sector.

The §402 classification, coinciding “with the role-typing

society has long imposed,” dees not fairly and substantially

advance legitimate governmental ends. Were Leon Gold-

farb the insured individual and Hannah Goldfarb the re-

tired worker not covered by social security on her own

Motion to Affirm at 4a, Mathews v. Jablon, No. 75-739, and

Mathews v. Coffin, No. 75-791; cf. id. at 2a (female insured indi-

vidual Edna Coffin and spouse Edgar Coffin were approximately

equal earners, her public employees’ pension was slightly larger

than his). See also Frontiero v. Richardson, 411 U.S. 677, 680

n.4 (1973) (substantially identical gender line declared uncon-

stitutional) ; Clark v. Celebrezze, 230 F. Supp. 798 (D. Mass. 1974),

aff'd, 344 F.2d 479 (1st Cir. 1965) (indicating the severe impact of

the §402 gender line on the most sorely pressed two-earner fam-

ilies).

account, both members of the family unit would qualify

for social security benefits in addition to their civil service

pensions. Since the insured individual in this case is female,

although her contributions to social security were made on

the same basis as a male worker’s, the marital unit receives

fewer benefits.

The statutory scheme thus favors one type of marital

unit over another. In the favored unit, husband’s employ-

ment attracts secondary benefits as a matter of right with-

out regard to wife’s dependency. In the disfavored unit,

wife’s employment generates the same benefits only if she

furnishes at least three-fourths of the unit’s support. This

scheme, which places gainfully-employed women on a par

with gainfully-employed men for social security contribu-

tion purposes, but subordinates women to men for the

purpose of determining secondary benefits due under an

insured individual’s account, discriminates invidiously: “it

provides the family of a female wage earner less protection

than it provides the family of a male wage earner, even

though the family needs may be identical.”

II.

The familiar and once pervasive legislative assumption

reflected in 42 U.S.C. §402, that women depend on men but

not vice versa, never matched reality, and is today further

than ever from the truth. Women have participated in

‘vital family income production activity in substantial num-

bers throughout the decades in which family coverage has

been a feature of social security. Increase in women’s work

force participation rates during these decades has been

marked among women now at retirement age.

The 42 U.S.C. $402 gender classification ignores the fact

of family economic interdependence and is unconcerned

with the woman worker, her status, her role and interest

in insuring family security. Rather, the scheme underesti-

mates women’s contributions to family support, overesti-

mates men’s, and places an official imprimatur on categori-

zation of women as second-class workers. By rewarding

men’s employment more than women’s, the arrangement

has all the earmarks of self-fulfilling prophecy: it impedes

removal of artificial barriers to recognition of women’s

full, human potential, and retards society’s progress toward

equal opportunity, free from gender-based discrimination.

II.

The 42 U.S.C. §402 discrimination against families that

include a female in covered employment cannot be ration-

alized as part of a “compensatory” or “remedial” plan.

Rather, the scheme “heaps on” an additional disadvantage,

exacerbating, not alleviating, past discrimination encoun-

tered by women in the labor market. Three times in as

many years this Court has been invited to label “benign” a

classification that instructs the gainfully-employed female:

your earnings, solely on the basis of your sex, are less valu-

able to your spouse and family than the earnings of a simi-

larly positioned male. That invitation to dissemble, de-

clined in Frontiero v. Richardson, 411 U.S. 677 (1973), and

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), warrants

firm rejection in the case at bar.

IV.

As in Frontiero, the Government in the instant case has

not and could not offer “concrete evidence” that presuming

women dependent “in fact saves the Government any

money.” Beyond question, the 42 U.S.C. §402 3:1 depen-

dency test, were it applied across the board, would dis-

qualify a substantial population of women. Since many

millions of married women earn enough to cover at least

half their own living expenses, the one-way dependency

test cannot be justified as a reasonable, economy-minded

substitute for functional, sex-neutral classification.

Nor can the derivative benefits here at issue be brushed

aside by labelling them a “windfall.” The $402 differential

underscores for the woman her subordinate status as a

gainfully-employed individual. This reality is not disguised

by telling her that “windfalls” are reserved for those who

claim under the account of a man.

Administrative or fiscal policy considerations do not

justify resort to gender pigeonholing in lieu of functional

description where the effect of the categorization is to deni-

grate the efforts of women “whose earnings contribute

significantly to their families’ support.” Congress has on

its agenda adjustments needed to alleviate immediate

strains on the social security program and to tailor the

‘system to demographic changes and projections for the de- |

cades.ahead. But no participant in the legislative debate

over revision of the social security system has advocated

retention of gender classifications as a rational or realistic

means to help hold the line, even for the shortest term. On

the contrary, proposals relevant to this issue are in notable

accord: any benefit available to a male insured individual’s

spouse should be made available, on the very same basis,

to a female insured individual’s spouse.

VI.

Benefits distributed by the federal government to gain-

fully-employed individuals and their families must be allo-

cated with an even hand and without resort to gross gender

classification. Decisions of this Court establish that the

importance of a woman’s work force participation may not

be discounted in employment-related regulation.

As underscored by multiple federal efforts to counter

practices that deny women equal rights and opportunities

in the labor market, conspicuously including appellant’s

own published guidelines, the 42 U.S.C. §402 gender-based

differential is wedded to an old and misguided paternalistic

notion at odds with national antidiscrimination policy. Con-

gress and every concerned federal agency has identified as

invidious discrimination against gainfully-employed wo-

men provision of benefits for wives or widows of male

workers when the same benefits are not made available on

the same terms to the husbands or widowers of female

workers. These federal directives reflect that in an egali-

tarian union, man depends on woman fully as much as

woman depends on man.

VII.

Upon determining that the gender line drawn by 42 .

U.S.C, $402 is unconstitutional, the Court, consistent with

the dominant congressional purpose, should declare the

social insurance benefits in question equally applicable to

men and women. The remedial issue in this case involves

tentative adjudication, not definitive disposition by this

Court. Ultimate authority to eliminate or reshape social

security spousal benefits remains with Congress. Conso-

nant with the pattern unexceptionally followed by Congress

in recent years, the legislature would extend the same bene-

fits to the spouses of male and female insured individuals

“without subjecting them to the humiliation” of a depen-

dency test.

A cross-the-board dependency test would be inconsistent

with the basic design of social security as an “earned

right,” not a public assistance, need-determined welfare

program. Moreover, extension of the support requirement

would impose an administrative burden of potentially mon-

strous proportion. Finally, since similarly cireumstanced

spouses of male wage earners have been accorded the bene-

fits in question, the denial of equal protection to appellee

Goldfarb can be repaired only by according him benefits

from the date of his application. Neither application of a

dependency test cross-the-board nor elimination of sur-

vivors’ benefits forms any part of the “case or controversy”

Leon Goldfarb’s complaint presents. Under the circum-

stances, declaration of the invalidity of the 42 U.S.C. §$§402

(c)(1)(C) and (f)(1)(D) one-way, one-half support stipu-

lation is the only appropriate judicial remedy.

ARGUMENT

The gender-based criterion established by 42 U.S.C.

§§402(b), (e)(1)(C), (e), (£)(1)(D) discriminates

invidiously against gainfully-employed women insured

under social security as well as against their surviving

spouses.

A. The statute discriminates against gainfully-employed

women insured under social security.

[T]he Constitution . . . forbids the gender-based dif-

ferentiation that results in the efforts of female work-

ers required to pay social security taxes producing less

protection for their families than is produced by the

efforts of men. Weinberger v. Wiesenfeld, 420 U.S.

636, 645 (1975).

Under 42 U.S.C. §§402(e)(1)(C) and (f)(1)(D), a female

wage earner's social security contributions attract old-age

and survivors’ benefits for her spouse only if the wage

earner supported herself and supplied “at least one-half”

of her husband’s support. By contrast, no support test

restricts old-age and survivors’ benefits due to a spouse

under a male wage earner’s account. 42 U.S.C. §§402(b),

(e). This discrimination, based on gender as such, cannot

be distinguished on any principled ground from the dif-

ferentials declared unconstitutional in Wiesenfeld, supra,

and Froutiero v. Richardson, 411 U.S. 677 (1973).

Like the dependency test for male but not female mili-

tary spouses invalidated in Sharron and Joseph Fronveros

case,® the virtually identical test in the case at bar “de-

prive([s] women of protection for their families which men

receive as a result of their employment.” Wiesenfeld, 420

U.S. at 645. The work-related equal benefits principle con-

firmed in Fronticro plainly applies to social insurance due

under a wage earner’s account. As this Court explained

in Wiesenfeld, 420 U.S. at 646-47:

‘We do not see how the fact that social security bene-

fits are “noncontractual” can sanction differential pro-

tection for covered employees which is solely gender

based... . [T]he statutory right to benefits is directly

related to years worked and amount earned by a

covered employee, and not to the need of the bene-

ficiaries directly.

Boldly underscoring the point, the Department of Health,

Education, and Welfare consistently emphasizes in public

pronouncements “the earned-right, earnings-related princi-

ples behind the social security program”:

Social security is purchased insurance for retirement,

and not welfare. (Emphasis supplied.)

Statement of Hon. Caspar Weinberger, then Secretary of

Health, Education, and Welfare, in 1975 House Hearings,

Financing the Social Security System 436, 440, 441. See

“Under the statutory schemes held to deny equal protection

in Frontiero, Sharron Frontiero received housing, medical and

dental benefits for herself, without regard to her marriage. just

as Hannah Goldfarb qualified for social security coverage for her-

self, without regard to her marriage. Pursuant to this Court's

judgment in Fronticro, medical and dental benefits accrued di-

rectly to Joseph, and Sharron received for herself and Joseph

the married members housing allowance.

elso id. at 627, 629, 632 (Statement of Wilbur J. Cohen,

former Secretary of Health, Education, and Welfare,

sharply distinguishing social security insurance contribu-

tions from general revenue taxation, and social security

insurance payments from public assistance, need-deter-

mined welfare payments).”

Like the §402(g) mother’s benefit declared applicabie to

fathers as well in Wiesenfeld, the gender line in the instant

ease denies the female worker protection for her spouse

which a similarly situated male worker receives. As Mr.

Justice Powell, writing for himself and Mr. Chief Justice

Burger, clarified, Wiesenfeld is not properly explained as

a parental “child care” case, for the “payment of benefits

is not conditioned on the surviving parent’s decision to

remain at home.” 420 U.S. at 654. Rather, the critical

point made by Mr. Justice Powell with respect to Paula

Wiesenfeld applies with equal force to Hannah Goldfarb:

The statutory scheme . . . impermissibly discriminates

against a female wage earrer because it provides her

family less protection than it provides the family of a

male wage earner, even though the family needs may be

identical.

° Throughout the Hearings, government representatives and ad-

visers, as well as House members, identified three dominant themes

in the social security program: earned right to benefits, wage-

related contributions, and absence of means testing. See, €.g-, id.

at 113-14, 510, 519, 656, 67s, 682, 686. The “earned-right prin-

ciple” basic to the social security system has been stressed most

ecently by the current Secretary of Health, Education, and Wel-

jam F. David Mathews. See New York Times, March 7, 1976,

Section 4, p. 3, col. 2.

420 U.S. at 654-55.° Hannah Goldfarb, like Paula Wiesen-

feld, was treated on a par with men for social security con-

tribution purposes, but as subordinate to men for the pur-

pose of determining secondary benefits due under her ac-

count. See Wiesenfeld, 420 U.S. at 645.

an the court below pointedly observed, 396 F. Supp. at

Whatever may have been the ratio of contributions

to family expenses of the Goldfarbs while they both

worked, Mrs. Goldfarb was entitled to the dignity of

knowing that her social security tax would contribute

to their joint welfare when the couple ... retired and

to her husband’s welfare should she predecease him.

She paid taxes at the same rate as men and there is

not the slightest scintilla of support for the proposi-

tion that working women are less concerned about

their spouses’ welfare in old age than are men. The

government has failed to justify this gender-based

discrimination.

The same assessment has been made in every reasoned dis-

cussion of the §§402(c)(1)(C) and (f)(1)(D) gender line.

Four federal district courts in addition to the court below

have rendered final judgments holding that the differential

operates invidiously against the gainfully-employed mar-

ried woman. Silbowitz v. Secretary of Health, Education,

7° Pressed to devalue the path-marking decisions in Frontiero

and Wiesenfeld, appellant dismisses the Court’s principal

on the wage-earning woman as “merely rhetorical.” Brief L-~

Appellant at 13 n. 2. This devaluation conflicts head-on with the

Solicitor General’s own principled declaration See text following

note 19 infra. For thoughtful description of the significance of

the Frontiero and Wiesenfeld

Rev. 95 (1975). feld precedents, see Note, 89 Harv. L.

and Welfare, 397 F. Supp. 862 (S.D. Fla. 1975) (husband’s

insurance benefits) ; Jablon v. Secretary of Health, Educa-

tion, and Welfare, 399 F. Supp. 118 (D. Md. 1975) (widow-

er’s insurance benefits) ; Coffin v. Secretary of Health, Edu-

cation, and Welfare, 400 F. Supp. 953 (D.D.C. 1975) (hus-

band’s and widower’s insurance benefits) ; Abbott v. Wein-

berger, —— F. Supp. —— (N.D. Ohio, February 12, 1976)

(husband’s insurance benefits)."’ Indeed, appellant’s prede-

cessor and the Solicitor General have acknowledged before

this Court that the sex differentials involved in Frontiero

and Wiesenfeld are “very closely analogous” * to, and re-

flect the same congressional assumption” as the differential

11 No court confronted with the issue has upheld the gender line.

Cf. Bowen v. Hackett, 361 F. Supp. 854, 861 (D.R.I. 1973)

(Reed and Frontiero require rejection of a statutory presumption,

drawn for social insurance purposes, that father provides the

main support of minor child).

‘2 Brief for the Appellant at 22, Weinberger v. Wiesenfeld.

18 Brief for the Appellees at 8, Frontiero v. Richardson. That

assumption, woman’s dependence/man’s independence, is in fact

the basis of social security’s family insurance scheme. See pp.

25-29 infra. The assumption has been condemned in every analysis

focused on genuine needs and interests of married female workers.

See, e.g., 1975 Hearings, Financing the Social Security System

204 (recommendation of the Quadrennial Advisory Council on

Social Security to eliminate one-half support test for husband's

and widower’s benefits: “for any category of women entitled to

secondary benefits the corresponding category of men should

be entitled to benefits on the same basis”), 399 (former chief

actuary, Social Security Administration recommendation for im-

mediate elimination of the §402 husband’s and widower’s benefit

one-half support requirement, for if Congress does not “grab the

ball . . . and run with it... [s]urely, the courts will at some

time in the near future make this change”) ; 122 Cong. Rec. $5014

(daily ed. April 6, 1976) (remarks of Sen. Church, Chairman,

Senate Committee on Aging) ; Pension Problems of Older Women,

Hearings before the Subcommittee on Retirement Income and

Employment of the House Select Committee on Aging, 94th Cong.,

lst Sess. 43-46, 55 (October 21, 1975); Income Security for

Older Women: Path to Equality, Report by the Subcommittee on

at issue here. Rebuffed by the Court’s firm response to

earlier essays, appellant now deals with the disadvantage

the scheme imposes on the wage-earning woman by ignor-

ing it. See Brief for the Appellant at 36.

In sum, the overt, lump gender classification in question

devalues the woman’s efforts in the job market by marking

her as an individual whose participation in the paid labor

force is subordinate to that of the family’s man. Con-

sistent with this Court’s precedent from Reed v. Reed, 404

U.S. 71 (1971), through Stanton v. Stanton, 421 U.S. 7

(1975), the gender line must be regarded as an impermis-

sible means to determine benefits due on the earnings rec-

ord of an individual insured under social security.

Retirement Income and Employment of the House Select

mittee on Aging, 94th Cong., Ist Sess. 2, 34 inner 4978).

U. S. Department of Labor, Employment Standards Administra.

tion, Women’s Bureau, 1975 Handbook on Women Workers, Bul-

letin 297 [hereinafter cited as 1975 Handbook on Women

Workers] 303-307, 308 n. 7, 312; Citizens’ Advisory Council on

the Status of Women, Women in 1975, at 13, 121 (March 1976)

(“benefits for husbands and widowers should be prvvided without

a support test as are benefits for wives and widows”) ; U. S. Com-

mission on Civil Rights, Toward Elimination of Sex-Based Differ-

entials in the Social Security System 7-10, 39 (December 197+)

| Nanay can Ay - —_ = form of sex discrimination”

e overt gender classi ining i i

pon By Seg g cations remaining in the Social Se-

** Economists have noted the adverse, unfair impact o

and “deadweight loss to society” yielded by oul ‘a

based on the notion that females are properly treated as subordi-

nate breadwinners. Boskin, The Effects of Government Expendi-

tures and Taxes on Female Labor, 64 Am. Economic Rev. 251

295-56 (1974); 1975 House Hearings, Financing the Social Se.

curity System 388 (statement of Harvard economist Martin Fel-

stein). See generally Economic Independence for Women (Chap-

my se 1976) (especially articles by Griffiths at 23 and Bell

B. The statute discriminates against surviving spouses of

female workers insured under social security.

Solely on account of his sex, Leon Goldfarb is disquali-

fied by statute from receiving social security benefits. Iden-

tically situated spouses, like identically situated insured

wage earners, are treated differently under 42 U.S.C.$$402

(b), (c)(1)(C), (e), (f)(1)(D) solely on the basis of gender.

A double-edged discrimination is inherent in the $402 clas-

sification. See Wiesenfeld, 420 U.S. at 651-52 (explicitly

acknowledging that the sex-based classification had a nega-

tive impact on men as well as on gainfully-employed wo-

men); Note, 89 Harv. L. Rev. 95, 99 n.38 (1975). Identi-

cally situated persons are accorded different treatment

by reason of a characteristic over which they have no con-

trol, and which bears no necessary relationship to their

abilities, needs, or functions. No woman in appellee’s situ-

tion can be denied the benefits in question; no man so

situated caa obtain them.** No female wage earner can

obtain through her social security contributions the cover-

age for her spouse as of right and regardless of his depen-

15 See Jablon v. Secretary of Health, Education, and Welfare,

399 F. Supp. at 130. Beyond question, the §402 3:1 dependency

test, were it applied across the board, would disqualify a sub-

stantial population of women. See, c.g., 1975 Handbook on Women

Workers 5, 115, 139 (in 1973, married women working full-time

year round contributed nearly 2/5 of family income; that year,

women accounted for 34% of all federal white-collar workers).

See also U.S. Department of Commerce, Bureau of the Census,

Current Population Reports, Special Studies, Series P-23 No. 58:

A Statistical Portrait of Women in the United States 52 (Table

10-10) (April 1976). Appellant’s claim that a cross-the-board

dependency test would disqualify only “a small percentage of

non-dependent women” (Brief for the Appellant at 35) is con-

tradicted by the very facts appellant presents. The 27% median

contribution of the wife (including those who work part-time)

to total family income (see Brief for the Appellant at 34) would

disqualify her under the one-half support test. See note 7 supra.

dency, guaranteed to the spouse of every male wage earner.

Like Stephen Wiesenfeld and Joseph Frontiero, Leon Gold-

farb properly invokes the equal protection principle to

establish his right to even-handed treatment, to receipt of

social security benefits computed, without regard to gen-

der,** on the basis of the contribution record of his wage-

earning spouse.

Employment of a gender-based criterion as a means

to determine benefits due on the earnings record of an

individual insured under social security constitutes a

denial of the equal protection of the laws guaranteed

by the due process clause of the fifth amendment.

To survive constitutional review, gender-based classifica-

tions, at a minimum, must be “reasonable, not arbitrary,

and must rest upon some ground of difference having a

fair and substantial relationship to the object of the legis-

lation, so that all persons similarly circumstanced shall be

treated alike.” Reed v. Reed, swpra, 404 U.S. at 76, quot-

ing from F. 8. Royster Guano Co. v. Virginia, 253 U.S. 412,

415 (1920). Post-Reed precedent, guided by the Court’s

unanimous turning-point decision, responds more elabora-

tively to the root cause of law-sanctioned gender lines that

** Appellant’s heavy reliance on Weinberger v. Salfi, 422 U.S.

749 (1975) (Jurisdictional Statement 4-5, Brief for a Appellant

at 6, 14, 32) is as misplaced as is his offhand dismissal of Wiesen-

feld, supra, as failing to provide “useful instruction.” Brief for

the Appellant at 14. No obvious and immutable badge of iden-

tification figured in Salfi. Cf. Mathews v. Lucas, —~— U.S. ——

(June 29, 1976) (Slip Opinion at 10, 17). Nor does “due process/

conclusive presumption” analysis, the doctrine reexamined in Salfi,

have ae Saas > the 7 case, which involves “discrimina-

tion based on gender as such.” See Geduldig v. Ai 5S.

484, 496 n. 20 (1974). a

impact adversely upon women who seek to pursue eco-

nomic or political activity on the same basis as men.

See especially Frontiero, Wiesenfeld, and Stanton v. Stan-

ton, supra. It is appellee’s position that the 42 U.S.C.

§§402(¢e)(1)(C) and (f)(1){D) one-half support test for

male but not female spouses does not fairly and substan-

tially advance legitimate governmental ends.” A fortiort,

the test does not meet the heightened review standard im-

plicit in the Court’s post-Reed decisions.

Alert to the impossibility of justifying this gender line

absent the Court’s willingness to adopt “anything goes”

as the appropriate test, appellant tenders a revisionist ver-

sion of the current decade’s precedent. Brief for the Ap-

pellant at 9-14. Reed is written off as a case “not based

upon special considerations relating to sexual classifica-

tions.” Jd. at 11. Assuming appellant’s “close study”

(id. at 9) extended to Shepard’s Citations and the Index

to Legal Periodicals, he is surely acquainted with the virtu-

ally unanimous view of lower courts and commentators:

“Only by importing some special suspicion of sex-related

means ... can the [Reed] result be made entirely per-

suasive.” Gunther, In Search of Evolving Doctrine on a

'' Reed established that a “legitimate” legislative objective does

not suffice to justify resort to a gender-based criterion. See 404

U.S. at 76 (legislative objective, reducing probate court workloads,

did not lack legitimacy) ; Gunther, In Search of Evolving Doctrine

on a Changing Court: A Model for a Newer Equal Protection, 86

Ilarv. L. Rev. 1, 36 (1972). In Frontiero, supra, and Wiesenfeld,

supra, the legislative means, gross gender classification, not the

legislative objective, provision of benefits to the family or spouse

of a gainfully-employed individual, rendered the statutory ar-

rangements infirm. See also Taylor v. Louisiana, 419 U. 8. 522, at

538 (1975) (although the special sex-based exemption is imper-

missible. the legislature remains free to prescribe relevant quzlifi-

cations for jurors and to provide reasonable exemptions).

Changing Court: A Model for a Newer Equal Protection,

86 Harv. L. Rev. 1, 34 (1972); Wood v. Mills, 528 F.2d 321,

324 (4th Cir. 1975) (Reed teaches that sex-based classifica-

tions require “strong justification”).

Equally anomalous, and irreconcilable with a pretension

to “close study,” is appellant’s assertion that the Court

has “explicitly rejected” inclusion of sex among the suspect

categories. Brief for the Appellant at 10. As even cursory

review of Stanton v. Stanton, supra, reveals, that issue

remains open: to date, the Court has found it “unneces-

sary ... to decide whether a classification based on sex

is inherently suspect.” 421 U.S. at 13."

Since appellant’s presentation ultimately rests on this

Court’s readiness to treat the gross gender classification

before it with the utmost indulgence (Brief for the Appel-

* Briefs in Reed and Frontiero discuss in detail the prime

generator of gender-based classifications in the law: the notion that

social roles are ordained by sex, that woman ’s primary occupation

is (or should be) wife and mother, man’s, work in the world out-

side the home. Brief for Appellant, Reed v. Reed, supra; Juris-

dictional Statement, Brief of American Civil Liberties Union,

Amicus Curiae, and Joint Reply Brief of Appellants and American

Civil Liberties Union, Fronttero v. Richardson, supra (lingering

attachment to the notion of woman’s place in man’s world has

caused perpetuation of lump treatment by sex in the face of

forthright recognition that such en masse categorization is funda-

mentally unfair where race or national origin is the birth char-

acteristic in question). Cf. Mathews v. Lucas, —— USS.

= 1976) (Slip Opinion at 10, 17); Note, 89 Harv. L. Rev.

(1975).

Since the differential here at issue works an invidious discrimi-

nation of the precise kind and quality at issue in Frontiero and

Wiesenfeld, the decision below can be affirmed on the authority

of those precedents. The course appellant urges this Court to

follow, on the other hand, would necessitate a definitive ruling

that sex has no place among the suspect categories.

lant at 14-15, 30, 32),** it is appropriate to recall the Solic-

itor General’s own appraisal of Reed and Frontiero some

two and a half years ago:

It is now settled that the Equal Protection Clause of

the Fourteenth Amendment (like the Due Process

Clause of the Fifth) does not tolerate discrimination

on the basis of sex. Reed v. Reed, 404 U.S. 71; Fron

tiero v. Richardson, 411 U.S. 677.

Memorandum for the United States as Amicus Curiae

(Robert H. Bork, Solicitor General) at 8, Cleveland Board

of Education v. La Fleur, 414 U.S. 632 (1974).

‘* Overwhelming congressional approval of the equal rights

amendment surely was not intended to deter dynamic judicial in-

terpretation of the fifth and fourteenth amendments to bar law-

sanctioned sex discrimination. During debate on the amendment,

the principal proponent in the House, Representative Martha

Griffiths, declared -

There never was a time when decisions of the Supreme Court

{under the fifth and fourteenth amendments] could not have

done everything we ask today. 116 Cong. Rec. 28005 (1970).

Nonetheless, she urged her colleagues to provide a further consti-

tutional guarantee of equality of rights and responsibilities be-

tween the sexes so that there would not be the slightest doubt that

men.and women stand as equals before the law. Cf. 2 J. Story,

Commentaries on the Constitution of the United States §§1938,

1939 (5th ed. 1891). See also Citizens’ Advisory Council on the

Status of Women, A Memorandum on the Proposed Equal Rights

Amendment to the United States Constitution 9-10 (1970), re-

printed in Hearings on S.J. Res. 61 Before the Subcommittee on

Constitutional Amendments of the Senate Committee on the Judi-

ciary, 91st Cong., 2d Sess. at 381-82 (1970); President’s Task

Force on Women’s Rights and Responsibilities, A Matter of Simple

Justice 4 (April 1970) ; Equal Rights for Men and Women, S. Rep.

92-689, 92d Cong., 2d Sess. 10 (1972).

A. The 42 U.S.C. §§402(b), (¢)(1)(C), (e), (f)(1)(D)

gender line favors marital units with a male insured indi-

vidual over units with a female insured individual;. this

favoritism does not fairly and substantially advance legiti-

mate governmental ends.

Were Leon Goldfarb the municipal pensioned employee

insured under social security, and Hannah Goldfarb the

federal employee not covered by social security on her own

account, both members of the family unit would qualify for

social security benefits in addition to their civil service

pensions. Since the insured individual in this case is female,

although her contributions to social security were the same

as a male wage earner’s, the marital unit receives fewer

benefits. In other words, the statutory scheme here, just

as the schemes in Frontiero” and Wiesenfeld,” favors one

type of marital unit over another. And the basis for dis-

tinction is that in the favored unit, husband’s employment

attracts the old-age or survivors’ benefit. His employment

generates secondary benefits as of right without regard to

his wife’s dependency; her employment generates those

same benefits only if she outearns her husband 3:1.

The pernicious impact of distinctions so grounded has

become apparent: they intrude on private decision-making

in an area in which the law should maintain strict neu-

20In defending the Frontiero classification before this Court in

1972-73, the Solicitor General neted that similar distinctions are

‘found in other federal legislation. He supplied only one example:

the very social security differential at issue in the case at bar.

Brief for the Appellees at 8, Frontiero v. Richardson.

21 In 1974-75, when the exigencies of this case did not determine

his course, the Solicitor General maintained that the line drawn

in Wiesenfeld and the one in question here are “very closely

— Brief for the Appellant at 22, Weinberger v. Wiesen-

eld.

trality.* For when a statute assumes gainful employment

as a domain in which men come first, women second, the

effect is to promote the traditional division of labor be-

tween men and women, to impede removal of artificial

barriers to recognition of women’s full, human potential,

and to retard society’s progress toward equal opportunity,

free from gender-based discrimination.” Laws of this

genre, statutes that make convenient assumptions about

“the way women (or men) are,” were found constitutionally

infirm in Reed, Frontiero, Wiesenfeld and Stanton. See

also Taylor v. Louisiana, supra. On any reasoned analysis,

those precedents must control the case at bar.’ See Note, 89

Harv. L. Rev. 95 (1975).

*? See Stanton v. Stanton, supra, 421 U.S. at 15 (emphasizing

the “self-serving” quality of distinctions that “eoincide with the

role-typing society has long imposed”) ; Note, 89 Harv. L. Rev. 95,

at 100-103 (1975) ( “(Legislative interference with an individual's

choice of social roles, rather than a concern about stigma .

should guide analysis of the stereotyping effects of gender-specific

classifications.”’ ).

23 See note 14 supra. The Social Security Administration has

acknowledged this effect in at least two publications: Hoskins &

Bixby, Social Security Administration Research Report No. 42,

Women and Social Security: Law and Policy in Five Countries

94-95 (1973); Bixby, Women and Social Security in the United

States, 35 Soc. Sec. Bull. 3, 7 (1972).

As to the insidious consequences of the paternalistic assumption

that women depend on men, but not vice versa, see Vuyanich v.

Republic Nat’l Bank, 409 F. Supp. 1083, 1089 (N.D. Tex. 1976)

(supervisor’s alleged statement that employee probably did not

need a job because her husband was a Caucasian “smacks of sexual

as well as racial discrimination”).

B. The legislative presumption underlying the §402 differ-

ential, that women depend on men but not vice versa, is

today further than ever from the truth and in fact never

matched reality.

When the Federal social security program was intro-

duced in 1935, monthly benefits were provided for workers

only, not for their families. Social Security Act of Au-

gust 14, 1935, ch. 531, $202, 49 Stat. 623. In 1939, the

Social Security Act was amended to provide family cover-

age; this coverage was expressly limited to wives, widows,

children and dependent parents. Social Security Amend-

ments of August 10, 1939, ch. 666, §§201, 202, 53 Stat. 1362-

66. To avoid detailed investigations into family financial

relationships, no dependency-in-fact test was imposed with

respect to wife, widow or minor child. See Hoskins &

Bixby, Social Security Administration Research Report

No. 42, Women and Social Security: Law and Policy in

Five Countries 77 (1973); Note, 49 Ind. L. J. 181, 185

(1973).

In an effort to reshape the congressional construct, ap-

pellant asserts that in 1939, Congress presumed a married

woman’s “social welfare need,” not her “dependency.”

Brief for the Appellant at 18, 22 n.11, 23, 36. Again, this

is revisionist interprctstion. As the legislative history re-

flects, and as the Social Security Administration candidly

publicized: “in setting up the insurance program, [Con-

gress] considered first the traditional family, in which the

man worked to support his wife and children.” Riches,

Women Workers and Their Dependents Under the 1950

Amendments, 14 Soc. Sec. Bull. 9 (1951).

** Indeed, had Congress focused on a woman’s “social welfare

need” rather than on her dependence upon a man, the class

divorced women might have attracted first attention. Many of

Extensive amendments to the Social Security Act were

made in 1950. One of the alterations™ was viewed as estab-

lishing parity between married male and female workers.

As a program analyst for the Social Security Auminis‘ra-

tion explained:

The earlier [1939] legislation made no provision for

benefits to a husband or widower on a woman’s wage

The 1950 amendments have resolved this inequity.

Riches, supra, 14 Soc. Sec. Bull. at 11. The “resolution”

effected in 1950 remain _ force. It continued benefits for

wives and widows as of right without regard to depen-

dency, and added benefits for husbands and widowers, but

hese women are needy, but very few of them are supported by

their former Lantenda and none of them qualify for a forced

share in the former husband's estate. See Jacobson, —

Marriage and Divorce 126 (1959) (in 1922, the last year the

Census Bureau kept national alimony data, alimony was de«

in only 15% of a nationwide sample of decrees) ; Bryant, rw

& Powell, American Women in International Women’s Year 4l,

(Market Opinion Research 1975) (recent, nationally copeemu

tive survey revealed that only 14% of _divoreed or separated - :

ers had been awarded alimony or maintenance payments anc ws

than half of those with awards received payments ly) ;

Citizens’ Advisory Council on the Status of Women, Womm in

1971, Appendix C (1972); Nagel & Weitzman, Women as ro

gants, 23 Ilastings LJ. 171, 187-92 (1971) (most divorced an

separated wives are awarded no or scant alimony). Yet rg

provided no coverage at all for divorced wives until 196%. om. -

97, §308, 79 Stat. 375, amending 42 U.S.C. §§402, 415 (eligibility

conditioned on marriage to insured for at least 20 7ears and —

faction of the one-half support test); P.L. 92-693, 86 Stat. L

(1972) (eliminating one-half support test).

2° Social Security Amendments of August 28, 1950, ch. 809,

§101(a), 64 Stat. 483, 485 (codified at 42 U.S.C. §§402(e), (f)).

conditioned those benefits upon satisfaction of a stringent

dependency test. To qualify for benefits on a woman’s

wage record, a husband or widower must have received at

least one-half of his individual support from his wife. To

determine husband’s or widower’s eligibility, total family

income available for the couple’s expenses is computed;

half that amount is deemed husband’s total support; half

again is deducted, yielding a qualifying husband’s ceiling

contribution to the unit’s support. In other words, wife

must have paid at least three-fourths of the total family

expenses for husband to qualify under her account. See

Clark v. Celebrezze, 230 F. Supp. 798 (D. Mass. 1964), aff'd,

344 F.2d 479 (1st Cir. 1965) (where wife contributed $3624

to the couple’s expenses, and husband $1344, husband does

not qualify for benefits under wife’s account).”

Legislative materials produced at the time of the 1950

amendments do not advert to the differential created by the

one-way support test. The sole reference to the test made

by the Senate drafters concerned the Administrator’s regu-

latory authority to insure appropriate treatment of “income

attributable to a spouse under community property laws.”

S. Rep. No. 1669, 81st Cong., 2d Sess. 63 (1950). However,

the congressional perspective is not obscure. As a recent

comment puts it:

Congress has consistently used the “traditional”

family structure (male/breadwinner and female/depen-

** No credit is given for the support contributed by services in

the home. See 1975 Handbook on Women Workers 174-75 (Tables

75 and 76) (For two-earner couples in the 40-54 age range, the

average annual dollar value of time contributed by the working

wife in household services is $3200, and by the working husband,

$600. For the 55 and over population, wife’s contribution remains

$3200, husband's increases to $900.).

dent) as the model for the development of family

benefits. Consequently, it is not surprising that many

provisions directly diseriminate against families which

include a female in covered employment.

Randolph, Sex Discrimination in the Family Benefits Sec-

tion of the Social Security Act, 8 Clearinghouse Review

535 (December 1974). Describing the legislative myopia

more dramatically, (then) Congresswoman Martha Grif-

fiths said:

The income security programs of this nation were

designed for a land of male and female stereotypes,

a land where all men were breadwinners and all women

were wives or widows; where men provided necessary

income for their families but women did not; in other

words, where all of the men supported all of the

women. This view of the world never matched reality,

but today it is further than ever from the truth.

Griffiths, Sex Discrimination in Income Security Programs,

49 Notre Dame Lawyer 534 (1974). Indeed, even as to chil-

dren’s benefits, the stereotype controlled. Initially, a

mother’s work provided benefits for her child only if

mother was the child’s sole supporter and father was not

living with the child. Social Security Amendments of Au-

gust 10, 1939, ch. 666, §202(c), 53 Stat. 1364. Partial altera-

tion was effected in 1950. Social Security Amendments of

August 28, 1950, ch. 809, §101(a), 64 Stat. 484. However,

full equalization of benefits available to the children of

working women was not accomplished until 1967. Social

Security Amendments of January 2, 1968, P.L. No. 90-248,

§151, 81 Stat. 860, amending 42 U.S.C. §402(d).

In short, if any “factual basis” informed the congres-

sional judgment in 1950, it is nowhere revealed in the legis-

lative history of that year’s social security amendments.

Nor could it be. For the arrogant legislative presumption

that women depend on men, but not vice versa” is today

“further than ever from the truth,” and in fact “never

matched reality.” Women’s work force participation con-

tinues to increase, but women have participated in the labor

market in substantial numbers, constituting over 25% of

all workers, throughout the period in question. See 1975

Handbook on Women Workers 11. Further, the facts as

to participation rates by age contradict appellant’s specu-

lation (Brief in Opposition at 4 n.3) regarding the char-

acter of “the present generation of retirement-age women.”

For the sharp jump in work force participation rates be-

tween 1940 and 1960 cecurred among women 45 to 54, the

very women now at retirement age. See 1975 Handbook

on Women Workers 12.

In stark contrast to the familiar assumption, the dual-

earner family represents and is destined to remain “the

typical American pattern.” Bell, Working Wives and

Family Income, in Economic Independence for Women

** Among ramifications of this facile presumption are the credit

problems faced by women to which ease has recently re-

sponded. See Equal Credit eg igre! Act of 1975, P.L. 93-495,

88 Stat. 1521, as amended by P.L. 94-239, 94th Cong., H.R. 6516

(March = td yo" Sex Discrimination in Credit: The

of Economic ency, in Economic Independence for

Women 263 (Chapman ed. 1976).

Here too, it bears emphasis that the “social welfare need” label

to cover Congress’ independent male/dependent female assumption

is appellant’s very recent invention. Compare Brief for the Ap-

pellant at 24, 28, with Brief for the Appeliees at 8-10 Frontiero

v. Richardson, — bay classification “obviously reflects the con-

gressional judgmen most wives are dependent on thei

bands”), and Note, 49 Ind. L.J. 181, 185-86 (1973). wis

239, 254, 258 (Chapman ed. 1976). By 1973, in more than

half the nation’s husband-wife families, the wife had earn-

ings. 1975 Handbook on Women Workers 53-54, 138. Over

42% of gainfully-employed married women living with their

husbands worked year round at full-time jobs. Jd. at 53-54.

These women supplied approximately two-fifths of family

income. Jd. at 5, 139. Moreover, the median proportion of

family income contributed by working wives in 1970, in-

cluding wives who worked part-time, was 27%. This overall

relative contribution of working wives to family income,

27%,” was about the same in 1970 as it had been for at

least a decade. U.S. Department of Labor, Bureau of Labor

Statistics, Monthly Labor Review 8 (April 1972). The

27% contribution, let alone the full-time working wife’s

39% contribution, would exclude a determination of depen-

dency-in-fact under the §402 self-support test. See Clark

v. Celebrezzee, supra; cf. Frontiero, supra, 411 U.S. at 689.

In Taylor v. Louisiana, supra, 419 \.S. at 535 n.17, this

Court noted that by “October 1974, 54.2% of all women

between 18 and 64 years of age were in the labor force.”

The situation acknowledged by the Court in Taylor is the

result of steady growth, not precipitous change. If the

notion that it is natural for man to be breadwinner, women

to be dependent, had been less deeply ingrained, Congress

might have noticed in 1939 and in 1950 that gainfully-

employed women constituted a significant part of the work

force. The reality concerning the employment of women

16 years of age and over, as presented for the relevant

**If support contributed by services in the home counted in

the computation, the working wife’s percentage would be consider-

ably higher. See note 26 supra.

period in 1975 Handbook on Ww

2),” is set out below: omen Workers 11 (Table

WomEN IN THE LaBor Force, SeLectep Years, 1940-74

(Women 16 years of age and over)

Number As percent As percent

nia (in of all of woman

thousands) workers population

ocsaeneceeapnansnasdesenstentseesesds 35,165 39.3 45.0

ema 31,293 38.) 43.2

Midsixties (April ERS 25,831 35.0 38.8

Start of the sixties (April 1960) 22.985 33.3 37.4

Midfifties (April 1955) ... 19,987 31.2 34.8

Korean War (April 1953) 19,116 30.6 34.0

Pre-Korean War (April 1950) .. 17,882 929) 33.0

Post-World War II ( Apri] 1947) 16,150 276 3099

World War II (April 1945)... 19,290 364 38.1

Pre-World War IT (March 1940) 13,783 25.4 28.9

* Civilian labor force.

Source: U.S Department o

S. f Labor. Bureau of isti

Deployment and Earnings, May 1960, 1965, 00, an eee

= " ed of amen, Bureau of the Census : Annual Re :

le r Force, 1940-55. Social Svience Research C i

ree in the United States, 1590-1960.” —

** Since the table include: fem

2 s females in the 16-18

» Bip d attend school full-time, as well as aiieiond ew

pnt ag op pe are considerably lower than they would be if =

er and over 64 were excluded from the count ——

ge range, many

Appellant apparently concedes the substance of women’s

current participation in the labor force, but hypothesizes

that today’s retirement-age women fit the stereotype: their

men were breadwinners; they are wives and widows. See

Brief in Opposition at 4. In fact, the working lives of

Hannah Goldfarb, Shirley SiJhowitz, Edna Coffin, Bette

Jablon and Mildred Abbott indicate a pattern documented

for their generation, “the present generation of retirement-

age women” :

In the 1940’s the [labor force participation] rates

for women 35 and over (excluding those 60 and over)

began climbing sharply and steadily as ever-growing

proportions of mothers cf school-age children took jobs.

By 1950, although the young, mostly single, women

still had the highest rates, the rates for women 35

and older had moved much closer. Many of these

women either continued to work after World War II

or returned later. By 1960 the rate for women 45 to

54 (50 per cent) had risen to such an extent that it was

noticeably higher than the proportion for 20- to 24-

year-old women (45 per cent), and the proportion

among women 35 to 44 (44 per cent) was only slightly

below that of the women in their early twenties.

1975 Handbook on Women Workers 12, tabulating the facts

as follow (Table 3):

—_——- - -- -—- --

%© See text at note 11 supra.

Lasor Force Participation Rates oF WoMEN, BY AGE,

SeLectep Years, 1940-74°

Age 1974 1960 1950 1940

35 to 44 years .... 54.6 44.3 (38.2)** (29.4)

45 to 54 years... 54.9 49.5 (37.1) (24.5)

55 to 64 years... 41.7 (37.4) (27.6) (18.0)

* Data are for civilian noninstitutional oe a

1940 and in April of other years. ee b Bam

** Parentheses indicate women now at or past retirement age

Source: U.S. Department of Labor, Burea isti

, u of Labor Sta :

ma fag and Earnings, May 1974 and Special ae team

port No. 14; U.S. Department of Commerce, Bureau of the

ng = + ae Population Reports, P-57, No. 94 and P-50,

See also 1975 Manpower Report of the President, Table 1

at 57, Labor Force Participation Rates of Women by Age

Group, Selected Years 1950 to 1973 and Projected 1980 and

1990; U.S. Department of Labor, Bureau of Labor Statis-

ties, Monthly Labor Review 21 (November 1975) (report-

ing that in 1974, 54% of women 55-59 were gainfully em-

ployed, 75.4% of them at full-time jobs).

In sum, the 4402 differential is characteristic of laws un-

concerned with women workers, their status and security

and the reality of family economic interdependence. It

indicates the legislators’ traditional idea about the unim-

portance of women’s earnings and the significance of men’s.

The differential diminishes the value of women’s contribu-

tions to family income and impacts with particular severity

on two-earner couples at low income levels. Approximately

one out of four families with incomes below $5,000 relies

on the wife’s earnings for at least half of the total family

income. See U. 8. Department of Labor, Bureau of Labor

Statistics, Special Labor Force Report 130, Marital and

Family Characteristics of Workers, Table U, p. A-24

(March 1970) (based on 1969 family income figures), dis-

cussed in Bell, supra, Economic Independence for Women.

at 240-43. In these families, the unit is surely “dependent”

on income produced by the wife. Yet her 50-74.9% con-

tribution to the unit’s support through employment covered

under the Federal Insurance Contributions Act secures no

old-age or survivors’ benefits for her spouse. See Clark v.

Celebrezzee, supra,

No legitimate government interest is served by a social

insurance scheme that favors and rewards men’s employ-

ment more than women’s. Statutory gender lines so drawn

underestimate women’s contributions to family support,"

overestimate men’s, and place an official imprimatur on

categorization of women as second-class workers.

C. Exclusion of the spouse of a working woman from social

insurance benefits «ccorded the spouse of a working man

does not operate to remedy the effects of past economic

discrimination against women.

In Schlesinger v. Ballard, 419 U.S. 498 (1975), and Kahn

v. Shevin, 416 U.S. 351 (1974), this Court upheld gender

lines regarded as operating solely to compensate women

for past and present economic disadvantages. Ballard and

Kahn were perceived as cases in which some women were

helped, and no women were harmed by the classification in

question. By contrast, even on the dubious assumption

"Of. note 26 supra.

* Further, the Kahn decision is d narrowly tied

that Congress intended the §402 differential to help women

as individuals (rather than as appendages of men), the

gender line sub judice plainly operates to “heap on” women

wage earners additional economic disadvantages. See Fron-

ttero v. Richardson, supra, 411 U.S. at 689 n.22; Jadlon

v. Secretary of Health, Education, and Welfare, swpra, 399

F. Supp. at 128-30.

In assessing classifications based on “gender as such,” ™

this Court no longer accepts at face value “recitation of a

benign, compensatory purpose” for legislation that ranks

women as men’s dependents, Wiesenfeld, supra, 420 U.S.

at 648; see Taylor v. Louisiana, 419 U.S. 522 (1975) ; Stan-

count, women as men’s subordinates. Far from alleviating

discrimination in the economic sphere, the 4402 3:1 marital

unit support test reflects attitudes and perpetuates prac-

tem 6 ep py 416 U.S. at 355, Of. Belle

Boraas, 416 U.8. 1 (1974) ; Labine v. Vincent, 401 U.S, $82 (1971)

And the dis-

ted the tangled problem military

cytem fraaght with dicrimination against ‘rome, ‘no. challenge

only a 20-year retirement-motivated

claim by a “m (enlistee-turned-officer) with an

cratic case. See Da Ginsburg & Kay, Gex-Dened Disehelen

tion, 1975 t at 14 (West Pub. Co.). Nor did Ballard

involve present here: legislative reluctance to

count” a female worker as fully as a male worker may reflect the

tices responsible for that discrimination. See generally

Chafe, Looking Backward in Order to Look Forward:

Women, Work and Social Values in America, in American

Assembly, Women and the American Economy 6 (Kreps

ed, 1976). Significantly, when Congress genuinely deter-

mined to remedy economic discrimination against women,

and focused directly on “firmly entrenched practices” in-

hospitable to women’s claims to equal opportunity and

equal remuneration in the job market (cf. 416 U.S. at 353),

it flatly rejected the stereotype that underlies §§402(0) (1)

principle, Congress declared the female worker, her spouse

and family entitled to the same benefits as the male worrme,

his spouse and family. Support tests for the woman's

spouse were eliminated, along with all other gender-based

differences in benefit terms and conditions. See, €-9+» 5

U.S.C. §7152 and kindred measures cited at pp. 51-58 infra.

Nor does Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.),

cert. denied, 398 U.S. 982 (1968),"* shield from close review

the invidious distinction drawn in §402. Gruenwald in-

volved a differential specifically tied to past discrimination

female wage earners experienced in the labor market: de-

pressed wages and early retirement policies applied by

employers to women but not to men. Without the more

favorable calculation formula, a formula applied to amounts

in fact earned by women, past wage and job placement dis-

crimination would have been aggravated by projection into

, . 1299 (B.D.

* Followed in Kohr v. Weinberger, 378 F Ga) ~

judgment vacated, 422 18. 1050

Seerctory ‘0 a Geuesin, coe bhata S36 . Bupp. 443

D. 4 Lewis v. Cohen, —— F. Supp. .

n Marah 5 1978) [44 U.S8.L.W. 2457}.

the working woman's retirement years. Thus the Gruen-

wald differential operated to alleviate past discrimination

against wage-earning women without disadvantaging any

member of that class.“ By contrast, a law denying to a

female wage earner’s spouse or family benefits available to

& male wage earner’s spouse or family cannot be ration-

alized by reference to wages paid to gainfully-employed

women and does nothing to rectify past wage discrimina-

tion against them. Instead, congressional attention to the

wives of insured wage earners is expressed in a scheme

that impacts adversely on wives who are insured wage

earners themselves. Far from assisting women toward

equal status in economic endeavor, the classification forti-

fies the assumption, harmful to women, that labor for pay

with attendant benefits is primarily the prerogative of men.

See Matthews, Women Should Have Equal Rights With

Men, 12 A.B.A.J. 117 (1926); Note, 89 Harv. L. Rev. 95

(1975). :

In providing secondary benefits under a male wage

earner’s account as of right without regard to the depen-

dency of his spouse, while imposing a 3:1 marital unit

support test for secondary benefits under a female wage

earner’s account, Congress may well have been guided by

the notion that “men are more likely than women to be

the primary suporters of their spouses,” a notion “not en-

tirely without empirical support.” But as the Court ex-

plained in Wiesenfeld, supra, 420 U.S. at 645:

“See Kohr v. Weinberger, su 378 F. Supp. at 1302 n.5.

Congress evidently e | atadinee A differential as a transi-

tion measure. In 1972, it extended to men the more favorable cal-

culation ev reserved to women. Act of October 30, 1972,

§104, P.L. 92-608, 86 Stat. 1940.

[SJuch a gender-based generalization cannot suffice to

justify the denigration of the efforts of women who

do work and whose earnings contribute significantly to

their families’ support.

In sum, three times in as many years, this Court has

been invited by the Government to shield as “benign” a

classification that instructs the gainfully-employed female:

your earnings, solely on the basis of your sex, are less valu-

able to your spouse and family than the earnings of a simi-

larly situated male. The Court declined that invitation to

dissemble in Frontiero and Wiesenfeld. On this third oc-

casion, it is time to strike the batter out.

D. Administrative convenience does not justify

gross categorisation by gender.

In Frontiero, supra, 411 U.S. at 689-90, this Court laid

to rest the notion that “administrative convenience” could

serve as a cover for legislative resort to sex stereotyping

as a basis for line drawing. See also Taylor v. Louisiana,

419 U.S. 522 (1975) (discarding administratively convenient

assumption that woman’s central place is at home) ; Mathews

v. Lacas, —— U.S. —— (June 29, 1976) (Slip Opinion at

17). Here, as in Frontiero, the Government “offers no

concrete evidence” that presuming women dependent “in

fact saves the Government any money.” 411 U.S. at

689. For it is beyond debate that many millions of married

women earn enough to cover at least half of their own liv-

ing expenses. See p. 30 supra; Brief for the Appellant.

at 34 (the median average contribution of the wife to total

family income exceeds the 25% limit required for qualifica-

tion under the one-half support test). Thus a dependency

test applicable to men but not to women cannot be justified

a8 & reasonable, economy-minded substitute for sex-neutral,

functional classification.”

Nor does characterization of Leon Goldfarb’s complaint

as a claim for “a windfall” (Brief for the Appellant at 8,

38) avoid collision with constitutional principle.” Male

wage earners’ accounts attract benefits for non-dependent

wives. Similarly situated female wage earners deserve no

"Women’s receipt of ap roximately 54% of social security

permeate, hardly evidence of discrimination against male workers,

y enue to women’s representation in the nation’s

tion. Women 65 and over are 12.1% of the female popula-

tion; mon 65 and over are only 8.8% of male <9 See

U.S. De ent of Commerce, Bureau of the Current

Popula Special Studies, Series P-23 No. 58: A Sta-

tistical P. t of Women in the United States 1, 2, 5

1-2), 7 (April 1976), Of course, a man who enjoys long life would

receive benefits based on his individual situation and would not

be denied benefits on the basis of a gross der classification.

Similarly, as low paid workers, in common with men whose earn.

ings are low, many women are aided by the ted formula for

benefit ents, i.¢., the highest wn of benefits is paid

for the $110 of monthly earn 42 U.S.C. §415. This for-

mula benefits individuals with low comes, many of whom are

women, but it does not discriminate against men.

"The “windfall” argument pressed by the Government in

Frontiero with to ’ benefits recipient Joseph

udgment, and htened directives of his own and other

iaeal cyanea coprien lee adercaind ton

‘dency test for efits, identical to the one in the case

at bar, would be The gross der ae would

render the test invalid. See pp. infra. Moreover, a more

subtle, facially-neutral device should fare ne better. As the Equal

Employment Opportunity Commission has publicized, benefits ac-

co an em oyee’s spouse, when tied to proof of depend

‘dierimingtorly affect the rights of women employees.” See 36

less protection for their spouses. See Jablon v. Secretary

of Health, Education, and Welfare, supra, 399 F’. Supp. at

180." Denial of benefits under a female wage earner’s ac-

count, but automatic provision of them under a male wage

earner’s account, underscores for the woman her second-

class status as a gainfully-employed individual. This re-

ality is not disguised by telling her that “windfalls” are

reserved for those who claim under the account of a man.”

E. Budgetary considerations do not justify resort to an

otherwise invidious gender classification.

In Frontiero and Wiesenfeld this Court declared invidi-

ously discriminatory congressional action that cast the

weight of the law on the side of “the role-typing society

has long imposed.” Stanton v. Stanton, supra, 421 U.S.

at 15. The military fringe benefits arrangement in Fron-

tiero and the mother’s benefit in Wiesenfeld reflected twin

congressional judgments: (1) traditional family relation-

ships, anchoring wife to the home, should be favored and

encouraged; (2) incentives, favors and encouragement

available to the married man as income earner need not be

accorded the married woman as income earner. These paired

* Of. Motion to Affirm at 2a, Mathews v. Jab No. 75-739

and Mathews v. Cofim, No, 75-791 (female individual

Edna Coffin and spouse Edgar Coffin were approximately equal

earners, her public employees’ pension ber »fits were slightly higher

than his).

* Of. Van Alstyne, The Demise of the Rights-Pri Distine-

tion in Constitutional ’.aw, 81 Harv. L. Rev. vag b> 7 (1968).

With respect to low-inc...e earners, see Clark v. brezze, supra,

and pp. 33-34 supra, the ~indfall” characterization is particularly

dubious. Moreover, to ‘\» extent that the current structure of

social security provides a “windfall” for federal employees, the

source of the “windfall” is wholly unrelated to husband’s and

widower’s benefits. See 1978 House Hearings, Financing the Social

Security System 150, 422-23, 539.

judgments, signalled by resort to gender rather than func-

tional classification, were assessed as “invidious.” They

retain that character here,“ for surely the Court’s nrece-

dent makes it clear that neither administrative convenience

nor fiscal policy considerations can justify invidious gender

discrimination. Cf. Shapiro v. Thompson, 394 U.S. 618,

533 (1969); Memorial Hospital v. Maricopa County,

415 U.S. 250 (1974); Graham v. Richardson, 403 U.S. 365

(1971) ; New Jersey Welfare Rights Organization v. Cahill,

411 U.S. 619 (1973); United States Dep’t of Agriculture

v. Moreno, 413 U.S. 528 (1978); Schlesinger v. Ballard,

419 US. 498, 503 (1975) (“administrative or fiscal policy

considerations” insufficient reason for gender line) ; Sosna

v. Iowa, 419 U.S. 393, 406 (1975) (budgetary or record-

keeping considerations or administrative convenience in-

sufficient to justify durational residency requirement).

In Shapiro v. Thompson, supra, the Court confronted a

determination by Congress and at least 40 states that public

money should not be spent on welfare aid to new residents.

Appellant’s brief in that case cited the legislative history

of the one-year residence requirement, and identified as the

principal reason for the requirement the legislature’s desire

to limit welfare costs. Brief for Appellant at 8-10, Shapiro

v. Thompson, supra. This Court’s determination: the Con- -

stitution requires payment of benefits to the class deliber-

ately excluded by the legislature. Accord, Memorial Hos-

pital v. Maricopa County, swpra. Significantly, although

“See Testimony of Harvard economist Martin Feldstein, 1975

House H Financing the Social Securi ystem

(“[T]he im of taxes without co a toa a

duces the incentive of wives to work and thus disinishes their

labor force participation and their average h f

the social om this rage hours of work. As

problem of it urity ia, treatment becomes a

the Court in Shapiro closely scrutinized the classification,

it indicated that the one-year residence requirement was

vulnerable even under the traditional, more lenient “ra-

tional basis” standard of equal protection review. 394 U.S.

at 638.

In Graham v. Richardson, supra, state legislative deter-

minations excluding aliens from public assistance programs

were overturned by the Court; public funding had to be

enlarged, despite the contrary command of the state legis-

lature, to encompass persons entitled to equal protection

under the nation’s highest law.

In New Jersey Welfare Rights Organization v. Cahill,

supra, this Court struck down the “ceremonial marriage”

limitation in New Jersey’s program for assistance to fami-

lies of the working poor, thereby substantially enlarging

the beneficiary class and the toll on the state fisc. It bears

emphasis that the case at bar, unlike New Jersey Welfare

Rights Organization, presents no question of federal defer-

ence due state policies on issues of local concern. And,

plainly, leeway for legislative line drawing in the con-

tributory Federal social security program is no broader

than leeway for wholly state financed and operated

public assistance programs. Further, no “fundamental

right” or “suspect” criterion was identified by this

Court in New Jersey Welfare’Rights Organization when

it summarily reversed ihe decision below (349 F.

Supp. 491 (1972)) and, per curiam, declared the “ceremo-

nial marriage” limitation on aid to the working poor imper-

missible. Accord, United States Dep't of Agriculture v.

Moreno, supra (limiting food stamp program to households

in which members are related to one another violates equal

protection); Viandis v. Kline, 412 U.S. 441 (1973) (in-

state tuition); Demiragh v. DeVos, 476 F.2d 403 (2d Cir.

1973) (welfare benefits); de Castro v. Weinberger, 408 F.

Supp. 23 (N.D. Ill. 1975) (divorced wife’s child-in-care

*ocial security benefit); Vaccarella v. Fusari, 365 F. Supp.

1164 (D. Conn. 1973) (augmented unemployment benefits for

child in worker’s care) ; Bowen v. Hackett, 361 F. Supp. 854

(D.R.I. 1973) (state unemployment and disability insurance

benefits) ; Chatman v. Barnes, 357 F. Supp. 9 (N.D. Okla.

1973) (state social insurance disability benefits) ; Miller v.

Laird, 349 F. Supp. 1034 (D.D.C. 1972) (medical care for

service members’ children born out of wedlock) (ail deci-

sions, like Frontiero and Wiesenfeld, identifying uncon-

stitutional exclusions from government benefits without

labelling the right asserted “fundamental” or the legislative

criterion “suspect”).

Moreover, the cost of eliminating the one-way depen-

dency test will be comparatively low at the outset“ and

should diminish increasingly with the passage of time as we

progress toward the recognized goal of universal social se-

Print, 94th Cong., Ist 20 (1975); Testimony of former

si er of Bocial Security Robert 0 H

Reonemio Protleme of Weasn’ Deine te J4k Bon te

mittee, United States Congress, Part Two, July 24-30, 1973, at

mB conttuaty ieaiiie tates Nerthaipetion | z

the impact of further af the winanvened is eotier

os for

;

widvvers sould bs tthe lanrelas to eotiteiinn

? in

0.05% on employers and 008% on cngligdaat.

curity coverage of wage earners.” Shrinkage of the non-

sikh inadatiinie Cait ta tide Ov tenalaab eaten?

In 1935, when the Old Age and Survivors Insurance pro-

gram was inaugurated, approximately 50% of Americans

gainfully employed were covered; today, over 90% are

covered by the legislation. Compare S. Rep. No. 628, 74th

Cong., Ist Sess. (1935), with Railroad Retirement System

Report, H.R. Doc. No. 350, 92d Cong., 2d Sess. 107 (1972).

Exclusions still remaining are few, and even fewer may be

expected to persist, for coverage of all gainfully-employed

individuals remains a primary objective.

Principal noncovered groups are career employees of the

railroads and most employees of the federal government.

State and local government employees constitute the only

other noncovered group of any magnitude. But today,

about two-thirds of state and local government employees

are insured individuals under social security. 1975 House

Hearings, Financing the Social Security System 423. In-

clusion of railroad workers“ and federal employees“ con-

tinues to be urged as a rational measure toward which

movement should be “rapid.”

42 See 1975 House Hearings, Financing the Social Security

System 150, 362, 422-23.

**For earlier statement of the universal coverage goal, see

Sissesmendittienn for Social Security Legislation, Report of the

Advisory Council on Social Security to the Senate Finance Com-

mittee, 8. Doc. No. 208, 80th Cong., 2d Sess. 6 (1949).

“ Railroad Retirement System Report, H.R. Doc. No. 350, 92d

Cong., 2d Sess. (1972).

150, 422-23.

Further, the overall cost of benefits to spouses is inac-

curately projected by appellant’s one-eyed estimate.* Off-

setting coverage for the female wage earner’s spouse is the

constantly increasing extent to which wives and widows

earn benefits under their own accounts. See 1975 House

Hearings, Financing the Social Security System 80, 317-18

(female labor force participation rates predicted to in-

crease faster then previously projected; currently, 1.9 mil-

lion wives of retired workers, 42% of all such wives now

on the rolls, receive primary benefits based on their own

earnings); cf. Hearings on H.R. 6635, Social Security

Amendments of 1939, before the House Committee on Ways

and Means, 76th Cong., 1st Sess. 59 (1939).

“In Wiesenfeld, supra, appellant’s estimate for

explicit gender lines in the Social Security Act, presented in an

davit submitted to the district court, was some “$300 million”

($125 million for the widower’s benefit here in question). Brief

for the Appellant at 22 and Appendix at 15, Weinberger v. Wiesen-

feld. This time round, appellant has not felt constrained by his

presentation in the court below. In lieu of reference to material

in the record, appellant tenders in his brief to this Court new

and escalated figures (both as to the number of persons affected

and the dollar amount), and a “methodology” appendix. Brief

for the Appellant at 37. It is surely questionable whether this

High Court is the proper forum for initial introduction of ap-

pellant’s “methodology” (Brief for the Appellant at 1A-6A)

and augmented figures (Brief for the Appellant at 3S), concededly

based in substantial part on “a small sample of cases” (4A),

“sketchy data,” and “very rough” estimates (6A). Further, ap-

Phe pidp anes no attempt to place his escalated figure in context.

year

husbands, widowers and disabled wi is about

ooo at te (0.67%) ot cael endeh seunty aides See

1976 Annual Report of the Board of Trustees of the Federal Old-

Age and Survivors Insurance and Disability Insurance Trust

Funds at 2 (income of the old-age, survivors and disability insur-

1975).

LSE SS a SS SE

Beyond question, strains on the social security program

are a matter of grave concern. But those strains are un-

related to the gender pigeonholing here at issue. They are

caused by current and projected demographic shifts in the

nation’s population—later entrance of young people into

the work force, increased longevity and lower birth rates.

These shifts mean (1) fewer working years and longer

retirements for individuals insured under social security,

and (2) a steady decline in the ratio of workers paying

Federal Insurance Contributions Act taxes to social se-

curity beneficiaries. 1975 House Hearings, Financing the

Social Security System 5, 7, 11, 25, 26, 66, 392, 436, 441,

600, 654, 658, 670. Senior citizens constitute a sizeable and

steadily increasing portion of the nation’s population. In

1930 the United States population included 9.7 people age

35 and over for every 100 people of working age (20-64

years); by 1973, the figures had changed to 18.6 people 65

and over for every 100 of working age. 1975 House Hear-

ings, Financing the Social Security System 600. This

change will undoubtedly require corresponding alteration

in the nation’s old-age and survivors insurance program.

Congress has on its agenda adjustments needed to allevi-

ate immediate strains*’ and to tailor the social security

system to demographic projections for the decades ahead.“

‘‘ High unemployment is a principal contributor to immediate

strains. The Social Security Administration has reported that

reduction of unemployment to 5% would result in a $44.2 bil-

lion addition to. the social security trust funds between fiscal

ar 1975 and 198] rather than.any depletion. 122 Cong. Rec.

1666 (daily ed. March 4, 1976).

«* Social Security Commissioner James B. Cardwell has empha-

sized the absence of urgency in revising social security. He re-

ported to Congress, the system “has a contingency reserve that is

clearly adequate for short term and sudden change.” 1975 House

Hearings, Financing the Social Security System 5, 7, 9, 11.

But no participant in the debate over revision or restruc-

ture of the social security system has advocated retention

of gender classifications as a rational or realistic means to

help hold the line, even for the shortest term. Far from

viewing the “imperfection” of the current arrangement as

“inevitable” (Brief for the Appellant at 38), and in stark

contras* to appellant’s charge that the court below “en-

larged” the imperfection, legislative recommendations rele-

vant to this issue are in notable accord: any benefit avail-

able to 4 male insured individual’s spouse should be made

available, on the same basis, to a female insured individual’s

spouse. See note 13 supra and note 65 infra.

In sum, overt gender classifications ining i

remaining in the

Social Security Act are invidious. Rational fiscal policy

considerations provide no prop for them.

II.

Employment-related benefits distributed by govern-

ment must be allocated with an even hand and without

resort to classification based on gender per se.

A. Decisions of this Court and lower federal courts establish

that classification based on gender per se is impermissible

in employment-related regulation.

In Frontiero v. Richardson, supra, this Court held that

gender-based discrimination in the allocation of fringe

benefits to married members of the uniformed services vio-

lated the Constitution’s guarantee of equal protection. The

Frontiero judgment struck down a support test for male

spouses almost identical to the one imposed by 42 U.S.C.

$$402(¢)(1)(C) and (f)(1)(D). Two years later, in Wein-

Ee 8 ee EEE

berger v. Wiesenfeld, supra, the Court declared surviving

family units composed of widower and child entitled to

the same social security benefits as those provided by stat-

ute for units composed of widow and child. Wiesenfeld and

Frontiero concerned, as this case does, woman’s status and

associated benefits when she participates in economic ac-

tivity outside the home. As a worker, she has been assigned

an inferior place, often with the aid of laws purportedly

intended for her protection. As Justice Brennan com-

mented in Frontiero (411 U.S. at 684):

There can be no donbt that our Nation has had a

long and unfortunate history of sex discrimination.

Traditionally, such discrimination was rationalized by

an attitude of “romantic paternalism” which, in prac-

tical effect, put women not on a pedestal, but in a cage.

See also Stanton v. Stanton, supra, 421'U.8. at 15; Taylor

v. Louisiana, supra; Mathews v. Lucas, —— U.S. ——

(June 29, 1976) (Slip Opinion at 10, 17).

Spurred by a revived feminist movement® that has di-

rected principal attention to employment-related inequities,

legislatures and courts are responding with increased sensi-

tivity to generators of a separate and unequal place for

women in the labor force. As a perceptive male jurist

observed :

One realizes with a shock what so many women now

proclaim: Old accepted rules and customs often dis-

criminate against women in ways that have long been

taken for granted or have gone unnoticed.

*” See sgality Chet, The Amero Ene 1972) ; Janeway,

Man's World, Woman's Place: A Study in ial

1971); Chafe, Looking Backward in Order to Look :

(Women! Work and Social Values in America, in American Assem-

bly, Women and the American Economy 6 (Kreps ed. 1976).

Green v. Waterford Board of Education, 478 F.2d 629, 634

(2d Cir. 1973). To assure meaningful equal protection of

the laws to women, courts have begun to undertake careful

analysis of gender-based legislature classifications, particu-

larly gender lines drawn in an employment-related setting.

See, ¢.9., Wood v. Mills, 528 F.2d $21 (4th Cir, 1975) (gen-

der-based wage differential for male and female jailers

violates equal protection); White v. Fleming, 522 F.2d 730

(7th Cir. 1975) (ordinance may not place special restric-

tions on female tavern employees) ; Andrews v. Drew Muni-

cipal Separate School District, 507 F.2d 611 (5th Cir.),

cert, dismissed as improvidently granted, 44 U.S.L.W. 4627

(May 3, 1976) (school board’s refusal to employ mothers of

children born out of wedlock held unconstitutional) ; Eslin-

ger v. Thomas, 476 F.2d 225 (4th Cir. 1978) (equal pro-

tection requires that young women be permitted to serve

as pages in South Carolina Senate under the same terms

and conditions as young men); Bowen v. Hackett, 361 F.

Supp. 854 (D.R.I. 1978) (dependent child allowance must

be furnished disabled and unemployed men and women on

the same basis) ; Stevenson v. Castles, Civ. No. 7452 (D.C.Z.

November 15, 1974) (free tuition limited to children of

“head of household” or “principal breadwinner” employees

of the Canal Zone Government and Panama Canal Com-

pany “discriminat[es] against women in violation of the

equality guaranteed to them under the decisions of the

Supreme Court [citing Frontiero) and [Title VII of) the

Civil Rights Act [of 1964]”). See also Page v. Welfare

Comm’n, Connecticut Law Journal, February 24, 1976, p. 3

“Cf. Henslee v. Union Planters Nat'l Bank & Trust Co., 335

U.S. 595, 600 (1949) (Frankfurter, J. dissenting) (“Wisdom

too often never comes, and so one ought not to it merely

because it comes late.”’).

(Conn, Supreme Court), excerpted in 44 U.S.L.W. 2426-27

(gainfully-employed daughter’s income available for sup-

port of her indigent parent must be computed on same

basis as gainfully-employed son’s)."

In sum, the statutes before the Court in Frontiero, Wies-

enfeld and the instant case were cut from the same pattern

and convey the same message to the gainfully-employed

woman: asa labor market participant she should not ex-

pect to be counted by her government as fully as her

brother.” The plain fact is that the economic activity of .

Hannah Goldfarb netted less for the marital unit than the

efforts of an identically situated gainfully-employed male.

As the Wiesenfeld opinion indicates, it is hardly rational

to condemn a compensation scheme under the Frontiero

principle, but declare that same principle inoperative when

the government distributes employment-related social in-

surance benefits.

* For earlier indicators, see Mengelkoch v. Industrial Welfare

Comm’n, 442 F.2d 1119 (9th Cir. 1971) (maximum hours laws

applicable to women only present substantial federal constitutional

question); Sail’er Inn, Inc, v. Kirby, 5 Cal.3d 1, 485 P.2d 529

(1971) (Federal and California Constitutions, as well as Title

VII, bar exclusion of women from bartender occupation) ; Pater-

son Tavern & Grill Owners Ass'n, Inc. v. Borough of Hawthorne,

57 N.J. 180, 270 A.2d 628 (1970) (police power does not justify

exclusion of women from bartender occupation ) roe ot

Shpritzer v. Lang, 17 A.D.2d 285, 290, 234 NYS. 285

(1st Dep't 1962), af’d, 13 N.¥.2d 744, 241 N.Y.S.2d 869 (1963)

(exclusion of licewomen from promotional examination for ser-

geant would impermissibly deny constitutional rights solely be-

cause of gender); Wilson v. Hacker, 101 N.Y.8.2d 461 (Sup. Ct.

1950) (union's discrimination against female bartenders “must

be condemned as a violation of the fundamental principles of

American democracy”).

** See Bowen v. Hackett, supra; note 14 supra; Note, 89 Harv.

L. Rev. 95 (1975).

The discrimination ordered by 42 U.S.C. $§402(c)(1)(C)

and (f)(1)(D) js isreconcilable with the firm national com-

mitment to eradicate per se differentials based on an indi-

vidval’s sex in all spheres of employment. Gender as a

means to determine employment-related benefits has been

declared unlawful by Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§2000e et seq.; the Equal Pay

Act of 1963, as amended, 29 U.S.C. §206(d); Executive

Order 11246, as amended by Executive Order 11375, 3

C.F.R. 169, 42 U.S.C. §2000e note; Title [IX of the Education

Amendments of 1972, 20 U.S.C. §§1681 et seq.; and statutes

governing federal employment, ¢.g., 5 U.S.C. §7152.

Sex Discrimination Guidelines issued by the Equal Em.

ployment Opportunity Commission pursuant to Title VII,

29 C.F.R. $§1604.1-1604.10," provide:

It shall be an unlawful employment practice for an

employer to make available benefits for the wives and

families of male employees where the same benefits are

not made available for the husbands and families of

female employees; .. . 29 C.F.R. $1604.9(d).

The Guidelines, issued in 1972, are applicable to private

as well as public employment; they explicitly proscribe

aah Caen ea Boole Executive Order se a) O.F.R.

m ’

§60-20, vattioularky $£0-90.8(0)" (d).

CE EE EE

differential treatment of men and women of the precise

kind and quality here at issue. Moreover, they reflect con-

sistent administrative and judicial interpretation prior to

the time the Guidelines formally issued. For example, the

Equal Employment Opportunity Commission explained in

a 1969 widowers’ pension benefit ruling, Title VII “is in-

tended to protect individuals from the penalizing effects

of ... presumptions based on the collective characteristics

of a sexual group.” EEOC Decisions, Case No. YNY9-034,

CCH Emp. Practices Guide 16050 (June 16, 1969) (empha-

sis in original). The Commission appraised as discrimina- .

tory and detrimental to gainfully-employed women a pen-

sion plan with an automatic benefit for widows but no bene-

fit for widowers capable of self-support." For court con-

firmation of the underlying principle, see Rosen v. Public

Service Elec. & Gas Co., 477 F.2d 90 (3d Cir. 1973) (Title

VII violated by pension arrangement allowing women to

retire earlier on full pension) ;* cf. Griggs v. Duke Power

* Accord, Decision No, 70-513, CCH Emp. Practices Guide

96114 (February 4, 1970) (payment of death benefits to surviv-

ing spouses of male but not female employees ruled unlawful) ;

Decision No. 71-1100, CCH Emp. Practices Guide 96197 (Decem-

ber 31, 1970); Decision No, 70-660, CCH Emp. Practices Guide

76133 ( 24, 1970); Decision No. 70-510, CCH Emp. Prac-

tices Guide 76132 aT 1970) ; Case No. CL 7 OCH

imp. Practices Guide J 19, 1969) (all ruling wful

employer and/or union th insurance As providing for

coverage of spouses of male but not female employees).

* Accord, Chastang v. and Emrich Co., 365 F. Supp.

957 (D. Md. 1978) ( women to retire five years earlier

$6370 (June 6, 1972); Decision No. 72-0702, CCH

Practices Guide $6320 (December 27, 1971); Decision No. 71

Co., 401 U.S. 424, 436 (1971); Rosenfeld v. Southern Pacific

Co., 444 F.2d 1219 (9th Cir. 1971); Diae v. Pan American

World Airways, 442 F.2d 385 (5th Cir.), cert. denied, 404

U.S. 950 (1971); Bartmess v. Drewrys U.S.A., Inc., 444

F.2d 1186, 1189 (7th Cir.), cert. denied, 404 U.S. 989 (1971).

Similar rulings have been made by the Wage and Hour

Division of the Department of Labor, which administers the

Equal Pay Act. For example, the Division has ruled that

the Act is violated by insurance plans pursuant to which the

employer pays family coverage insurance premiums for

married male employees but pays such premiums for mar-

ried female employees only if they qualify as heads of their

families. W & H Opinion Letter No. 425, CCH Emp. Prac-

tices Guide 11208.52 (February 11, 1966).

With respect to federal employment, Congress enacted a

catch-all in December 1971, to assure that national policy

governing the private sector applies with full vigor to the

United States itself. 5 U.S.C. $7152 (P.L. 92-187, 85 Stat.

644) stipulates that all regulations granting benefits to

government employees

CCH Emp. Practices Guide 76184 (December 4, 1970); Decision

No, 70-75, CCH Emp. Practices Guide 76049 Chagas 13, 1969)

{ell ruling unlawful different optional retirement ages and bene-

for men and women).

* See also W & H Opinion Letter No, 1275, OCH Emp. Prac-

tices Guide 75178 (Jan 15, 1973) (“principal wage

4 pay te Ree gh

shall provide the same benefits for a married female

employee and her spouse and children as are provided

for a married male employee and his spouse and chil-

Further, 5 U.S.C. §7152 declares that

any provision of law providing a benefit to a male

Federal employee or to his spouse or family shall be

deemed to provide the same benefit to a female Federal

employee or to her spouse or family.

The section applies not only to other provisions of Title 5,

but also to “any other provision of law granting benefits to

employees.” "

Particularized changes were made for situations not en-

compassed within the 5 U.S.C. §7152 catch-all. Veterans’

preferences formerly limited to wives and widows were

extended in full to husbands and widowers. 5 U.S.C. 42108,

as amended December 1971 by P.L. 92-187, 85 Stat. 644.

Educational assistance allowances for veterans were equal-

ized in the same manner. Formerly, Congress had defined

the term “dependent,” for purposes of an augmented vet-

erans’ educational assistance allowance (see 38 U.S.C.

§1682), to include all wives, but to exclude husbands capable

of self-support. Significantly, the amendment redefines “de-

pendent” to include all husbands as well as all wives of

eligible veterans. 38 U.S.C. $102(b), as amended October

* See also 5 U.S.C. §7151 (declaring it U.S. policy to insure

loyment "88. because of,

a sex); 5 U.S.C Wise (pr (prohibiting discrimination in

federal employment beca Oy cakes tae § U.S.C. ead pe ol

tee neeranen irom federal om

Katemegge gh cg gem y .

_il

“¢

¢;

1972 by P.L. 92-540, 86 Stat. 1092. No support or need test

is part of the scheme. Rather, the statute is premised on

the interdependence of spouses.

Congress similarly adjusted the provision for cost of

living allowances covering dependents of federal employees

residing in foreign areas. Formerly, the allowance was

allocated to “the employee’s wife.” The amendment ex-

tended the allowance to encompass “the employee’s spouse.”

5 U.S.C. §5924, as amended December 1971 by P.L. 92-187,

85 Stat. 644. Housing allowances for male and female

members of the uniformed services and their spouses were

equalized July 9, 1973 in accordance with this Court’s May

14, 1973 Frontiero decision. 37 U.S.C. §401, as amended

by P.L. 93-64, 87 Stat. 148.% Provisions of the Federal

Employee’s Compensation Act were amended in September

1974 to assure equality of secondary benefits for the spouses

of men and women in the civilian service. 5 U.S.C. §§8101

(6) and 8101(11), as amended by P.L. 93-416, 88 Stat. 1143.

Of special note, even before enactment of the 5 U.S.C.

$7152 catch-all, Congress altered the Civil Service Retire-

ment Act to accord widowers the same automatic qualifi-

cation as widows for survivors’ annuities. 5 U.S.C. §8341.

as amended January 1971 by P.L. 91-658, 84 Stat. 1961. A

concise explanation for the change appears in H.R. Rep.

No. 91-1469, 91st Cong., 2d Sess. :*

' 8 The Frontiero equalization has been declared fully retroactive.

53 Comp. Gen. 148 (August 31, 1973).

°° This change alone renders untenable a pellant’s ultimate argu-

ment that: 1) federal civil service ent is “an alterna-

tive system” to social security; it would “distort the statutory

scheme” to remove the widower’s dependency test from social

security. Brief for the Appellant at 8, 38. For an eminently clear

policy was expressed by Congress when it removed the widower’s

([T]jhe present provision is discriminatory in that it

runs counter to the facts of current-day living, whereby

the woman’s earnings are significant in supporting the

family and maintaining its standard of living. Accord-

ingly, the bill removes the dependency requirements

applicable to surviving widowers of female employees,

thus according them the same treatment accorded

widows of deceased male employees.

In all these measures, Congress rejected the independent

man/dependent woman model once pervasive in fed-

eral and state legislation.” Instead, the principle in-

forming the change is the economic and social interdepen-

dence of wife and husband, their partnership in a marital

unit composed of two individuals of equal human status

and dignity.

Appellant himself has placed in sharp focus the anach-

ronistic quality of the congressional direction he is obliged

to support in the case at bar. Carrying out a flatly contra-

depen test for secondary federal civil service retirement

benefits. t policy should apply with equal force to social secur-

ity. Again, it is instructive to view the matter in light of Hannah

and Leon Goldfarb’s situation. If Hannah had been the federal

emp , insured under the federal civil service retirement sys-

tem, > ereies seeee, Sueee Deve quetend Se aantiy

benefits until his death regard to his dependency.

* For examples of si -motivated change in state laws, see

1975 Hand on Women Workers 328 (formerly “women only”

minimum wage laws extended to men); Freed & Foster, Taking

Out the Fault but not the Sting, 12 Trial No. 4, 10 at 11 n.16

and 12 n.57 (April 1976) (in at least 32 states maintenance (ali-

mony) “has been ‘desexed’ and, in accord with equal protection

rinciples, has been made available to either ”"); Note, 9

. Mich. J. L. Ref. 138, 139, 161 n.161 (1975) (state workers’

pp mee ser legislation amended to extend conclusive presumption

of dependency to widowers).

dictory congressional command of more recent vintage,

Title IX of the Education Amendments of 1972, 20 U.S.C.

§$1681 e¢ seg., appellant has declared that recipients of

federal funds may not withhold from the spouse of a

female wage earner any benefit provided to the spouse

of a male wage earner. In Final Title [X Regulations

Implementing Education Amendments of 1972 Prohibiting

Sex Discrimination in Education, 45 C.F.R. §86.56-58, ap-

pellant has directed:

$86.56

(b) Prohibitions. A recipient shall not:

(1) diseriminate on the basis of sex with regard to

making fringe benefits . . . available to spouses

. . - Of employees differently upon the basis of

the employee’s sex;

@ @ @ ‘se @

(3) . . . participate in a pension or retirement plan

which . . . discriminates in benefits on the basis

of sex.

$86.57

(a) General. A recipient shall not apply any policy or

take any employment action:

(2) which is based on whether an employee .. . is the

head of household or principal wage earner in

such employee’s . . . family unit.

$86.58

(b) Benefits. A recipient which provides any . . . bene-

fit to members of one sex pursuant to a State or

local law or other requirement shall provide the

same ... benefit to members of the other sex.

These Title [X Regulations reflect legislative as well as

executive consideration. Approved by the President in

June 1975, the Regulations were placed before Congress

for a forty-five day period during which hearings were

held thereon, and became effective on July 21, 1975. For

appellant’s earlier declaration of the same position, see

U.S. Department of Health, Education, and Welfare,

Higher Education Guidelines pursuant to Executive Order

11246, October 1, 1972, at 13: “It is . . . unlawful for an

employer to make benefits available to the wives and

families of male employees where the same benefits are

not available to the husbands and families of female

employees.”

The typical case to which appellant’s Regulations and

Guidelines are addressed illustrates the irony and illogic

of his position in this litigation:

W, a married woman, retires in 1973 and dies in 1974.

E, her employer, conditions retirement and death bene-

fits for her spouse (H) on proof that H received at

least half his support from W, but grants the benefits

in question automatically to the spouse of a male

employee.

Appellant has declared that the differential just described,

when invoked by E, causes and continues relegation of

women to an inferior position in the economy. But the

very same differential, when invoked by appellant pur.

suant to 42 U.S.C. $§402(¢)(1)(C) and (f)(1)(D), is al

leged to redress gender discrimination by ameliorating the

inferior economic status of women. E might well wonder

why he is not permitted to utilize a differential identical

to the one appellant applies to the same couple. His be.

wilderment may be compounded should he determine to

integrate his employees’ pension scheme with social se-

curity. For it simply defies reason to claim that the classi-

fication perpetuates gender discrimination when it appears

in an employer’s pension scheme, but assuages or rectifies

gender discrimination when it appears in the nation’s

“earned right,” employment-related social insurance pro-

gram. As expressed in recent commentary: “It would be

highly anomalous for a court to decide that the sex classi-

fications of OASDHI meet either the rational relationship

or the compelling state interest test, when such classi-

fications are not allowed in employment plans within the

private sector.” Note, Sex Classifications in the Social

Security Benefit Structure, 49 Ind. L.J. 181, 193, 195 (1973).

In comparison to the otherwise uniform federal approach

to employment-related benefits, 42 U.S.C. §§402(e)(1)(C)

and (f)(1)(D) stands out as a glaring anomaly, an isolated

and anachronistic backwater. Indeed, there is but one

rational explanation for appellant’s defense of the 4402

gender line in this Court at the very time appellant con-

demns use of that line by employers subject to his scrutiny :

In both cases appellant is carrying out congressional

orders. But the conflict in those orders and in their under-

lying premises is inescapable. One is wedded to an old

and misguided paternalistic notion; it heempettt with

the role-typing society has long imposed.” Stanton v.

Stanton, supra, 421 U.S. at 15. The other reflects appre-

ciation that in an egalitarian union, man depends on woman

fully as much as woman depends on man.

IV.

Consistent with the dominant ni ae

rovide old-age and survivors insurance manner

a respects the dignity of the aged, the court yon

declare 42 U.S.C. §§402(c)(1)(C) and paneer

unconstitutional insofar as these provisions deny = a

spouse of a female wage earner benefits accord

spouse of a male wage earner.

The court below, upon determining that the oe

differential discriminates impermissibly on the basis -

gender, found the appropriate remedy—invalidation of ,

widower’s support test—plainly marked by this Court’s

decisions. Accord, Silbowitz, Jablon, Coffin, Abbott, nay

pp. 15-16. In Wiesenfeld, this Court unanimously affirmed a

judgment declaring”

42 U.S.C. Section 402(g) is unconstitutional ne gr

as it discriminates against widowers on the basis 0

sex.

Appellant, Secretary of Health, Education, and Welfare,

was

enjoined from denying benefits under Section 402(g) to

widowers solely on the basis of sex

*1 See Jurisdictional Statement at 23a, Weinberger v. Wiesenfeld.

directed to make payments to the plaintiff Stephen

Wiesenfeld for such periods during which he would

have been qualified to receive benefits but for the dis-

crimination . . . based upon sex contained in Section

402(g).

Similarly, in Frontiero, supra, 411 U.S. at 691, the Court

held:

(T]he challenged statutes violate the Due Process

Clause of the Fifth Amendment insofar as they re-

quire a female member to prove the dependency of her

husband.

The accompanying footnote (411 U.S. at 691 n. 25) re-

iterates :*

Our conclusion in no wise invalidates the statutory

schemes except insofar as they require a female mem-

ber to prove the dependency of her spouse.

Both judgments reflect the Court’s conclusion that exten-

sion of benefits to the spouse of a female wage earner

under the same terms and conditions as those applicable to

the spouse of a male wage earner would better serve the

congressional purpose than would judicial destruction of

the basic benefit scheme.

** See 53 Comp. Gen. 148 (August 31, 1978) (retroactive appli-

cation of Frontiero to all similarly situated married members of

the uniformed services) ; 40 F.R. 27744 (July 1, 1975) (announc-

ns Veterans Administration policy to pay retroactiv

period during which the Administration denied such eines

female veteran supplied over half her hus-

concurring opinion) : When a federal statute de-

bce protection by establishing an gg a EN

classification, the judiciary must determine ane ot

sella yore ~ rere in wr to a what Con-

oe era oo aati constitutional.” Accord as to state

vocialation Skinner v. Oklahoma ex rel. Williamson, 316

U.S. 535, 542-43 (1942) ; lowa-Des Moines Nat’l Bank v.

Bennett, 284 U.S. 239, 247 (1931)."

In addition to Wiesenfeld and Frontiero, an array of

recent decisions, involving state as well as federal —

indicates this Court’s preference for salvage, rather

=A woosine statement ofthe proper judi BSP 39 (1009):

in Schmoll v. Creecy,

= ion is whether the

_ Rather the quest ;

I “— a pnt the statute to survive, and that in

stamps); New Jersey Welfare Rights Organization v.

Cahill, 411 U.S. 619 (1973) (state aid to families of the

working poor) ; Graham v. Richardson, 403 U.S. 365 (1971)

(state public assistance); Shapiro v. Thompson, 394 U.S.

618 (1969) (state and District of Columbia public assis-

tance). In all of these cases, the extensions necessary to

bring the statutes in line with constitutional limitations

required substantial expenditures of public funds. In two

of them, United States Dep’t of Agriculture v. Moreno and

New Jersey Welfare Rights Organization v. Cahill, the

remedy was not tied to any “fundamental right” or “sus-

pect criterion” determination. Similarly, in Shapiro v.

Thompson, although the Court closely scrutinized the clas-

sification, it indicated that the same result would follow

even under the traditional, more lenient “rational basis”

standard of equal protection review. 394 U.S. at 638.

The remedial issue was treated explicitly in Moritz v.

Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir.

1972), cert. denied, 412 U.S. 906 (1973). Moritz involved a

tax deduction available to never married women with in-

capacitated dependents, but not to similarly situated never

married men. The Tenth Circuit concluded: (1) the gender

line was inconsistent with the fifth amendment; (2) Con-

gress would prefer extension of the deduction to men, there-

by preserving the benefit for women, to invalidation of the

provision. 469 F.2d at 470. Significantly, the remedial route

in Moritz was noted by this Court when it pursued the same

course in Frontiero, supra, 411 U.S. at 691 n.25.

Following this Court’s guidance, lower courts have di-

rected extensions kin to the one ordered by the court below

in the instant case. See, e.g., Demiragh v. DeVos, 476 F.2d

403, 405 (2d Cir. 1978) (welfare benefits) ; de Castro v. Wein-

berger, 403 F. Supp. 23 (N.D. Ill. 1975) (divorced wife’s

child-in-care social security benefit); Vaccarella v. Fusari,

365 F. Supp. 1164 (D. Conn. 1973) (augmented unemploy-

ment benefits for child in worker's care) ; Bowen v. Hackett,

361 F. Supp. 854 (D.R.I. 1973) (unemployment and dis-

ability insurance benefits) ; Chatman v. Barnes, 357 F. Supp.

9 (N.D. Okla. 1973) (disability benefits); Miller v. Laird,

349 F’. Supp. 1034 (D.D.C. 1972) (military medical benefits) ;

Page v. Welfare Comm'n, Connecticut Law Journal, Febru-

ary 24, 1976, p. 3 (Conn. Supreme Court), excerpted in 44

U.S.L.W. 2426-27 (for purposes of determining amount

adult child can contribute to indigent parent’s support, mar-

ried daughter must be granted all exemptions regulations

provide for married sons); ef. Jn re Estate of Legatos, 1

Cal. App. 3d 657, 81 Cal. Rptr. 910 (1969) (property exempt

from tax when devised by wife to husband must also be

exempt when devised by husband to wife).

Nor is*the salvage approach a remedy of recent vintage.

For decades, courts have recognized that, while the legis-

lature ultimately may decide to revise or even abandon a

statutory benefit, in the meantime, preservation rather than

destruction of the legislation may be prescribed. See Yale

& Towne Mfg. Co. v. Travis, 262 F. 576 (S.D.N.Y. 1919),

aff’d, 252 U.S. 60 (1920) (tax exemptions granted by stat-

ute only to state citizens extended to citizens of other

states); Burrow v. Kapfhammer, 284 Ky. 753, 145 S.W.2d

1067 (1940), noted in 54 Harv. L. Rev. 1078 (1941) (plain-

tiff added to exempt class to cure unconstitutional exclu-

sion) ; Quong Ham Wah Co. v. Industrial Accident Comm'n,

184 Cal. 26, 192 P. 1021 (1920), appeal dismissed, 255 U.S.

445 (1921) (workers’ compensation benefits extended to

non-residents to cure constitutional infirmity); Note, 55

Harv. L. Rev. 1030, 1084-86 (1942).

It bears emphasis that the remedial

as in Wiesenfeld and Frontiero, involves ecrices co By

tion, not definitive disposition by this Court. Ultimate av-

thority and responsibility to eliminate or reshape the bene-

fits in question remain with Congress. Consistent with the

pattern unexceptionally followed by Congress in recent

years, see pp. 51-60 supra, the benefits would not be re-

tracted. Nor is it probable that Congress would saddle the

Social Security Administration with the exorbitant admin-

istrative burden of applying a support test to all spouses.

See Jablon v. Secretary of Health, Education, and Welfare

supra, 399 F. Supp. at 132 (reporting government counsel's

representation that the administrative cost of an across-the-

board dependency test could amount to as much as one bil-

lion dollars). Almost certainly, Congress would extend the

same benefits to the spouses of male and female wage earn-

ers “without subjecting them to the humiliation” of a de-

pendency test. See Remarks of Senator Walter F-. George,

Finance Committee Chairman, 96 Cong. Rec. 8491, 8ist

Cong., 2d Sess. (1950) (explaining that to avoid humiliating

social security beneficiaries, the Finance Committee re-

jected a need or dependency qualification for old-age and

survivors’ payments to wives, widows and children).

Specific indicia of congressional preference abound. In

recent years Congress has amended a host of federal em-

ployment-related benefit statutes to eliminate gender-based

differentials. See pp. 53-56 supra. In no instance has Con-

gress effected equalization by cross-the-board application of

a dependency test. In every instance it has extended to

husbands or widowers the automatic qualification for sec-

ondary benefits once reserved for wives or widows.”

In the social security context, Congress has already em-

barked on repair necessary to eliminate gender-based dif-

ferentials. Formerly, women received a more favorable

retirement benefit calculation than men. In October 1972,

Congress extended to male workers the more favorable

computation formula once reserved for female workers. 42

U.S.C. §414(a)(1), as amended in October 1972 by P.L.

92-603, 86 Stat. 1329. Pertinent too is the broad separability

clause contained in the Social Security Act. 42 U.S.C. $1303

provides:

If any provision of this chapter, or the application

thereof to any person or circumstance, is held invalid,

the remainder of the chapter, and the application of

such provision to other persons or circumstances shall

not be affected thereby.

That section, of course, should divert the judiciary from any

remedial course other than invalidation of 42 U.S.C. §§402

(c)(1)(C) and (f)(1)(D). See Jablon v. Secretary of

Health, Education, and Welfare, supra, 399 F. Supp. at

131-32.

Finally, the U.S. Commission on Civil Rights, the Quad-

rennial Advisory Council on Social Security, and virtually

“Cf. the Equal Pay Act, 29 U.S.C. §206(d)(1), which encom-

passes employer expenditures for fringe benefits. The Act prohibits

reducing the wage of any employee; it commands that in all cases,

the required equalization must be up, never down. See Brennan v.

Corning Glass Works, 417 U.S. 188 (1974) (full upward equali-

zation is necessary to accomplish genuine neutrality).

every other official report and reasoned analysis in point

recommends elimination of the dependency test for hus-

band’s and widower’s benefits.“

Of particular interest in this respect is the Task Force

report repeatedly cited by appellant to support the differ-

ential at issue here. See Brief for the Appellant at 20, 27,

35. In calling to this Court’s attention snippets from that

report, appellant omitted to disclose what the Task Force

concluded :

The Task Force recommends the following immediate

and long-range proposals to strengthen Social Security

protection for women ....

Benefit rights for dependents of women workers

should be equalized by:

Eliminating the dependency requirement for hus-

band’s or widower’s benefits.

Women and Social § curity, Working Paper prepared by

the Task Force on Women and Social Security for use of the

* See note 13 supra. Most of the’ recommendations call for elim-

ination of the support test for husband’s and widower’s benefits,

without further Metsere Sheen. E.g., U.S. Commission on

Civil Rights, Toward Elimination of Sex-Based Differentials in

the Social Securi 10 eae taal of ; 8. ye

Sa ‘Gan he tae 1 /— Ree 87009 ( ed. H :

1975) (Sen. Bayh); H.R. 11555, 94th q oo

)

Cone

28, 1976) (Rep. Conlan), The Quadrennial

engi Giuieeion ab’ ie ‘ous Wisc havens coches ap

Cong., 2d Sess., 1 "

Special Committee on Aging, United States Senate, Com-

mittee Print, 94th Cong., 1st Sess, 39 (1975). See also id.

at 16 (“(T]he wife’s contributions purchase less in terms

of dependents benefits. . .. Such explicit sex discrimination

clearly calls for correction. The cost of removing these

dependency requirements is low . . . .”), 17 (close scrutiny

should be given to questions of equity and the treatment of

married women’s labor-force participation), 19-20 (“there

is no sound reason for treating husbands and widowers

differently than wives and widows”), 42 (if the §402 gender-

based differentials are removed, “the working wife’s con-

tributions will have the same value as do her husband’s in

purchasing family protection”).

In sum, the express remedial preference of Congress in

all of its recent measures eliminating gender-based differ-

entials, well-established judicial precedent and reasoned

commentary” signal the direction for a court concerned

with interim preservation rather than destruction of legisla-

tive policy. Elimination of benefits to a wage earner’s

spouse would conflict with a primary statutory objective.

A cross-the-board dependency test would be inconsistent

with the basic design of social security as an “earned right,”

not a public assistance program. Further, extension of the

support requirement would impose an administrative bur-

den of potentially monstrous proportion. Moreover, Leon

Goldfarb commenced this action to secure benefits under

his insured wife’s account. Neither application of a de-

pendency test cross-the-board nor elimination of survivors’

benefits forms any part of his complaint. Cf. Colburn v.

Colburn, 20 Md. App. 346, 353-54, 316 A.2d 283, 287-88

aera Notes, 89 Harv. L. Rev. 95 (1975); 49 Ind. LJ. 181

(Md. Ct. App. 1974). Judicial resort to those “remedies”

would not respond to the “case or controversy” Leon Gold-

farb’s complaint presents.” Under the circumstances, decla-

ration of the invalidity of the §4402(c)(1)(C) and (f)(1)

(D) one-half support stipulation is the only suitable judicial

remedy.” 42 U.S.C. §§402(c)(1)(C) and (f)(1)(D) should

be invalidated insofar as those provisions require proof

that the female insured individual supplied at least one-half

ae spouse’s support. See Frontiero, 411 U.S. at 691

* Since similarly circumstanced spouses

have been accorded the benefit, the denial i

appellee can be repaired only by according him the benefit from

- the date of his application.

* The Court’s tentative adjudication striking the support stipu-

‘lation would bar only one final solution. Congress could not draw

a gender line. But it could consider a full range of functional

approaches, including measures that would yield a decrease, rather

pon increase in benefit costs. See, ¢.g., Quadrennial Council

= cited supra, notes 13 and 65; Women and Social Security,

orking Paper, supra, at 77-79 (supplementary statement by Al

M. David, Former Assistant Social Security Commissioner in

charge of program evaluation and legislative planning).

CONCLUSION

For the reasons stated above, the decision of the district

court declaring 42 U.S.C. $§402(c)(1)(C) and (f)(1)(D)

unconstitutional insofar as these provisions discriminate

on the basis of gender should be affirmed.

Respectfully submitted,

Ruts Baper Gouyssure

Metvis L. Wouur

Karuizen Wiiiert Peratis

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Naprve Tavs

Women’s Rights Litigation

Clini

175 University Avenue

Newark, New Jersey 07102

Attorneys for Appellee

June, 1976

A for A knowl the assistan

vided te oe Oe by Cabanbie Law School

Lauren W. Field, Mary Elizabeth Freeman and Cathy

ADDENDUM

42 U.S.C. §402, in pertinent part, provides:

Wife’s insurance benefits

(b)(1) The wife . .. and every divorced wife...

of an individual entitled to old-age or disability in-

surance benefits, if such wife or such divorced wife—

(A) has filed application for wife’s insurance

benefits,

(B) has attained age 62 or (in the case of a wife)

has in her care (individually or jointly with such

individual) at the time of filing such application a

child entitled to a child’s insurance benefit on the

basis of the wages and self-employment income of

such individual,*

and

(D) is not entitled to old-age or disability insur-

ance benefits, or is entitled to old-age or disability

insurance benefits based on a primary insurance

amount which is less than one-half of the primary

insurance amount of such individual,

shall... be entitled to a wife’s insurance benefit ... .

Husband’s insurance benefit

(c)(1) The husband .. . of an individual entitled to

old-age or disability insurance benefits, if such hus-

band— —

* The child-in-care reference has no counterpart in §402(c) (1

(husband’s insurance benefits). But see Weinberger v. Wiesenfeld,

420 U.S. 636 (1975).

(A) has filed application for husband’s insurance

benefits,

(B) has attained age 62,

.. . from such individual [at the time she became

entitled to old-age benefits]

and filed proof of such support within"two years

after the month in which she filed application with

respect to such period of disability or after the

month in which she became entitled to such benefits,

as the case may be, or, if she did not have such a

period, two years after the month in which she be-

came entitled to such benefits, and,

(D) is not entitled to old-age or disability insur-

ance benefits, or is entitled to old-age or disability

insurance benefits based on a primary insurance

amount which is less than one-half of the primary

insurance amount of his wife,

shall be entitled to a husband’s insurance benefit ....

(Emphasis supplied.)

Widow’s insurance benefits

(e)(1) The widow .. . and every surviving divorced

wife .-... of an individual who died a fully insured

individual, if such widow or such surviving divorced

wife—

(A) is not married,

(B) (i) has attained age 60...

ance benefits, or was entitled to wife’s insurance

benefits, on the basis of the wages and self-employ-

ment income of such individual, for the month pre-

ceding the month in which he died . . . or

(ii) was entitled, on the basis of such wages

and self-employment income, to mother’s insurance

benefits for the month preceding the month in which

she attained age 65,° and

(D) is not entitled to old-age insurance benefits or

is entitled to old-age insurance benefits each of which

is less than the primary insurance amount of such

deceased individual,

shall be entitled to a widow’s insurance benefit... .

Wido-er’s insurance benefits

(f)(1) The widower . . . of an individual who died

a fully insured individual, if such widower—

(A) has not remarried,

(B) (i) has attained age 60...

was entitled to husband’s insurance benefits, on the

basis of the wages and self-employment income of

such individual, for the month preceding the month

in which she died...

* The “mother’s insurance benefits” reference has no “father’s

insurance benefits” counterpart in §402(f)(1) (widower’s insur-

as But see Weinberger v. Wiesenfeld, 420 U.S. 636

(D) (i) was receiving at least one-half of his

support ... from such individual at the time of her .

death...

(E) is not entitled to old-age insurance benefits or

is entitled to old-age insurance benefits each of which

is less than the primary insurance amount of his

deceased wife,

shall be entitled to a widower’s insurance benefit ... .

(Emphasis supplied.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.