Amicus Brief — Califano v. Westcott

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IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No. 78-437 \"

JOsEPH A. CaLiFANo, Secretary of Health,

Education and Welfare, Appellant,

— |

Crnpy Westcort, et al., Appellees.

No. 78-689

ALEXANDER SHARP, II, Commissioner of the Massachusetts

Department of Public Welfare, Appellant,

—Vi—

Crnpy WeEstcort, et al., Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE

of American Civil Liberties Union, Center for Women Policy

Studies, Federally Employed Women, Federation of Organizations

for Professional Women, League of Women Voters of the United

States, National Association of Black Women Attorneys, Inc.,

National Organization for Women, National Women’s Health

Network, NOW Legal Defense and Education Fund, Rural Ameri-

can Women, Women’s Legal Defense Furd and Women’s Lobby.

Nancy Durr CAMPBELL RutH BapgeR GINSBURG

Women’s Rights Project Diana A. STEELE

Center for Law and American Civil Liberties

Social Policy Union Foundation

1751 N Street, N.W. 22 East 40th Street

Washington, D.C. 20036 New York, New York 10016

RosauinD M. Gordon Puyuuis N, SEGAL

1 Battery Park Plaza NOW Legal Defense and

New York, New York 10004 Education Fund

36 West 44th Street

New York, New York 10036

Attorneys for Amici Curiae

TABLE OF CONTENTS

Table GE AWVEHMOPLtiGS.«cccccccececcs aa. |

Motion for Leave to File Brief

Amici Curiae eoevre#e#e#e#e#e#eee#e#e#e#e#e#e#ee#e## @# @ l

DR Be rs nbc ccs ceccccccccce 4

De, es caw ecacccesecccocccece 5

Questions Presented.......ceeeeeeeeee 5

Statement of the Case......2.eeeeee00 5

Summary of the Argument............. 16

ARGUMENT :

I. Section 407, by authorizing pay-

ment of benefits to needy two-

parent families with children de-

prived of parental support or

care because of the father's un-

employment, but not to identical-

ly situated families deprived

because of the mother's unemploy-

ment, violates the equal pro-

tection component of the due

process clause of the fifth

MURINE ob wesc ccccciccscccccscs 29

A. Section 407 invidiously dis-

criminates on the basis of

Dc hbbheseebenseccoccce 29

Section 407 creates a sex-

based classification rest-

ing on archaic and stereo-

typical assumptions about

WOMB ng cece wasteceesense 29

Section 407 discriminates

against women and their

families by depriving them

of benefits granted to

identically situated men

and their families......38

The section 407 gender-based

Classification is not sub-

stantially related to any

important governmental

OPISCCAVR i cackevissessecvee 45

The proper standard of

review for the section

407 gender-based classif-

ication is set forth in

Craig v. Boren....cccce 45

Section 407 does not

fairly advance the objec-

tive it was enacted to

eee Mteeetvsecs SO

Prevention of paternal

desertion was not the

objective of the section

407 gender classification.

In any event, the sex

Classification does not

fairly serve the need of

deterring paternal deser-

If.

Cc.

CeAeIERIAR ccc ccrvevseseacuce 66

The appropriate judicial remedy in

this case is to extend the AFDC-U

program to families in which either

parent is unemployed, not to com-

pletely restructure the program

through the addition of a prin-

cipal wage earner test........68

Introduction...... reer

Extension, not invalidation,

is the appropriate rem-

edy.

eoenwnee <Cneawendssweeokeure

The presence of a sever-

ability clause in the

Social Security Act sup-

ports extension.......75

The congressional com-

mitment to the AFDC-U

program supports ex-

Cension..ccocccscecssscel®

Extension can easily be

accomplished within the

administrative framework

of the statute........78

Any restructuring of the AFDC-U

program to include a principal

wage earner limitation should

‘ce accomplished by Congress,

not this court......2+.++-93

TABLE OF AUTHORITIES

Cases: Page

1. Difficult policy ques-

tions would have to be

resolved by the Court

in order to accept

Massachusetts’ princi-

pal wage earner limita-

CIGN sc cocovesnssdatoenwaee

Abbott v. Mathews, No. 74-194

(N.D. Ohio, 1976), aff'd

sub nom,Califano v. Abbott,

Bae ue, Wee TACT ccc cccece ee yc

Bowen v. Hackett, 361 F.

Supe. G54 Rik. 19731... cvcce 74

2. The difficulty of pre-

dicting the remedy that

Congress would select. :

TYTTTiCT TTC ee

Browne v. Califano,

No. 77-1249 (E.D. Pa.

June 9, 1978), appeal held

in abeyance, No. 78-603

0.8. Dec. ib, 1976) ...14,36,75,%

3. If any prediction can be

made about the remedy

Congress would select, it

is that Congress would

favor simple extension

without a principal wage

earner limitation....116

Califano v. Goldfarb, 430 U.s. 199(1977)

coe 17,18,22,33,359,39,40,42 ,43,44,

45,48,49,65,66,72,76,85,86,114,123

Califano v. Jobst, 434 U.S.

47 (1977) 45

4. Congress will act if it Califano v. Webster, 430 U.S.

prefers a remedy more

complex than straight- | 313 (1977) 48

forward extension....121

| Cleveland Board of Education

COMCTLGTION « ooo vd cniddvaccebeee | v- La Fleur, 414 U.S. 632 (1974)

2 ee re Ff

Craig v. Boren, 429 U.S. 190

(1977) eeeeeee oan ,19,45,48,49,57,58

Cases: Page

Demiragh v. DeVos, 476

F.2d 403 (2d Cir. 1973) ecccccecel4

Frontiero v. Richardson,

411 U.S. 677 (1973) ecccccccccece

--17,18,23,33,35,39,42 ,44,47,65,72

Graham v. Richardson,

Se ee Se CEPT RL cascdevececante

Jablon v. Secretary of

HEW, 430 U.S. 924 (1977),

aff'g 399 F. Supp. 118

(D.Md. 1975).. 22,72,76,85,107,115

Jiminez v. Weinberger,

417 0.6. 626 (1974) evccesccccssvelé

Kahn v. Shevin, 416 U.S.

351 (1974) cccccccvccccccicccccccd&

Mathews v. DeCastro, 429

U.S. 181 (1976) saoctocccccrvcese c4S

Mathews v. Eldridge, 424

U.s. 319 PESO BR eeredesotocessecss

Mathews v. Lucas, 427 U.S.

495 (2976) 0c 6cbdcsoeseeecs643,45,49

Memorial Hospital v, Maricopa

County, 415 U.S. 250 (1974)..65,72

Miller v. Laird, 349 F. Supp.

1034 2.8.6 Det cdeaknaeeeeeeonte

met nk ee

iii.

Cases: p Page

Moritz v. Commissioner, 469

F. 2d 466 (10th Cir.

1972), cert. denied,

412 U.8. 906 (1973)... cee

Moss v. Secretary of

HEW, 408 F. Supp. 403

(M.D. Fla. 1976), dismissed

by stipulation, No. 74-721

(SUSY AO) DOPE) oc bckvencudsnnn

New Jersey Welfare

Rights Organization

v. Cahill, 411 U.S.

GLP CASTS civ eredkcnes osasdevee

Orr v. Orr, No. 77-

11L9 (U.8. Mer. 35,

oa Torre r rere err re err ey

Philbrook v. Glodgett,

421 Fe 708 (A97Oh decceanc sae

Reed v. Reed, 404 U.S.

71 (1971).....19,32,46,47,49,65,66

Richardson v. Davis,

409 U.S. 1069, aff'g

mem., 342 F. Supp. 588

(DO. Coma B91TS) vcctvcdedscucanae

iv.

Cases: Page

Rosado v. Wyman, 397

U.S. 397 (1970)

eoeeneneeeee Seatoecee

Silbowitz v. Secretary

of HEW, 397 F. Supp. 862

(D. Fla. 1975), aff'd

sub nom, Califano v. Sil-

bowitz, 430 U.S. 924

(1977)

GUNS G08D O00 O00 8 be 6 b4e Osh ORED

Stanton v. Stanton, 421

U.S. 7 (1975), eoereeeeee oeeesces es c4e

Stevens v. Califano, 448

F. Supp. 1313 (N.D. Ohio

1978), appeal held in

abeyance, No. 78-449 (U.S.

Dec. 11, 1978)...14,36,55,63,75,92

Townsend v. Swank, 404

U.S. 282 og | RE

United States Dep't of

Agriculture v. Moreno, 413

U.S. 528 (S070) 6h 0s b0e8sc000 68,72

Vacoarella v. Fusari, 369

F. Supp. 1164°(D. Conn. 1973)...74

Cases: Page

Weinberger v. Salfi, 422

Use 749 (1975) coccsvccccceve 44

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975) wcccccoks silG,

23,33,35,39,40,42,43,44,45,72,76

Welsh v. United States,

298 U.S. 333 (1970)

eeeeeeeenseeneeneeeee 22 ,23,71,73,74

Statutes:

42 U8. $60L.cccccccccece eenee 6

42 UVsbeGe ft er

42 U.S.C. §606.......7,80,89,120

42 U.S.C. §607

cccensecdcceeGs latte toeeeeGe etal

42 Us eee BlIOs ccccecssoacveot

42 mm $1396 Bc cccscccecserse®

P.L. 94-566, §507,

90 Stat. Bs 60 60 0-00 606e0nnee

vi.

Statutes: Pages

P.L. 95-216, SN eid a an

Pub. L. No. 87-31,

75 Stat. ae ae ee ee re es

Regulations:

45 C.F.R. §206.10

RAE EE re,

45 C.F.R. §233.100

Bh sy) i ee oe

6 CHSR III, Pt. 303

Subpt. A §303.01-

ee ee re ee Lt

6 CHSR III, Subch. A,

Pt. 301, 2 | Rk nr ae |

—

Legislative History:

aG7 Come. Rec. 2795 (i961)... ccecdd

107 Cong. Rec. 3759 (1961).......35

107 Cong. Rec. 3761 (1961).......60

107 Cong. Rec. 3765 (1961).......-60

107 Cong. Rec. 3766 (1961).......35

107 Cong. Rec. 3769 (1961)... 35,60

107 Cong. Rec. 6401 (1961)... 35,60

vii.

Legislative History: _ Page

108 Cong. Rec. 4272 (1962) .....35

108 Cong. Rec. 13879 (1962).....35

108 Cong. Rec. 14139 (1962).....35

113 Cong. Rec. 33193 (1967).....63

113 Cong. Rec. 33194 (1967) .....63

33 Fed. Reg. 17111 (Nov. 16,

1968)

34 Fed. Reg. 1146 (June 24,

SOOTE dons vekeancadudtacions6seear

H.R. 3864, 87th Cong,,l1st

Gass. (19G1) .cccastcccssccsneotn

H.R. 3865, 87th Cong.,lst

Sess. $2 (1961) .ccccecccldDd, 51,54

H.R. 10711, 95th Cong.,2d

Sess. $205 (1978) ..ccccccccccislh

S.2777, 95th Cong., 2d Sess.

§101 (1978) .cccccccccccccccscdsl

H.R. Rep. No. 1414, 87th Cong.,

2d Sess. (1962) ..ccccccccccceed®

H.R. Rep. No. 544, 90th Cong.,

lst Sess. 108 (1967) ...53,54,77

S. Rep. No. 628, 74th Cong.,

lst Sess. (1935) .ccceceessceeSO

S. Rep. No. 744, 90th Cong.,

lst Sess. 160 (1960), .......54

reprinted in 1967 U.S. Code

Cong. and Admin. News 2834,2997

S. Rep. No. 95-572, 95th Cong.,

lst Sess. 27-28 (1978) ......116

President's Message on Economic

Recovery and Growth, Feb. 2, 1961,

H.R. Doc. 81, 87th Cong.,lst Sess.

reprinted in 1961 U.S. Code Cong.

and Admin. News 1028 ,,..51,60,63

‘%

viii.

Legislative History: Page

Temporary Unemployment

Compensation and Aid

to Dependent Children

of Unemployed Parents:

Hearings on H.R. 3864

and H.R. 3865 Before The

House Committee on Ways

and Means, 87th Cong.,

lst Sess. 103-104 (1961) ..52,61

Books and Articles:

Bell, Working Wives and

Family Income,in Economic

Independence for Women 239

(Chapman, ed. 1976) ...........36

Collins, Social Welfare -

Effect of Eligibility for

Unemployment Compensation

On AFDC Benefits, 78

W.Va. L. Rev. 268 (1976),......54

Griffiths, Sex Discrimination

in Income Security Progmams,

49 Notre Dame Lawyer 534

Fe ee irre a

ix.

Books and Articles: Page

Guberman, Sex Discrimination in

Welfare Legislation, 12 Urban

L. Ann 125 (1976) occccccccccccceedII,9/

Gunther, The Supreme Court

1971 Term Forword: In Search

of Evolving Doctrine on a Changing

Court: A Model for a Newer Equal

Protection, 86 Harv. L. Rev. l

(1972) cccccccccccccccccccccscsccccccds

Hayghe, Families and the Rise of

Working Wives -- An Overview, U.S.

Department of Labor, Bureau of

Labor Statistics, Monthly Labor

Review 12 (May 1976) poeessaweeeeuae@e at

HEW, Health Care Financing Admin.,

Office of Research, Medicaid

Statistics April 1978 i (Nov. 1978)°°°

Johnston & Knapp, Sex Discrimina-

tion by Law: A Study in Judicial

Perspective, 46 N.Y.U.L. Rev.

675 (1971) eccceccccccceccccccescseredd

"Marital and Family Characteristics

of the Labor Force in March 1976,"

BLS Special Labor Force Report

Pe ee Oe re ee er eee ye ee

Memorandum for the United States as

Amicus Curiae, Cleveland Board of

Education v. La Fleur, 414 U.S.

Re |) ee eee Ti

Books and Articles:

Page

Randolph, Sex Discrimination

in the Family Benefits Section

of the Social Security Act, 8

Clearinghouse Rev. 535 (Dec.

LOPE) cccivcendceceessiscacesesenme

41 S . ] S it B 1] tj

(May 1976) ccscccescsccevcescee Sl

42 Social Security Bulletin

(Jan. 1979).......6,8,9,81,84,85

Task Force on Sex Discrimination

Civil Rights Division, United

States Department of Justice,

Interim Report to the President

(Oct. 3, 1978).

eoeeeoeenereeee 42,80

U.S. Department of Labor, Bureau

of Labor Statistics, Monthly

Labor Review

(April 1972) ...37

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

NO. 78-437

JOSEPH A. CALIFANO, Secretary of Health,

Education and Welfare,

Appellant,

CINDY WESTCOTT, et al.,

Appellees.

NO. 78-689

ALEXANDER SHARP, II, Commissioner of

the Massachusetts Department of

Public Welfare,

Appellant,

Vv.

CINDY WESTCOTT, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE

e l.

The American Civil Liberties Union, the

Center for Women Policy Studies, Federally

Employed Women, the Federation of Organi-

gations for Professional Women, the League

of Women Voters of the United States, the

National Association of Black Women Attor-

neys, Inc., the National Organization for

Women, the National Women's Health Net -

work, the NOW Legal Defense and Education

Fund, Rural American Women, the Women's Legal

Defense Fund and Women's Lobby respectfully

move, pursuant to Rule 42 of this Court's

Rules, to file the within brief amici

curiae in Sharp v. Westcott, et al. Counsel

for the appellees have consented to the

filing of this brief; counsel for appellant

Sharp has refused comment.

This brief is also filed on behalf

of the above-listed organizations in

Califano v. Westcott,with the written

consent of the parties as provided in

Rule 42 of this Court's Rules.

These organizations share a convic-

tion that individuals must be free to

participate in all facets of American

life without discrimination on the rye

of gender. Such discrimination is parti-

cularly intolerable when, as in the

statute challenged in this case, its

devastating impact falls upon women who

are poor and their families. These organ-

izations believe that such gender based

discrimination casts the weight of the

state on the side of traditional notions

about male/female behavior, shores up

artificial barriers to the attainment by

women and men of their full human poten-

tial and retards society's progress toward

equal opportunity. Because of these organiza-

Be | IN THE

tions' long-standing work towards the SUlras Gyyes OF SES UNSTED STATES

| OCTOBER TERM 1978

elimination of gender discrimination, they |

NO. 78-437

beliéve their brief will be of substantial :

JOSEPH A. CALIFANO, Secretary of Health

assistance to th r i

e Court in the resolution cheiiien ant Weitere.

of the issues raised by these cases. Appellant,

Respectfully submitted, | Vv.

CINDY WESTCOTT, et al.,

RUTH BADER GINSBURG Appellees.

DIANA A. STEELE

American Civil Liberties | NO. 78-689

Union Foundation |

22 East 40th Street

New York, New York 10016 ALEXANDER SHARP, II, Commissioner of the

| Massachusetts Department of Public Welfare,

NANCY DUFF CAMPBELL

Women's Rights Project Siac

Center for Law and Social v.

Policy

1751 N Street, N.W. | CINDY WESTCOTT, et al.,

Washington, D.C. 20036

Appellees.

PHYLLIS N. SEGAL

;

NOW Legal Defense and ON APPEAL FROM THE UNITED STATES

Education Fund | DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

36 West 44th Street

New York, New York 10036

BRIEF AMICI CURIAE

ROSALIND M. GORDON | ; oe = ;

American Civ Liberties Union, Center For Women

A ee gl ga 4 Policy Studies, Federally Employed Women, Federation

- of Organizations for Professional Women, League of

Women Voters of the United States, National Associ-

Attorneys for Movants. ation of Black Women Attorneys, Inc., National

Women's Health Network, NOW Legal Defense and Edu-

cation Pund, Rural American Women, Women's Legal

Defense Fund and Women's Lobby.

INTEREST OF AMICI

The interest of amici appears from

the foregoing motion.

declare unconstitutional and enjoin the en-

QUESTIONS PRESENTED

Whether Section 407 of the Social

Security Act, by authorizing payment of

benefits for needy children of two-

parent families when the children are

deprived of parental support or care

because of the father's unemployment,

but not for identically situated

children of families deprived because

of the mother's unemployment, violates

the equal protection component of the

due process clause of the fifth amend-

ment.

Whether the appropriate judicial rem-

edy in this case is to extend the

AFDC-U program to families in which

either parent is unemployed, or

to completely restructure the program

through the addition of a principal

wage earner test. F

STATEMENT OF THE CASE

This is a class action commenced to

forcement of the gender classification

established in Section 407 of the Social

Security Act, 42 U.S.C. §607 (hereafter

Section 407), and the implementing Massa-

chusetts welfare regulations, 6 CHSR III,

Subch. A, Pt. 301, §301.03; Pt. 303

Subpt. A. §§303.01-303.04. Title IV of

the Social Security Act, of which Section

407 is a part, creates the Aid to Families

with Dependent Children Program (hereafter

AFDC), 42 U.S.C §601 et seq. Under this

program, states with an approved plan re-

ceive federal matching funds for cash

assistance paid to families with a "depen-

dent chila.* +/

Section 406(a) of the Act defines

dependent child as a needy child deprived

of parental support or care by reason of

the death, absence or incapacity of a

1/ The amount of benefits is determined by

each participating state, see Rosado v. Wyman,

397 U.S. 397(1970), and as of July, 1978, the

average payment per family ranged from a low

of $817 a year in Mississippi to a high of

$4707 a year in Hawaii. See 42 Soc. Sec. Bull.

77, Table M-35 (Jan. 1979).

parent. 42 U.S.C. §606(a). Section 407(a),

held unconstitutional by the court below,

further defines the term "dependent child"

to include a "needy child ... who has been

deprived of parental support or care by

reason of the unemployment (as determined

in accordance with standards prescribed by

the Secretary) of his father...." 42 U.S.C.

§607(a). Eligibility for subsistence

benefits under this Aid to Families with

Dependent Children-Unemployed Fathers pro-

gram (hereafter AFDC-U) depends on meeting

rigorous financial and categorical criteria

designed to ensure that the recipient family

is needy and that the unemployed father has

a recent attachment to the work force and

a willingness to accept employment. 42 U.S.C.

§607; 45 C.F.R. §233.100(1977).

State participation in the AFDC-U program

established under Section 407 is optional.+/

However, states electing to participate must

comply with the requirements of the Act

and implementing federal regulations.

See 42 U.S.C. §602. Since a dependent

child is defined as one deprived

because of a father's unemployment, federal

matching funds may not be provided for

AFDC-U benefits to children deprived

because of their mother's unemployment.

Families who receive AFDC-U benefits

(or, at state itt, vm are eligible but

who have not applied for cash assistance)

are also entitled to medical assistance bene-

fits under the federal-state Medicaid pro-

2/ Twenty-six states, the District of

Columbia and Guam participate in the AFDC-

U program. 42 Soc. Sec. Bull. 78 (Jan. 1979).

gram. 42 U.S.C. §1396a(10) .-/ As with

AFDC-U, the Social Security Act does not per-

mit federal matching funds to be provided

for Medicaid benefits to needy children de-

prived of support or care because of the un-

employment of their mother.

Massachusetts has exercised its option

under Section 407 to make AFDC-U payments

and to provide Medicaid coverage to fam-

ilies with children deprived of parental

support or care because of the father's

unemployment and receives fifty percent of

the cost of its AFDC-U and Medicaid

payments from the federal govern-

_3/ Medicaid benefits are provided in the

form of direct payments to providers of

medical services. Participation in the Med-

icaid program is also optional with the states,

but all states that participate in the AFDC-uU

program also participate in Medicaid. Compare

42 Soc. Sec. Bull. 78 (Jan. 1979) (states par-

ticipating in the AFDC-U program) with HEW,

Health Care Financing Admin., Office of

Research, Medicaid Statistics April 1978 i

(Nov. 1978) (states participating in the

Medicaid program).

10.

ment. Because federal funds are not avail-

able, the state does not provide AFDC-U or

Medicaid benefits to families with children

deprived of support or care because of the

mother's unemployment.

Appellees Cindy and John Westcott and

Susan and John Westwood are married couples

who reside in Massachusetts. Both are par-

ents of a son.

On November 26, 1976, the Westcotts'

application for AFDC-U benefits was denied

because William Westcott did not have suf-

ficient quarters of work to satisfy Section

407's definition of an unemployed father.

See note 7 infra. Cindy Westcott's

potential ability to qualify her family for

AFDC-U was not considered because of

Section 407's gender limitation. According

4/ See 6 CHSR III, Subch. A, Pt. 301,

§301.03; Pt. 303, subpt. A, §303.01,

§ 303.04.

11.

to an affidavit of Cindy and William

Westcott, their landlord, who was seeking

overdue payment of their rent, suggested that

they separate so that Cindy Westcott and her then

unborn child would be eligible to receive

AFDC benefits,J.S. of Appellant Califano,

App. 27A.

On March 2, 1977, Susan and John

Westwood's application for Medicaid benefits

was denied because John Westwood had in-

sufficient work history to meet the defini-

tion of an unemployed father.J.S. of

Appellant Califano, App. 10A. Susan West-

wood's potential ability to qualify egy Ce

ily for Medicaid was not considered because

of Section 407's gender limitation.

Pursuant to a stipulation for the pur-

poses of this litigation between the attor-

neys for the Westcotts and the Westwoods

and the attorneys for Massachusetts, the

ies

Westcotts' and Westwoods' eligibility under

Section 407 was redetermined. Based on

their work histories, Cindy Westcott and

Susan Westwood were found to meet the def-

inition of "unemployed," but for the

gender requirement. Pursuant to the

stipulation, the Westcotts were granted

AFDC-U benefits and the Westwoods were

granted Medicaid benefits. J.S. of

Appellant Califano, App. 9A-10A.

On April 20, 1978, the district court

held that the gender classification created

by Section 407 violated the equal protection

component of the due process clause of the

fifth amendment. [It applied the review

stamiard enunciated in Craig v. Boren, 429

U.S. 190, 197 (1977), that to withstand

constitutional measurement "classifications

by gender must serve important governmental

objectives and must be substantially related

aos

to the achievement of those objectives?

J.S. of Appellant Califano, App. 21A-29A.

The court first identified the governmental

objectives of Section 407: the protection

and care of needy children in families with-

out a wage earner's support and the mainten-

ance of family structure and stability. J.s. of

Appellant Califano, App. 27A. It then deter-

mined that the Section 407 sex-based classifi-

cation failed to further either interest. More

than that, the court concluded the male/fe-

male distinction in this context was irration-

al and ,indeed, thwarted the objective of

family stability- J.S. of Appellant Califano,

App. 27A. Additionally, the district court

reasoned that the sex classification was

impermissible because it was rooted in an

archaic and overbroad generalization about

the role of women in society.J.S. of

14.

Appellant Califano, App. 29A-30A. Finally,

the court ruled that the proper judicial

remedy was extension of the AFDC-U program

to all families with needy children in

which either parent is unemployed within

the meaning of the Act and implementing

regulations. J.S. of Appellant Califano,

App. 36A-37A.—/

The federal appellant, Secretary

Califano, has appealed only the holding

that Section 407 violates the due process

clause of the fifth amendment. The

_5/ In accord in all respects are Stevens v.

Califano, 448 F. Supp. 1313 (N.D. Ohio 1978),

appeal held in abeyance, No. 78-449 (U.S.

Dec. 11, 1978); Browne v. Califano, Civ.

Action No. 77-1249 (E.D. Pa. June 9, 1978),

appeal held in abeyance, No. 78-603 (U.S.

Dec. 11, 1978). To date no jurist has

reached a contrary conclusion

15.

Massachusetts appellant, Commissioner

Sharp, although initially arguing in

favor of the extension remedy, later

reversed his position.2/ He appeals

only the remedy ordered by the district

court.

6 _/Massachusetts, in its original argument

supporting extension in the event the gender

line was held unconstitutional, did not sug-

gest that the AFDC-U program should be

restructured to include a principal wage earner

limitation. Appellees' Motion to Affirm 5.

After the district court's April 20, 1978 order

and opinion, Massachusetts moved for amendment

or clarification to permit the state to redesign

its AFDC-U program to incorporate a principal

wage earner test. On August 9, 1978, the

court denied the motion on the grounds that

it was up to Congress to restructure the

AFDC-U program, beyond the court's remedy.

App. 43-48.

16.

SUMMARY OF THE ARGUMENT

The court below held that Section 407

of the Social Security Act, by authorizing

payments to needy two-parent families with

children deprived of parental support or

care because of the father's unemployment,

but not to identically situated families

deprived because of the mother's unemploy-

ment, violated the equal protection component

of the due process clause of the fifth amend-

ment. It ordered that the AFDC-U program,

established by Section 407, be extended to

all families with needy children in which

either the mother or the father is unemployed

within the meaning of the Act and implemen-

ting regulations. Its decision, supported in

all respects by this Court's precedents, legis-

lative history and the congressional policies

underlying the-AFDC-U program, warrants

swift and secure affirmation.

This Court has made clear that laws

based on archaic and overbroad generalizations

about women's role in society, even when sup-

ported by empirical evidence, are inevitably

biased and therefore intolerable. Califano

v. Goldfarb, 430 U.S. 199 (1977); Weinberger

v. Wiesenfeld, 420 U.S. 636 (1975); Frontiero

v. Richardson, 411 U.S. 677 (1973). The

legislative history of Section 407 reveals

that it is predicated upon such a generaliz-

ation. Congress assumed that mothers were

not wage earners and that even when they

engaged in paid work, their employment would

not be significant to their families. This

legislative stereotyping is invidious not

only because it shapes official policy but

also because that policy then reinforces the

accuracy of the stereotype. In spite of this,

however, statistics both now and at the time

18.

Congress enacted Section 407 indicate that

women's work is significant to many families.

Although the Solicitor General concedes

that Section 407 is gender based, he then

argues that it is not gender biased. His

reasoning -- that in every case the family

unit affected by the grant or denial of aid

consists of one man, one woman and children

of both sexes -- cannot withstand even

cursory analysis. The classification is

indistinguishable on any sensible ground from

the classifications declared unconstitutional

in Frontiero, Wiesenfeld and Goldfarb, in which

the disfavored units were also families.

Indeed, the discrimination is more pernicious

here because gender operates not merely to

disadvantage but totally to disqualify, and

the disqualification is from a program offer-

ing only subsistence benefits.

19.

In Craig v. Boren, 429 U.S. 190 (1977),

the Court made explicit the elevated review

standard for sex-based classifications evolving

from its precedents since Reed v. Reed, 404

U.S. 71 (1971). It made clear that "[t]o with-

stand constitutional challenge ... classifica-

tions by sex must serve important governmental

objectives and must be substantially related

to those objectives." 429 U.S. at 197. It

has unequivocally reaffirmed this standard

in Orr v. Orr, No. 77-1119 (U.S. Mar. 5, 1979).

The legislative history of the AFDC-U

program demonstrates that its objective was

to alleviate the harsh financial and social

effects of parental unemployment upon the

family. It was proposed by President Kennedy

in 1961 along with a plan to extend the

duration of unemployment compensation. Its

declared purpose was to "make assistance

available to needy families in which the

breadwinner is unemployed." H.R. 3865, 87th

Tt i A tt

20.

Cong., ist Sess., §2 (1961). Although the

original statute was gender neutral, the

congressional hearings reveal that Congress

assumed that the families in need would be

those who had been financially supported by

the father. The 1968 amendment, changing

the word "parent" to "father", sought to

assure that AFDC-U would operate as intended --

as a program responsive to the unemployment

of one who had in fact earned wages for the

family. Congress viewed the change as a

means to correct the abuse of the program

by some states in which aid had been pro-

vided to full-time homemakers with no recent

attachment to the labor force. In lieu of

a gender-neutral method of determining

eligibility, Congress sex-typed the members

of the family and enacted the current

Section 407.

21.

Section 407 is not fairly related to

the objective of aiding families in need due

to parental unemployment. For the purposes

of a child benefit program, family units

faced with identical needs resulting from

unemployment should receive identical bene-

fits. Using the sex of a parent as a test

for inclusion or exclusion is irrational.

Deterring father desertion, a purpose

attributed to AFDC-U by the Solicitor General,

was seen by Congress as an effect rather than

a purpose of the program at its inception.

Moreover, the 1968 gender line curtailed

the original program's desertion-preventing

effect. By limiting eligibility to families

in which the father was unemployed, Congress

once again gave fathers incentive to leave

when need was caused by the mother's unem-

ployment. It also gave unemployed mothers

incentive to desert not present in the earlier

law.

II.

Because the decision to remedy a con-

stitutionally defective statute requires a

court to change a legislative provision,

the courts have generally limited themselves

to changes that can be accomplished in the

simplest fashion possible. The choice of

remedy presented has accordingly been re-

stricted to whether the statute should be

extended to bring in the individuals ex-

cluded by the legislature, or invalidated.

Welsh v. United States, 398 U.S. 333, 361

(1970) (Harlan, J.,concurring). When faced

with this choice in gender discrimination

caees, especially those involving public

benefits, this Court has consistently ex-

tended the coverage of the infirm statute.

See, e.g., Califano v. Goldfarb, 430 U.S.

199; Jablon v. Secretary of HEW 430 U.S.

23.

924 (1977), aff'g 399 F. Supp. 1118 (Dp.

Md. 1975); Weinberger v. Wiesenfeld, 420

U.S. 636 ; Frontiero v. Richardson, 411 U.S.

677.

The test to determine whether extension

or invalidation is the appropriate remedy for

a constitutionally infirm statute is "whether

it more nearly accords with Congress' wishes

to eliminate its policy altogether or extend

it ... to render what Congress plainly did

intend, constitutional." Welsh v. United

States, 398 U.S. at 355-56. In determining

the remedy that Congress would prefer, the

presence or absence of a severability

clause in the statute, the extent of Congress‘

commitment to the underlying policy of the

statute, the amount of disruption to the

statutory scheme that might accompany

extension or invalidation, and the degree

24.

to which the remedy selected might impair

legislative goals beyond those recognized

by the statute itself are all relevant. An

analysis of each of these factors ineluctably

supports the remedy ordered by the district

court in this case -- extension of the AFDC-U

program to families with unemployed mothers.

Massachusetts argues that the proper rem-

edy in this case is neither extension nor inval-

jdation, but rather judicial restructuring of

the program to include a principal wage earner

limitation. Judicial redesign of this character

is unprecedented. Indeed, the issue of the appro-

priate remedy for unconstitutionally underinclu-

sive statutes has been limited to whether a court

should extend or invalidate the statute

precisely to avoid the difficult policy

questions that are raised if the court is |

forced to sit as a legislature and evaluate

all other possible remedies that might be

available.

25.

The kinds of policy decisions in which

the court would have to become embroiled

in order to restructure the AFDC-U program

to include a principal wage earner limitation

illustrate why any such restructuring should

be left to Congress. First, the Court would

have to arrive at a definition of principal

wage earner, for there is nothing inherently

obvious in Massachusetts' definition and,

indeed, it is not even internally consistent.

Second, the Court would have to decide whether

families currently receiving AFDC-U should

have their benefits terminated by judicial

decree, for this would be the result in all

those families in which the father is not

the principal wage earner -- possibly as

many as twenty-nine percent of families current-

ly eligible. Third, the Court would have to

determine whether the cost savings attributed

to the-~ principal wage earner test by

26.

Massachusetts are sufficient to justify

the imposition of such a test. This is an

aimost impossible task, given the way in

which Massachusetts calculated those esti-

mates. Fourth, the Court must consider

whether the disparate impact that the prin-

cipal wage earner test has on women

should counsel against its adoption. All

of these policy considerations are better

resolved by Congress.

Consideration of remedies beyond ex-

tension or invalidation of the statute should

be left to Congress for the further reason

that it is difficult to predict the remedy

that Congress would select. Moreover, if

any prediction can be made, it is that Congress

would favor simple extension without a prin-

cipal wage earner limitation. The language

and structure of the current AFDC program

are inconsistent with a principal wage earner

27.

limitation. Nothing in the legislative

history that Massachusetts advances

supports the limitation. Further, although

bills have been introduced in Congress to

amend the AFDC-U program to render it gender-

neutral, noen of the proposals would impose

a principal wage earner limitation such as

that Massachusetts suggests.

Whether this Court decides to extend or

invalidate Section 407, its decision is

of course only a form of tentative adjudi-

cation, not a definitive response to any

issues raised by the sex classification's

unconstitutionality. The ultimate responsi-

bility for the structure of the AFDC-U program

rests with Congress. Should Congress decide

upon restructuring more complex than extension,

it is well-equipped to redesign the program

expeditiously.

28.

In short, the district court's con-

clusion that Section 407's sex classifi-

cation is based on an archaic and overbroad

generalization about women and that it does

not fairly advance the purpose for which

it was enacted warrants this Court's firm

approbation. fts extension of the AFDC-U

program to families in which either parent

is unemployed merits similar affirmance.

SECTION 407, BY AUTHORIZING PAYMENT

OF BENEFITS TO NEEDY TWO-PARENT

FAMILIES WITH CHILDREN DEPRIVED OF

PARENTAL SUPPORT OR CARE BECAUSE

OF THE FATHER'S UNEMPLOYMENT, BUT

NOT TO IDENTICALLY SITUATED FAMILIES

DEPRIVED BECAUSE OF THE MOTHER'S

UNEMPLOYMENT, VIOLATES THE EQUAL

PROTECTION COMPONENT OF THE DUE

PROCESS CLAUSE OF THE FIFTH

AMENDMENT .

A. Section 407 Invidiously Discriminates

On The Basis of Gender.

1. Section 407 creates a sex-based

classification resting on archaic

and stereotypical assumptions about

women.

Section 407 plainly draws a dis-

tinction on the basis of gender. The

challenged law distinguishes between a fe-

male wage earner in a needy two-parent

family and a similarly situated male wage

earner. Although the family of the former

is ineligible for AFDC-U benefits, the fam-

ily of the latter qualifies for these sub-

30.

sistence payments. The legislative message

is inescapable: the only wage earner who

counts is male. The female wage earner,

regardless of her demonstrated earning capa-

bility, wes does not even come in second; she

_7/ In addition to the gender criteria,

eligibility for AFDC-U benefits depends on

meeting certain financial and categorical

criteria. Each family is required to show

need under a state-established standard.

45 C.F.R. §233.100(a) (1) (1977). Further,

the applying parent must (1) meet the federal

definition of unemployment,i.e., be employed

less than 100 hours per month, 45 C.F.R.

§233.100 (a) (1) (iii) (1977); 42 U.S.C.607 (a);

(2) demonstrate a recent prior attachment to

the work force,i.@e., either have earned

fifty dollars or more in each of six quarters

within any thirteen-quarter period ending within

one year of the application for benefits, or have

received or qualified fer unemployment compensa-

tion within that one year period, 42 U.S.C. §607(b)

(1) (C); (3) neither have worked nor refused a

bona fide job offer without good cause for 30 days

prior to receipt of AFDC-U benefits, 42 U.S.C.

§§607 (b) (1) (A), (B); and (4) meet certain work

registration requirements. 42 U.S.C. §607(b) (2) (C).

31.

does not count at athe Nor is she seen as

helping tc keep the two-parent family in-

tact. If she is out of work, it is assumed

that she, unlike her husband, will remain

with the family. The gender classification

of Section 407, predicated upon this congress-

ional assumption about women's role in the

family, cannot pass constitutional muster.

The guiding principle emerging in the

current decade from this Court's resolution

of constitutional challenges to official

classification by gender is evident: govern-

mental action based on archaic and overbroad

generalizations about women's role in society

is inevitably biased and therefore intoler-

able. As stated by the Solicitor General,

"no law may be based on sexual stereo-

types." Brief for Appellant Califano at 26.

Ineluctably,therefore, the Section 407

gender classification must fall, unless the

Court casts off its previous decisions to

32.

embrace the misconception underpinning the

Solicitor General's argument. Stereotype,

as he would now have it, means “unsupported

belief," an assumption not backed up by

"solid-statistical evidence." Id. at 33.

But stereotype is not a synonym for myth or

false impression. It identifies the average.

Thus most of the sexual stereotypes this

Court has rejected as a basis for legis-

lative line-drawing have abundant empirical

support; "solid statistical evidence " has

backed them up.

For example, although it can be documen-

ted that men are generally more active than

women in business affairs, the Court did not

tolerate the statutory preference of men

over women in the appointment of estate

administrators. Reed v. Reed, 404 U.S. 71

(1971). The Court also invalidated a

dependency test in the Social Security Act,

33.

applicable to widowers but not widows,

in spite of "solid statistical evidence”

that 78.5 percent of all married women, and

88.5 percent of those over fifty-five, are

dependent on their husbands. Califano v.

Goldfarb, 430 U.S. 199, 238 n. 7(1977)

(Rehnquist, J., dissenting). See also Weinberger

v. Wiesenfeld, 420 U.S. 636, 643{(1975);

Frontiero v. Richardson, 411 U.S. 677, 681-682 (1973)

The insidious practice this Court has

consistently condemned is the lawmakers'

habit of treating men and women who do not

fit the generalization -- the stereotype --

as if they did. Patterning official policy

in this manner is intolerable, not because it

is without empirical support, but because it

relies on a stereotype accurate for some --

even many -- families and applies it to all,

with the result that the stereotype continues

34.

to be accurate.—2/ As stated most recently

by this Court, "[l]egislative classifications ...

on the basis of gender carry the inherent risk

or reinforcing stereotypes about the proper

place of women..." Orr v. Orr, No. 77-1119

(U.S. Mar. 5, 1979), slip op. at 14. In

short, the "solid-statistical evidence"

argument, although advanced time and again

by the Solicitor General, merits no more

weight on this occasion than it has carried

in the past —/

The legislative history of Section 407

reveals that the provision is predicated

upon a conventional image -- a stereotype --

_8/ See Johnston & Knapp, Sex Discrimination

by Law: A Study in Judicial Perspective, 46

N.Y.U.L. Rev. 675, 725-26 (1971).

_9/ This Court has been receptive to the

argument only when the classification was

perceived as preferential to women. Kahn v.

Shevin, 416 U.S. 351 (1974). There has never

been a claim that Section 407 can be viewed

as preferential to women.

35.

identical to those condemned in this Court's

prior cases. See Goldfarb, Wiesenfeld and

Frontiero. Congress regarded "breadwinner"

and "father" as synonyms. Mothers as "bread-

winners" never entered the lawmakers' cal-

culus. Throughout the Committee hearings and

floor debates the terms "wage earner," "“bread-

winner" and "father" were used interchange-

ably. i Congress apparently assumed that

genuine need would occur only when the family

was deprived of the father's wages. That

Congress was operating under the traditional

assumption of the father's preeminent economic

role in the family unit,to the virtual ex-

clusion of the mother's, has been the firm

conclusion of the district courts which, to

date, have considered the issue. See

10/ See, e.g., 107 Cong. Rec. 1795, 3761,

3766 (1361) (remarks of Rep. Mills); 107 Cong.

Rec. 3769(1961) (remarks of Rep. Cohelan);

107 Cong. Rec. 3759(1961) (remarks of Rep.

Lane); 107 Cong. Rec. 6401(1961) (remarks of

Sen. McCarthy); 108 Cong. Rec. 14139(1962)

(remarks of Rep. Mills); 108 Cong. Rec. 4272

(1962) (remarks of Rep. Keogh); 108 Cong. Rec.

13879(1962) (remarks of Sen. Byrd); H.R. Rep.

No. 1414, 87th Cong., 2d Sess. 9(1962).

—_ .

36.

Stevens v. Califano, 448 F. Supp. 1313;

Browne v. Califano, No. 77-1249.

In spite of legislation such as Section

407 reflecting and reinforcing traditional

notions, the trend in today's labor market

runs in the opposite direction. Women's

work does count in many families. Today,

the dual wage earner family represents

wef

"the typical American pattern." In 1975,

wives contributed approximately twenty-six

percent of their families’ income and of

11/ Bell, Working Wives and Family Income,

in Economic Independence for Women 239, 254,

258 (Chapman, ed. 1976). In 1975, nearly half

of all husband-wife families had two workers

or more and about two-fifths of all children

under eighteen were in such families.

Hayghe, Families and the Rise of Working

Wives -- An Overview, U.S. Department of .

Labor, Bureau of Labor Statistics,

Monthly Labor Review 12 (May 1976)

37.

these,approximately twelve percent con-

tributed fifty percent or more,=—/

Moreover, statistics contemporaneous

with the enactment and amendment to Section

407 demonstrate that women's employment at

that time was significant to their families.

From 1960 to 1970, the median proportion of

family income contributed by gainfully

etieved wives approximated twenty-seven

percent. This contribution rose to thirty-

. 14

nine percent for wives who worked full tine.’

12/ See Marital and Family Characteristics

of the Labor Force in March 1976, BLS

Special Labor Force Report 206, Table L, at

A-41. In March 1975, 72 percent of gain-

fully employed wives were working full time.

About 27 percent of mothers with preschool

age children worked full time in 1974. This

figure rises to 41 percent of mothers of

school age children. Hayghe, Families and

the Rise of Working Wives - An Overview,

supra, at 16 n. ll.

13/ U.S. Department of Labor, Bureau of

Labor Statistics, Monthly Labor Review 8

(April 1972).

14/ id.

38.

Had the old notion that men are wage

earners and women their dependents been less

deeply ingrained, the 90th Congress might

have noticed that women's employment is

often crucial to their families' well being

and thus that women's unemployment, too, can

have a devastating impact. Instead, Section

407 reflects the habitual legislative dis-

regard of women workers, their status, and

the reality of family economic interdependence.

The classification diminishes the value of

women's contributicns to family income,

aggrandizes the value of men's contributions

and places an official imprimatur on categor-

ization of women as second-class workers.

2. Section 407 discriminates against

women and their families by depriving

them of benefits granted to identically

situated men and their families.

Although the Solicitor General concedes

that Section 407 “unquestionably entails a

39.

distinction on the basis of gender,'

Brief for Appellant Califano at 7, he then

argues that its application is not "gender

biased." Id. at 8. His reasoning -- that

"in every case the grant or denial of aid

to the entire family affects, to an equal

degree, one man, one woman, and children of

both sexes" -- cannot withstand even cursory an-

alysis. Id.The classification is indistinguish-

able on any sensible ground from the classifi-

cations declared unconstitutional in Frontiero,

Wiesenfeld and Goldfarb. Those decisions

ineluctably establish that Section 407

invidiously discriminates against both the

woman and her family.

In Frontiero, the Court invalidated a

dependency test for male but not female

military spouses. Only the servicewoman was

required to prove her spouse's dependency in

order to receive a housing allowance for the

40.

couple and medical and dental benefits for

the spouse. No such requirement was

imposed upon servicemen. Since the benefits

in question were designed only for family

units, every benefited unit, and correspond-

ingly, every disfavored unit, consisted of

aman and a woman. Nonetheless, the Court

ruled that the denial of a housing allowance

and medical and dental benefits to Sharron

and Joseph Frontiero was indeed gender based

and gender biased.

In Weinberger v. Wiesenfeld, and

Califano v. Goldfarb, in which the Court

held gender-based distinctions in the

Social Security Act invalid, the disparity

in family benefit eligibility when the cov-

ered wage earner was female was also at

41.

teanee’ For example, in Wiesenfeld, the

Court found the "gender-based distinction...

entirely irrational. The classification

discriminates among surviving children solely

on the basis of the sex of the surviving

parent." 420 U.S. at 65l. In Goldfarb,

requiring widowers but not widows to prove

dependency on a covered wage earner was held

impermissible because "Social Security is

designed ... for the protection of the fam-

ily and the section discriminates against

one particular category of family -- that in

which the female spouse is a wage earner cov-

ered by social security." 430 U.S. at 209.

15/ In addition to the Court's multiple

findings of unconstitutional gender discrim-

ination in the Social Security Act, commen-

tators have repeatedly criticized the dis-

criminatory, stereotypical assumptions upon

which many of the Act's benefit programs are

predicated. See,e.g., Randolph, Sex Dis-

crimination in the Family Benefits Section

of the Social Security Act, 8 Clearinghouse

Rev. 535 (Dec. 1974); Griffiths, Sex

Discrimination in Income Security Programs,

49 Notre Dame Lawyer 534, 543 (1974).

ee ee

42.

The statute in this case is as gender

based in origin and as gender biased in re-

sult as the statutory provisions invalidated

in Frontiero, Wiesenfeld and Goldfarb. In-

deed, in stunning contrast to the Solicitor

General's outlandish "no gender bias" argu-

ment, the Department of Justice's own Task

Force on Sex Discrimination has described

Section 407 as “overtly and substantively dis-

16/

criminat[ing] against women." Moreover,

the discrimination here is, if anything, even

more blatant and more harmful than that in

Frontiero, Wiesenfeld, or Goldfarb. First,

Frontiero and Goldfarb involved presumptions

that could be rebutted. In those cases,

spouses of female wage earners who could

prove dependency, albeit under a stringent

Task Force on Sex Discrimination, Civil

Rights Division, U.S. Department of Justice,

Interim Report to the President 1% (Oct.

3, 1978).

43.

income proportion test, could qualify for

benefits. Here, gender operates not merely

to disadvantage but totally to disqualify.

Under no circumstances could Cindy Westcott

or Susan Westwood establish eligibility for

their respective families, because it was

they, rather than their husbands, who met the

employment-related criteria of Section 407.

Second, as the court below observed,

the discrimination and deprivation of mone-

tary benefits is more harmful to the fam-

ilies here than in Wiesenfeld or Goldfarb

because "[t]he Social Security benefits

denied in Wiesenfeld and Goldfarb were not

subsistence or medical care payments de-

signed to meet the basic needs of the

plaintiffs as are the benefits denied the

plaintiffs in the instant case." J3.S. of

Appellant Califano, App. 33A. Cf. Mathews v.

Eldridge, 424 U.S. 319(1976).

> eee RRS US we a tl be

44.

In sum, Section 407 creates a classifi-

cation that is both gender based and gender

biased. This has been the conclusion of

the lower courts, the Department of Justice

Task Force on Sex Discrimination and,

apparently, even the Attorney General of

Massachusetts, who has not appealed the dis-

trict court's holding on this issue. The

Court's precedents in Frontiero, Wiesenfeld

and Goldfarb lead unavoidably to a determin-

ation that the instant classification

; 17

invidiously discriminates on the basis of gender .—/

17/ The Solicitor General's attempt to dis-

tinguish Frontiero, Wiesenfeld and Goldfarb

from the instant case because the former

involved benefits distributed as compensation

for work or in relation to the contributions

of covered employees simply ignores the

Court's precedents. Brief for Appellant

Califano at 25-26. Although it is true

that Congress has wide latitude to create

classifications that allocate non-contractual

benefits under a social welfare program,

Weinberger v Salfi, 422 U.S. 749, 776-777

(1975), these must fall within constitutional

(Footnote continued on next page)

45.

B. The Section 407 Gender-Based Classifi-

cation Is Not Substantially Related

to any Important Governmental Objective.

1. The proper standard of review for

the Section 407 gender-based classifi-

cation is set forth in Craig v. Boren.

In Craig v. Boren, 429 U.S. 190 (1977),

this Court set forth the standard for test-

ing the constitutional validity of gender-

based classifications. The Court announced:

"To withstand constitutional challenge,

limits. Califano v. Goldfarb, 430 U.S.

at 210-211.

It is now plain that in cases

involving social welfare legislation

generally, male/female classifications

are impermissible, although classifica-

tions drawn on other bases can withstand

constitutional review. Compare Weinberger

v. Wiesenfeld, 420 U.S. 636, and Califano

v. Goldfarb, 430 U.S. 199, with Mathews

v. Lucas 427 U.S. 495 (1976), Mathews v.

DeCastro, 429 U.S. 181 (1976) and Califano

v.- Jobst, 434 U.S. 47 (1977). Surely the

explicit male/female classification in the

social welfare legislation at issue in this

case ranks with Wiesenfeld and Goldfarb, not

with Lucas, DeCastro and Jobst.

ia ris Mt i a

46.

previous cases establish that classifica-

tions by sex must serve important govern-

mental objectives and must be substantially

related to those objectives." Id. at 197.

Although the Solicitor General has raised

a question of the Court's consistent adher-

ence to this heightened scrutiny standard,see

Brief for Appellant Califano at 24-27,

thoughtful analysis of the Court's gender-

based discrimination decisions since

Reed v. Reed, 404 U.S. 71 (1971), leaves

no doubt that the standard is firmly estab-

lished. Indeed, the Solicitor General's

invitation to the Court to retreat to a

lesser standard is inexplicable in light

of the position tendered by his predecessor,

that it "is now settled that the Equal

Protection Clause of the Fourteentl Amend-

ment (like the Due Process Clause of the

47.

Fifth) does not tolerate discrimination on

the basis of sex." Memorandum for the

United States as Amicus Curiae at 8,

Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974).

From the start, the Court plainly

indicated that the objective of a gender-

based classification had és be more than

merely "legitimate." In Reed v. Reed,

404 U.S. 71, the Court held that the

"legitimate" objectives of reducing the

workload of probate courts and avoiding

familial controversy --both recognized

as "legitimate" -- were not sufficiently

important to justify resort to a sex-based

criterion in the appointment of estate

administrators .29/ Similarly, in Frontiero

18/ Professor Gunther discerned from the

Court's opinion in Reed that "some special

sensitivity to sex as a classifying factor

[had] entered into the analysis." Gunther,

The Supreme Court 1971 Term, Forword: In

Search of Evolving Doctrine on a Changing

Court: A Model for a Newer Equal Protection,

86 Harv. L. Rev. 1, 34 (1972).

48.

v. Richardson, 411 U.S. 677, the Court

held administrative convenience

insufficiently important to justify automatic

labeling of the wife, but not the husband,

of a service member as "dependent."

Explicit statement in Craig v. Boren,

of an elevated review standard for gender-

based classifications simply confirmed the

Court's evolving precedents. See also

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

Since Craig, the Court has utilized the

standard without reservation. In Califano

v. Goldfarb, 439 U.S. at 210-211, Justice

Brennan, speaking for a plurality, reiter-

ated the Craig formulation. The per curiam

opinion in Califano v. Webster, 430 U.S.

313, 316-17 (1977), expressly applies the

test, And most recently, Justice Brennan,

speaking for six members of the Court,

49.

confirmed the elevated review standard

of Craig for sex-kased classifications.

Orr v. Orr, No. 77-1119 (U.S. Mar. 5,1979).

In sum, sex-based classifications have

been given heightened scrutiny since Reed

v. Reed. The reason for close review was

well-stated by the court in Mathews v.

Lucas, 427 U.S. 495, 506 (1976): sex, like

race, is an "obvious badge" contributing

to "the historic legal and political dis-

crimination against women" that has been

severe and pervasive. Absent the

check of close review, the risk is high that

legislation distinguishing between men and

women based on "habit, rather than analysis

or actual reflection" will arbitrarily

restrict the options and activities of individ-

uals. Id. at 520. See Craig v. Boren, 429 U.S.

at 213 n.5; Califano v. Goldfarb, 430 U.S.

at 222 (Stevens, J.,concurring in both).

50.

2. Section 407 does not fairly advance

the objective it was enacted to serve.

(a) Legislative history demonstrates

that the governmental objective

of Section 407 was to alleviate the

harsh financial and social effects

of parental unemployment upon needy

families.

The paramount concern of the AFDC prog-

ram, originally proposed by President

Roosevelt to counter the effects of the

Depression, is the welfare of the chila .22/

The child entitled to aid was defined as

one who was needy and deprived of parental

support or care by reason of the death, absence

or incapacity of a parent .22/

19/ S. Rep. No. 628, 74th Cong., lst Sess.

16-17 (1935), quoting Message of the Pres-

ident Recommending Legislation on Economic

Security, House Doc. No. 81, 74th Cong.,l1st

Sess. 17 (1935).

20/ Children from two-parent households,

disadvantaged only by parental unemployment,

were presumed by the legisiators to be

benefited through "the work relief program

and still more through the revival of pri-

vate industry." S. Rep. 628, 74th Cong.,

lst Sess. 18 (1935).

51.

In 1961, in response to the nation's

economic recession and the concomitant

impact of increased unemployment, Presi-

dent Kennedy proposed two programs. The

first extended the duration of unemploy-

ment compensation to postpone the devasta-

ting impact on the family when those bene-

fits ran out. The second authorized

the Aid to Families with Dependent Child-

ren - Unemployed Parent (AFDC-U) program

and was heralded as "an interim amendment

to the aid to dependent children program

to include the children of the needy un-

employed." 22/ The declared purpose of the

AFDC-U program was "to make assistance...

available to needy families in which the

23/

breadwinner is unemployed."

21/H.R. 3864, 87th Cong.,lst Sess. (1961).

22/ President's Message on Economic Recovery

and Growth, Feb.2,1961, H.R. Doc. 81,87th

Cong.,lst Sess.,reprinted in 1961 U.S. Code

Cong. and Admin.News 1028,1033.

23/ H.R.3865, 87th Cong.,l& Sess. §2 (1961).

ee ee

52.

While the animating purpose of the

AFDC-U program is clear, hearings on the

1961 bill and on the 1962 bill to extend

the program for five years display the stereo-

typical notions Congress entertained about

the family an unemployed parent provision

would aid. Representative Wilbur Mills, the

sponsor of the 1961 bill, repeatedly referred

to the "needy child...whose father is unem-

ployed." The terms "wage earner," "“bread-

winner" and "father" were used interchange-

ably throughout hearings in 1961 and again

25/

in 1962. In spite of the use of these

terms, however, the original AFDC-U program

and the five-year extension were gender neutral.

24/ Temporary Unemployment Compensation and

Aid to Dependent Children of Unemployed

Parents: Hearings on H.R. 3864 and H.R.

3865 Before the House Committee on Ways

and Means, 87th Cong., lst Sess. 103-104

(1961) (emphasis added).

25/ See note 10 supra.

53.

The 1968 amendments to AFDC-U gave the

Department of Health, Education and Welfare

the authority to define unemployment, re-

quired a prior attachment to the labor force,

made the program permanent and expressly

conditioned benefits on the unemployment

of the father instead of a parent. ES/

These amendments were designed to correct

the flaw in the prior law under which the

states had the authority to define unemploy-

ment. The result had been that "[in] some

instances the definitions [were] very narrow

so that only a few people were helped. In

other states, the definitions [went] beyond

anything that Congress originally envis-

tome

The 1968 amendments were designed

to provide a uniform definition of unemploy-

26 42 U.S.C. §607.

27/7 H.R. Rep. No. 544, 90th Cong., Ist Sess.

108 (1967).

+ eee a

54.

ment.

As part of this effort, Congress rede-

fined the needy child as one deprived of

parental support by reason of the unemploy-

ment of the father. The change was described

by the House and Senate Reports as follows:

"This program was originally

conceived as one to provide aid for

children of unemployed fathers.

However, some States make families

in which the father is working but

the mother unemployed eligible.

This bill would not allow such

situations.

By changing the term parent to _ father,

Congress sought to assure that AFDC-U would

operate as intended from the start -- as a

program responsive to the deprivation caused

29/

by unemployment of a family wage earner.

28/ H. Rep. No. 544, 90th Cong., lst Sess.

108 (1967); S. Rep. No. 744, 90th Cong.,

lst Sess. 160 (1967), reprinted in 1967

U.S. Code Cong. and Admin. News 2834, 2997.

29/ See H.R. 3865, 87th Cong., lst Sess.

§2 (1961). See also Collins, Social Welfare -

Effect of Eligibility for Unemployment

[Footnote continued on next page.]

55.

It viewed the change as a means to correct

the abuse of the program by some states in

which aid had been provided to full-time

homemakers with no recent attachment to the

labor force. As the court observed in

Stevens v. Califano:

The problem with the program ...

was that the language chosen in

the original enactment only required

one parent to be unemployed. Inasmuch

as the AFDC-U program added two parent

families, said language permitted needy

families in which the "breadwinner" was

fully employed to receive benefits based

upon the unemployment of the "non-bread-

winner." This problem was aggravated

by the fact that before 1968, no prior

connection to the work force was requis-

ite to receipt of benefits. The purpose

of the amendment to Section 407, there-

fore, was to eliminate benefits to

families in which the breadwinner was

fully employed. 448 F. Supp. at 1321.

Compensation on AFDC-U Benefits, 78 W.Va.L.

Rev. 268, 268-269 n. 6 (1976); Guberman,

Sex Discrimination in Welfare Legislation,

12 Urban L. Ann. 125, 147 (1976). See also

Griffiths, Sex Discrimination in Income

Security Programs, 49 Notre Dame Zawyer 534

(1974).

ee ee

56.

In lieu of designing a gender-neutral

method of determining eligibility, however,

Congress sex-typed the characters in the

family, denominating fathers as financial

providers whose unemployment would hurt the

family and mothers as perennial homemakers

whose unemployment was iiaberent. By

drawing this sex line, Congress demonstrated

the very brand of narrow, sex-role thinking

this Court has consistently rejected as

invidiously assigning second-class status to

women.

(b) Section 407's gender classifi-

cation does not fairly advance the

legislative objective of protecting

families rendered needy by the

unemployment of a parent.

Despite the Westcott family's dire need

and despite Cindy Westcott's ability to

satisfy the employment-related criteria of

Section 407, her family was ineligible for

AFDC-U benefits. The sole reason was that,

under the statute, Cindy belonged to the wrong

sex.

STs

This gender-based exclusion is not

fairly related to the objective of aiding

children in families rendered needy by

parental unemployment. For the purposes

of a child-benefit program, family units

faced with identical needs resulting from

unemployment should receive identical bene-

fits. Using the sex of a parent as a test

for inclusion or exclusion is entirely

ama 30/

irrational; it fails as a "legitimate,

accurate proxy" for determining these

needs. Craig v. Boren, 429 U.S. at 204.

As the district court in this case

pointed out:

[I]n denying assistance when the

female working parent becomes unemploy-

ed, many families with needy children,

the targets of the A DC program, go un-

aided.... Section 407 creates two groups

30/ See also Guberman, Sex Discrimination

in Welfare Legislation, 12 Urban L. Ann,

125,150 (1976).

noe OO. a he

58.

of two parent families with needy

children who are without support

because the wage earner is unemployed:

one group where the wage earner is

male, and the second where the wage

earner is female. The first group may

receive AFDC-U and Medicaid, but the

second may not. J.S. of Appellant

Califano, App. 27A.

In terms of familial need because of

parental unemployment, the two are iden-

tical. In terms of furthering the goal

of alleviating this type of familial need,

the gender-based distinction is not ration-

al. In short, the state does not govern

impartially when benefits are allocated

unevenly and arbitrarily solely along sex

lines. See Craig v. Boren, 429 U.S. at 211

(Stevens J.,concurring).

3. Prevention of paternal desertion

was not the objective of the Section

407 gender classification. In any

event, the sex classification does not

fairly serve the need of deterring

paternal desertion.

59. : 60.

Aithough ameliorating the devastating eaitenn Ot Although President Kennedy spoke

economic effects of parental unemployment of father desertion as an undesirable effect

upon the family was the legislative objective of the AFDC eieenee. 2” he saw the alleviation

Congress pursued in the AFDC-U legislation, the of family hardship occasioned by unemployment

Solicitor General posits another purpose for as the core purpose of the AFDC-U program,

the program generally and the gender classifi- as did then-Secretary of Health, Education

cation in particular: preventing father and Welfare Ribicoff. Thus, in 1961 testimony

desertion. However, at the inception of the Secretary Ribicoff explained the purpose of

program, deterring father desertion was seen twin administration bills introduced that

by Congress as an effect rather than a year -- one the AFDC-U proposal and the other

purpose. Moreover, the gender line later an extension of the duration of unemployment

drawn substantially detracts from the program's compensation. That purpose was to "provide

desertion-preventing effect.

31/ President's Message on Economic Recovery

and Growth, Feb. 2, 1961, H.R. Doc. 81,

i : | 87 Cong. 1 Sess. 2(1961). Ironically, al-

ene | though both the AFDC program and the proposed

AFDC-U program were gender neutral, isis seaman

Kennedy's message reflected the pervasive habi

President Kennedy, in his 1961 message

to dependent children program, children are

i i | thought that fathers are wage earners an

eligible for assistance if their fathers are ee a homemakers by its use of —

" ° the only parent whose inability

deceased, disabled or family deserters. | father” as YP

™ | to provide would adversely affect the family.

ee ee Se | 32/ A number of legislators expressed similar

views. See, e.g., 107 Cong. Rec. 3769 (1961)

(remarks of Representative Ryan); 107 Cong.

Rec. 3765 (1961) (remarks of Representative

Baldwin); 107 Cong. Rec. 6401 (1961) (remarks

of Senator McCarthy).

eligible if his father is a needy unemployed

61.

a temporary program ... under which States

could provide financial assistance to fam-

ilies in need because of unemployment." =

The design, as the Secretary put it, was

"to help the States provide income maintenance

to needy families of the unemployed as part

of the administration's program to stimulate

the national economy and relieve unemployment

and hardships resulting therefrom. "27/

The Administration's view that one of

the effects of the original AFDC-U program

would be to deter paternal desertion may

well have been accurate,for when either

parent's unemployment can qualify the family

for aid, neither has an incentive to leave

home to enable the family to qualify for

AFDC based on his or her absence. But by

33/ Hearings on H.R. 3864 and 3865 Before House

Comm. on Ways and Means, 87th Cong., lst

Sess. 94 (1961).

34/ Id.

ee en, See nt) Oe

62.

drawing the 1968 gender line, Congress

drastically curtailed any incentive to re-

main with the family it had earlier foateret.”

By limiting eligibility to families in which

the father was unemployed, Congress once

again gave fathers the incentive to desert

every home in which need was caused by the

35 / The statistics on desertion cited by

the Solicitor General do not aid his case.

He asserts they show that the rate of

father desertion in AFDC families decreased

in those states which adopted the AFDC-U

program. However, all of the data are from

the period 1961-1967, when the AFDC-U pr6-

gram was gender neutral. While the 1961-

1967 gender-neutral statute may have had a

beneficial effect on the problem of father

desertion, that is not germane to the

Solicitor's argument. Beyond question, 196l-

1967 statistics fail to demonstrate that

the gender line first introduced in the 1968

law in any way furthers the hypothesized

legislative objective.

63.

mother's unemployment .27 It also gave un-

employed mothers an incentive to desert not

present in the earlier law. In short,

Congress' only concern for even-handedness

was between fathers who, but for monetary

incentive, would desert their families and

those who out of "conscience and love," .

would remain.>/

36/ The weakness in the Solicitor General's

argument attributing to the gender line a

purpose to deter desertion is further in-

dicated in the legislative history surround-

ing the 1968 amendment. For example, in the

Senate debate on whether the AFDC-U program

should be mandatory rather than permissive

for all states, although Senators Harris

and Kennedy acknowledged the program's

desirable side effect of preventing paternal

desertion, no mention was made of accomplish-

ing such an effect by drawing the gender

re Ra Meat Cong. Rec. 33193 (1967)

remarks of Senator Harris); 113 Cona. °

33194 (1967) (remarks of Senator “sce