Amicus Brief — Califano v. Westcott

FOR ARGUMENT

Supreme, Court, U. 2.

EILEQ@

MAR 20 1979

tates

MICHAEL RODAK, JRCLERK

ntl

Supreme Court of the Unit

October Term, 1978

No. 78-437

JOSEPH A. CALIFANO, JR., Secretary of

Health, Education and: Welfare,

Appellant,

VS.

CINDY WESTCOTT, et al.,

Appellees.

On APPEAL FROM THE UNITED STATES DISTRICT COURT

For THE DISTRICT OF MASSACHUSETTS

BRIEF OF AMICI CURIAE

CATHY STEVENS, ROSALIE McROBERTS

AND SONJA SMITH

STEPHAN LANDSMAN

CONSTITUTIONAL LITIGATION CLINIC

Cleveland State University

College of Law

Cleveland, Ohio 44115

ANTHONY TOUSCHNER

Summit County LEGAL Arp SOCIETY

34 South High Street

Akron, Ohio 44308

Counsel for Cathy Stevens, et al.

CHARLES E, GUERRIER

BARBARA KAYE BESSER

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Counsel for Sonja Smith

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

I ss inlaeeacnlionio

II.

III.

The Legislative History of the Sex-Based Dis-

crimination in § 407 Demonstrates That It

Serves No Important Governmental Objective

and That It Is the Result of Sexually Stereo-

typed Thinking on the Part of Congress ............

Section 407 Deprives Female Wage Earners of

Rights Guaranteed Under the Constitution ....

A. Section 407 imposes increased burdens on

women attempting to enter the workforce

and deprives women workers of protection

for their families which men receive as

a result of their employment ........................

B. Section 407 is invalid because it is prem-

ised upon and perpetuates sexual stereo-

C. The invidious sexual discrimination

worked by § 407 cannot be defended on

the ground that the section is part of a

social insurance program. .........0.........::.200+

ES SA RTS aa NE Sie SR Re a

10

10

11

If

TABLE OF AUTHORITIES

Cases

Batterton v. Francis, 432 U.S. 416 (1977) -.....-.-.2.2:20--0-+- 4,7

Browne v. Califano, No. 77-1249 (E.D. Pa., June 9,

1978) appeal docketed sub nom., Califano v. Browne,

BG NE les pid sai niet hina dccihettcrpsvadidhnapenbsbeiscadindadoedbbedantnaiied 4

Califano v. Goldfarb, 430 U.S. 199 (1977) ....6, 10, 13, 15, 16

Craig v. Boren, 429 U.S. 190 (1976) -20......-.-eeeeceeeeceeeeeees 13, 14

Frontiero v. Richardson, 411 U.S. 677 (19738) ...............- 11,13

Jablon v. Secretary of Health, Education and Welfare,

399 F. Supp. 118 (D. Md. 1975), aff'd 430 U.S. 924

a saidveci kucccikcbonk-digishiscbaip suieapltoa beesineseselinbehicanigeabeiebens 11

King v. Smith, 392 U.S. 309 (1968) -......0.02..22-.-eeeeceeeeeeeees 5, 6

Mathews v. Lucas, 427 U.S. 495 (1976) -20000... eee 15, 16

GaP 8. IR, cccwnsee Wess chadtees , 47 US.L.W. 4224 (1979)

‘aside ececsacicaebe sialidilsapipseagondcatonibektlaanatidarssene 6, 8, 10, 11, 12, 13, 14

Philbrook v, Glodgett, 421 U.S. 707 (1975) 2.0.2.2... 4,8

Reed v. Reed, 404 U.S. 71 (1971) 22......eeeeeeeeeeeees seston 12, 13, 14

San Antonio Indep. School District v. Rodriguez, 411

Matti ts. CIPI. ccebihctpecesndnsciehctesioniioncnpingdavidiamedebasieplilanantiadaeabaasta 16

Schwegmann Brothers v. Calvert Corp., 341 U.S. 384

(Concurrence of Mr. Justice Jackson) (1951) ........ 6

Sharp v. Westcott, No. 78-689 ..............2.c..c-cscesascecssascecserees 4

Stanton v. Stanton, 421 U.S. 7 (1975) 20.2. eeeeeeeeeeeee 13

Stevens v. Califano, 448 F. Supp. 1313 (N.D. Ohio

1978), appeal docketed sub. nom., Califano v. Stev-

SO Fk Ee nh aitivasonibiaisinicies 2, 4, 7, 8, 9,17

U. S. Department of Agriculture v. Moreno, 413 US.

SE - REED : ssknenpicbistanscsicicvenibavisataigreiintahdninipitatacnlabdaaslatinedl 16

mm

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........ 6, 10,

15, 16

Westcott v. Califano, No. 77-222-F (D. Mass., April 20,

1978), prob. juris. noted sub nom., Califano v. West-

GORE, BUG. TRIS : cheiksicsninjoiassianecnunsapenlistcimiaies 2,4

Statutes

Sash, GE Diba GT, TERE, FT, Fe cesses catisnssccnactcetccciinsitinaseasinins 5

Act of July 26, 1962, 76 Stat. 193 ...........00:c0cescecccccsescccseseeees 7

42 U.S.C. §§ 301 et seq. (Social Security Act of 1935) ... 5

Be es eee EN were ce passim

© DRIED. cceasksncesmnsipeniarsecivinctscsocapaeniscideabbbantcasnaeis 5

Other

Davidson, Welfare Cases and the “New Majority”:

Constitutional Theory and Practice, 10 Harv. Crv.

RiGHTS—CIv. Lis. REV. 513 (1975) 20... cece eececeeneeceeee 16

Frankfurter, Some Reflections on Reading Statutes,

47 Cot. L. Rev. 527 (1947) ........... 6

Hart & Sacks, THE LEGAL Process, 1242 ‘ Tent, Ed.

RUUD <scssusssnsianitahaiiutnetthapmebiaiiadepdsunnddaapalaabitentbecstiide 6

H.R. Rep. No. 28, 87th Cong. 1st Sess. 1 (1961) .............. 7

H.R. Rep. No. 544, 90th Cong. Ist Sess. 108 (1967) ........ 8

H.R. Rep. No. 615, 74 Cong. Ist Sess. 10 (1935) .............. 5

President’s Message to Congress on Economic Growth

and Recovery, 1961 U.S. Code Cong. and Admin.

SR FI evcinsn scintillation 7

Ohio Department of Public Welfare, FY 1980- 1981,

Biennial Budget Request, House Subcommittee

Hearings, Answers to Legislative Budget Office’s

Questions Relative to Public Assistance Accounts,

February 21, 1979, Question 1, p. II/9 .......0.000000002...... 17

Iv

S. Rep. No. 744, 90th Cong. 1st Sess. 160 (1967) ............

Statement of Secretary of Health, Education and Wel-

fare, Abraham Ribicoff in Hearings on H.R. 4884

Before the House Comm. on Ways and Means, 87

Cong. Ist Sess. 94-95 (1961) ou... ceccctecccesceseseeeeee

L. Tribe, Unraveling National League of Cities: The

New Federalism and Affirmative Rights to Essential

Government Services, 90 Harv. L. Rev. 1065 (1977)

16

Supreme Court of the United States

October Term, 1978

No. 78-437

JOSEPH A. CALIFANO, JR., Secretary of

Health, Education and Welfare,

Appellant,

Vs.

CINDY WESTCOTT, et al.,

Appellees.

On APPEAL FROM THE UNITED STATES DistTRIcCT COURT

For THE DISTRICT OF MASSACHUSETTS

BRIEF OF AMICI CURIAE

CATHY STEVENS, ROSALIE McROBERTS

AND SONJA SMITH

INTEREST OF AMICI CURIAE*

This brief is filed on behalf of Cathy Stevens, Rosalie

McRoberts and Sonja Smith, three female residents of

Ohio who have supported their respective families through-

out their employment careers. When circumstances be-

yond their control led to their unemployment, they ex-

hausted all resources available to them and thereafter made

application for assistance pursuant to the Aid to Families

*Consent to the filing of a brief amicus curiae has been ob-

tained from all parties and has been lodged with the Clerk’s

office.

D

with Dependent Children-Unemployed Fathers Prosram

(AFDC-U) In both the Stevens and McRoberts <ases,

the families were seeking medical as well as monetary

assistance. This was of special concern to the Stevens

family because their daughter was suffering from impetigo

and each of the adults faced a potentially serious problem

with stomach ulcers. In ail three cases the application

for assistance under § 407 of the Social Security Act,

42 U.S.C. § 607 (hereafter § 407), was denied by the

Ohio Department of Public Welfare because the family

breadwinner was the female rather than the male parent.

Solely because Cathy Stevens, Rosalie McRoberts and

Sonja Smith were the breadwinners in their respective

families, all family members were totally excluded from

participation in the AFDC-U program. All three joined

in a class action challenging the constitutionality of § 407

and the implementing state and federal regulations. In

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

their challenge to the statute was upheld. While the State

of Ohio elected to alter its program in accordance with

the decision of the district court, Secretary Califano ap-

pealed that decision directly to this Court. Califano v.

Stevens, No. 78-449, appeal docketed September 15, 1978.

Probable jurisdiction has not as yet been noted.

Since a decision by this Court in Califano v. Westcott,

No. 78-437, will affect the scope of § 407 and thereby

the rights of Cathy Stevens, Rosalie McRoberts, Sonja

Smith, and the class they represent, this brief amici

curiae is submitted. Amici urge this Court to affirm the

decision rendered by the United States District Court for

Massachusetts in Califano v. Westcott, No. 78-437.

Amici also believe that the arguments of appellant

concerning the appropriate test to be applied when scruti-

nizing sex-based classifications seriously threaten to under-

3 |

mine the prior rulings of this Court concerning the rights

of women. Amici, therefore, submit this brief in support

of this Court’s prior rulings in cases involving sex-based

classifications.

ARGUMENT

I. Introduction

The facts make clear beyond cavil the operation of

the AFDC-U program. Section 407 denies federal financial

assistance to families with children who are deprived of

parental support or care solely because of a mother’s unem-

ployment, while at the same time providing AFDC-U pay-

ments to families with children who are deprived of pa-

rental support or care solely because of a father’s unem-

ployment. The regulations implementing § 407, promul-

gated by the Secretary of Health, Education and Welfare,

do not permit AFDC-U payments to be made to families

with needy children who are deprived of parental support

or care solely because of the mother’s unemployment.

However, they do permit AFDC-U payments to be made

to families with needy children who are deprived of pa-

rental support or care solely because of the father’s unem-

ployment.

The unalterable effect of the federal scheme is that

a male breadwinner, who meets the requirements, qualifies

his family for AFDC-U benefits, but an equally deserving

female breadwinner, coraplying with the same require-

ments, can never qualify her family for such benefits.

Amici will demonstrate that there is no important govern-

mental objective served by this sex-based classification

and that it is the result of sexually stereotyped thinking

on the part of Congress.

Il. The Legislative History of the Sex-Based Dis-

crimination in § 407 Demonstrates That It Serves

No Important Governmental Objective and That

It Is the Result of Sexually Stereotyped Thinking

on the Part of Congress

The objective of § 407 was to provide assistance to

needy families with dependent children whose deprivation

was caused by the unemployment of a parent. See Bat-

terton ~. Francis, 432 U.S. 416, 421 (1977). Congress did

not intend through the adoption of § 407 to deal with

the flight of fathers from impoverished, but intact house-

holds. This Court, as well as three United States Districts

Courts, are in agreement on this point.1 Even Alexander

Sharp, Commissioner of the Massachusetts Department of

Public Welfare, and appellant in Sharp v. Westcott, No.

78-689, recognizes this (Sharp Br. 14-26). Nevertheless,

appellant doggedly asserts before this Court that § 407

was enacted to reduce the incentive for unemployed fathers

to desert their families (Br. 11-24). Appellant’s insistence

on this point is understandable as his entire defense of

§ 407 is premised upon the dubious interpretation he

suggests. An analysis of the statutory history of § 407

demonstrates the error in appellant’s position.

The Aid to Families with Dependent Children Program

(AFDC) was established by the Social Security Act of

1. In Philbrook v. Glodgett, 421 U.S. 707, 710-711, n.6 (1975),

Justice Rehnquist, writing for a unanimous Court, stated that

the motivation for § 407’s provision of benefits exclusively to

fathers was Congress’ “displeasure with the state practice which

had made ‘families in which the father is working but the mother

is unemployed eligible’’’ for Aid to Families with Dependent

Children (AFDC) benefits. See also Stevens v. Califano, 448

F. Supp. 1313 (N.D. Ohio 1978), appeal docketed sub nom., Cali-

fano v. Stevens, No. 78-449; Westcott v. Califano, No. 77-222-F

(D. Mass., April 20, 1978), prob. juris. noted sub nom., Califano

v. Westcott, No. 78-437; Browne v. Califano, No. 77-1249 (E.D.

_ oo - 1978), appeal docketed sub nom., Califano v. Browne,

o. 78-603.

1935, 42 U.S.C. §§ 301 et seq. It was designed to assist

“one clearly distinguishable group of children”; those who

had been deprived of the support of a parent due to death,

continued absence or physical or mental incapacity of that

parent. H.R. Rep. No. 615, 74 Cong. Ist Sess. 10 (1935);

42 U.S.C. § 606(a); see King v. Smith, 392 US. 309,

328-329 (1968). The loss of a parent of either sex in

one of the enumerated ways entitled (and still entitles)

the deprived child to claim AFDC assistance.”

In 1961 Congress extended the coverage of the AFDC

program to include children in intact families who were

deprived of support because gf the unemployment “of a

parent”. Act of May 8, 1961, 75 Stat. 75. As had previously

been the case in the AFDC scheme, Congress established

a sex-neutral prerequisite (unemployment “of a parent’’)

for AFDC-U eligibility. Despite the utilization of sex-

neutral terminology, appellant argues that the 1961 legisla-

tion was intended by Congress as a means of dealing

with paternal desertion of welfare families. This argument

does violence to both the language of the statute and

its history.

The AFDC-U program, as originally enacted, was

woven into the pattern previously established to assist

children deprived of parental support. Like its precursors,

AFDC-U was sex-neutral. From all appearances, the ob-

jective of the program was to provide assistance to children

who had suffered a deprivation due to the unemployment

of a parent, not to lure fathers into remaining in welfare

homes. If the objective of this legislation was to deal

2. It should be noted that this sex-neutral result was ac-

complished despite the articulated inclination of Congress to

render assistance to families deprived of a “breadwinner”, “wage

earner” or “father”. See King v. Smith, 392 U.S. at 328 and

n.25, 26, 27 and 28 (accompanying text).

specifically with paternal desertion rather than parental

deprivation, the use of a sex-neutral -'!sssification was

a most curious solution. To <xplain this anomaly one

must hypothesize either an oversight in drafting® or a

congressional understanding of the term “parent” as the

equivalent of the word ‘‘father’.* In either case, the lan-

guage of the text would be ignored in favor of a conflicting

interpretation. Such a reinterpretation is not justified un-

less the legislative history provides unambiguous support

for it.®

The legislative history does not support appellant’s

theory. Rather, it demonstrates that the original AFDC-U

program was conceived as an emergency measure of short

duration to deal with widespread unemployment in a pe-

3. Appellant does not go so far as to claim such an error

in drafting but he does intimate the possibility. In his brief it

is suggested that Congress adopted broader language than was

necessary, perhaps because of the desire of some Congressmen

for a broader program than Congress “really” wanted. While

this theory is convenient, it ignores the language of the statute

and is without support in the history of the AFDC-U program.

See discussion, infra, accompaniying footnotes 5-11.

4. Because of the frequent confusion of the terms “father’’,

“breadwinner” and ‘wage earner” in congressional deliberations

concerning other AFDC programs, this suggestion may not be

entirely unfounded. See, e.g., King v. Smith, 392 U.S. at 328

(1968). However, such a solution offers little solace to appel-

lant, because as shown infra at Section III(B), it is nothing more

nor less than sexual stereotyping of the sort repeatedly con-

demned by this Court. See Orr v. Orr, ........ GI: esenescs , 47 U.S.L.W.

4224 (1979); Califano v. Goldfarb, 430 U.S. 199 (1977); Wein-

berger v. Wiesenfeld, 420 U.S. 636 (1975).

5. For views counselling caution in the use of legislative

history and decrying the manufacture of history, see, e.g., Schweg-

mann Brothers v. Calvert Corp., 341 U.S. 384, 395-397 (Concur-

rence of Mr. Justice Jackson) (1951); Frankfurter, Some Reflec-

tions on Reading Statutes, 47 Cot. L. REv. 527, 543 (1947); See

also HART & SACKS, THE LEGAL PROCESS, 1242-1286 (Tent. Ed.

1958). The approach to legislative history utilized by appellant

conflicts with the precepts set forth in these sources.

riod of serious economic recession. Furthermore, this

Court has characterized the original AFDC-U enactment

not as a scheme to keep welfare fathers with their families,

but as an effort designed to fill the gap in assistance

created by the exhaustion of unemployment benefits. See

Batterton v. Francis, 432 U.S. at 429. The preponderance

of the historical evidence demonstrates that the original

enactment was designed along with other measures to al-

leviate “the distress arising from the unsatisfactory per-

formance of the economy.”

In 1962 the AFDC-U program was extended for a

period of five years without relevant change. Act of July

25, 1962, 76 Stat. 193. Then in 1967, the AFDC-U program

was modified by the adoption of overtly sex-conscious

language. Benefits under the program would henceforth

be restricted to a child who had been deprived of support

by reason of the unemployment “of his father”. 42 U.S.C.

§ 607. Appellant insists that this change was undertaken

by Congress as part of the effort to “eliminate the struc-

tural incentive in the AFDC program that induced paternal

desertion.” (Br. 19). This suggestion is without merit.

The change from sex-neutral to sex-conscious terminology

in 1967 did not increase the benefits already available

to fathers either directly or indirectly. Nor did it establish

disincentives for paternal desertion. Its primary effect

6. The original enactment, intended to last only fifteen

months, was proposed as part of an overall relief package along

with a bill to extend unemployment benefits. H.R. Rep. No. 28,

87th Cong. Ist Sess. 1 (1961). See also Statement of Secretary of

Health, Education and Welfare, Abraham Ribicoff in Hearings

on H.R. 4884 Before the House Comm. on Ways and Means, 87

Cong. Ist Sess. 94-95 (1961).

7. President’s Message to Congress on Economic Growth and

Recovery, 1961 U.S. Code Cong. and Admin. News 1028. For

additional evidence upon which this conclusion is based, see

Amici’s Brief in Support of their Motion to Dismiss or Affirm in

Califano v. Stevens, No. 78-449, at 8-12.

was to deprive mothers of the opportunity they had pre-

viously enjoyed to qualify their families for AFDC-U as-

sistance. Concomitantly, it established an incentive for

parental desertion that had not previously existed. In

those families where the “breadwinner” mother became

unemployed, her intact family was rendered ineligible for

AFDC-U assistance. In such a situation, the 1967 change

encouraged one parent to desert so as to qualify the remain-

ing family members for AFDC-U assistance. See Stevens

v. Califano, 448 F. Supp. at 1322.

Given this result, some other reason must be identified

as the basis for this change in the AFDC-U program.*®

The legislative history again establishes the real reason

for this revision. Congress was aware that certain states

were permitting families to obtain AFDC-U benefits when

one parent was employed and the other unemployed. H.R.

Rep. No. 544, 90th Cong. Ist Sess. 108 (1967); S. Rep.

No. 744, 90th Cong. Ist Sess. 160 (1967). Providing as-

sistance to families with a working parent was unaccept-

able to Congress and the 1967 amendments were motivated

by a Congressional desire to restrict this practice. See

Philbrook v. Glodgett, 421 U.S. 707, 710-711, n.6 (1975).

However, in enacting new limitations Congress engaged

in the most transparent sort of sexual stereotyping.

Fathers we:e assumed to be breadwinners and their unem-

ployment was made the sine qua non for assistance.

Mothers were assumed to be homemakers and their em-

ployment was viewed as irrelevant in determining whether

a child had been deprived of support.

Appellant attempts to marshall support for his “desert-

ing father” theory from various 1967 House and Senate

8. See Orr v. Orr, ........ MAMA wugarvas , 47 U.S.L.W. at 4227, n.10

(1979).

eS

Reports, as well as the comments of a number of legislators.

However, absolutely none of this material indicates why

or how converting a previously sex-neutral program to

a sex-conscious one would serve to keep fathers at home.

The Senate Report upon which appellant places reliance

specifically stated that resolution of the problem of desert-

ing fathers was a subject in need of continued congressional

study rather than legislative action.°

Appellant also relies upon several pages of statistics

and scientific report citations concerning abandoning

fathers as support for this thesis. However, none of this

material was presented to Congress.’ One searches the

legislative history in vain for any discussion of the MoynI-

HAN Report or its progeny. The reason these materials

are not mentioned is that they were not of central concern

to Congress when it acted. Appellant has indulged in

the fabrication of a convenient post hoc rationalization

with respect to the history and aims of § 407. Such a

rationalization is not supported by the facts and cannot

serve as a basis for interpretation of § 407.

9. “The Committee is concerned about the effect that the

absence of a State program for unemployed fathers has on family

stability. Where there is no such program there is an incentive

for an unemployed father to desert his family in order to make

them eligible for assistance. This will be a matter of continuing

study by the committee.” S. Rep. No. 744, 90th Cong. Ist Sess.

160 (1967) (emphasis added). This remark was brought to ap-

pellant’s attention in Amici’s Motion to Dismiss or Affirm in Cali-

fano v. Stevens, but appellant has scrupulously avoided making

comment upon its obvious inconsistency with the arguments he

makes before this Court. See Motion to Dismiss or Affirm in

Califano v. Stevens, No. 78-449, 13, n.11.

10. The only statistical reference to abandonment in the

whole of the legislative history is a brief reference to the fact that

19% of AFDC recipient families had been deserted by a father.

None of the figures appellant laboriously details on pages 30 and

31 of his brief were presented to Congress despite their apparent

availability and relevance to the kind of inquiry appellant now

contends Congress was undertaking.

10

III. Section 407 Deprives Female Wage Earners of

Rights Guaranteed Under the Constitution

A. Section 407 imposes increased burdens on

women attempting to enter the workforce and

deprives women workers of protection for

their families which men receive as a result

of their employment

Appellant would have this Court believe that § 407

does not achieve its objectives “at the needless expense

of women.” (Br. 36). This contention is incorrect in a

number of respects. Most basically, § 407 erects a barrier

which keeps women from becoming full participants in

the workforce. It does this in family units in which a

wife takes on the responsibilities of “providing a home

and its essentials” while her spouse (because of skills,

health or inclination), undertakes the necessary homemak-

ing responsibilities. Cf. Orr v. Or7, ........ _) ae , 47

U.S.L.W. at 4227. If she becomes unemployed and cannot

obtain unemployment compensation, her prior work efforts

cannot qualify her family for AFDC-U assistance. Were

this same woman to stay home and compel her husband

to perform the breadwinner’s function, AFDC-U coverage

would be vouchsafed automatically. The lesson is clear.

If there is a need in an intact family to have homemaker

functions performed, it is up to the wife to perform them,

The alternative choice jeopardizes the survival of the fam-

ily. Section 407 not only penalizes the working wife in

intact families, it coerces women in such families to avoid

the workforce and to restrict their lives to the role of

homemaker..

This disparity violates the rule established by this

Court in Weinberger v. Wiesenfeld, 420 U.S. at 645 (1975),

and reiterated in Califano v. Goldfarb, 430 U.S. at 206-

11

207 (1977), that women who work are entitled to receive

the same protection for their families which men receive

as a result of their employment. See also, Orr v. Orr,

eseaies US. ......... 47 U.S.L.W. 4224 (1979); Frontiero v. Rich-

ardson, 411 U.S. 677 (1973).

Appellant contends that any burden caused by § 407

falls equally on women, men and children gathered in

intact families and is, therefore, not a sex-biased burden.

This argument is merely a simplistic restatement of the

facts confronting this Court: some needy families receive

benefits while others do not. It is the legitimacy for

distinguishing between the two classes of needy families

which forms the basis for the challenge to § 407.

In analogous situations this Court has invalidated sex-

conscious statutes which made it more difficult for a wo-

man’s family than a man’s family to receive assistance

or benefits. In Frontiero v. Richardson, 411 U.S. 677

(1973), the plaintiff was denied certain medical benefits

and an increased housing allowance because of a proof-

of-dependency rule imposed only on female members of

the “uniformed forces.” ‘The Court overturned this dis-

criminatory program although its impact was felt

equally by both plaintiff and her husband. A similar

result was reached in Jablon v. Secretary of Health, Edu-

cation and Welfare, 399 F. Supp. 118 (D. Md. 1975), aff’d

430 U.S. 924 (1977). In light of these holdings the argu-

ment that equality of injury justifies a sex-biased rule

should be rejected.

B. Section 407 is invalid because it is premised

upon and perpetuates sexual stereotypes

The § 407 classification is ineluctably sex-based and

sex-biased. It conveys a familiar message: the breadwin-

ner who counts is male. The message is delivered in

12

its most extreme form. A female, despite her demonstrated

breadwinner capacity, is not even counted second. She

is not counted at all. If this is not sex-role stereotyping,

nothing is.

As appellant’s analysis demonstrates, § 407 differenti-

ates between two classes of identically situated former

breadwinners: the father who stays with his spouse and

children because of “conscience and love” (Br. 14, 17),

and the mother who remains with her family for the

very same reasons. The man’s exemplary conduct attracts

a monetary benefit for the family, the woman’s does not.

The sole justification for rewarding father’s love while

taking mother’s for granted is the allegedly “solid statistical

evidence” (Br. 23) that most women will voluntarily stay

at home while, absent a financial incentive, men will not.

On the basis of this empirical evidence, the sex-based

generalization is applied. Fathers, because of their sex,

qualify their families for benefits whether or not payment

is needed to induce the socially desired conduct. Mothers,

because of their sex, disqualify their families.

Decisions of this Court establish, as appellant admits,

that “no law may be based on sexual stereotypes.” (Br.

26). As appellant would now have it, stereotype would

mean “unsupported velief,’ an assumption not supported

by “solid statistical evidence.” (Br. 33). But this Court has

rejected this definition.

For example, while it carn be documented that men

are generally more active than women in business affairs,

a sex-based classification premised upon such evidence

is invalid. See Reed v. Reed, 404 U.S. 71 (1971). Further,

it can be shown that most married women are dependent

while most married men are not. Yet a number of sex-

based classifications premised on this notion have been

voided. See Orr v. Orr, ........ Ae Speer , 47 U.S.L.W. 4224

13

(1979); Frontiero v. Richardson, 411 U.S. 677 (1973); Cali-

fano v. Goldfarb, 430 U.S. 199 (1977).

The insidious practice this Court has consistently con-

demned is the lawmaker’s habit of basing statutory schemes

on loose-fitting characterizations and outdated misconcep-

tions concerning the role of females in the home rather

than in the marketplace and world of ideas. Orr v. Orr,

sibaeen US. ......... 47 US.L.W. 4224 (1979); Craig v. Boren,

429 U.S. 190 (1976); Stanton v. Stanton, 421 U.S. 7 (1975).

Patterning official policy on “the way most men [or wo-

men] are” shores up the stereotype and casts the weight

of government against the man or woman who would

break the sex-typed mold. As this Court recently stated,

where “the [government’s] compensatory and ameliora-

tive purposes are as well served by a gender-neutral clas-

sification as one that gender-classifies and therefore car-

ries with it the baggage of sexual stereotypes, the [gov-

ernment] cannot be permitted to classify on the basis of

een.” ONE BOT, msec <7? . Saaeeeee , 47 U.'S.L.W. at 4228.

What is apparent is that appellant misconstrues the

meaning of sex stereotyping. It is not myths and false

impressions which are rejected by this analysis but rather

a standardized mental picture which presents an oversim-

plified image of the roles and abilities of males and femzies.

To adopt the test that appellant now seems to espouse

would be to undercut the long line of sex-based classifica-

tion cases previously decided by this Court. As established

in Reed v. Reed, 404 U.S. at 76 (1971), sex-based classifica-

tions “must be reasonable, not arbitrary, and must rest

upon some ground of difference having a fair and substan-

tial relation to the object of the legislation, so that all

persons similarly situated shall be treated alike”. As re-

stated in Craig v. Boren, 429 U.S. at 197 (1976), this

test requires that “classifications by gender must serve

14

important governmental objectives and must be substanti-

ally related to the achievement of those objectives.” Ap-

pellant would have this Court permit the government to

fabricate any sort of post hoc theory in defense of chal-

lenged sex-based classifications so long as the theory could

be supported by some statistical proof. This is not the

approach employed by this Court. It foregoes thorough

analysis of the actual objectives of the legislation and

does not require a determination as to whether the statute

actually achieves its objectives. In the present case, appel-

lant’s analysis neither honestly identifies the government

objectives of the AFDC-U program, nor explains how the

sex of the unemployed parent furthers the objective he

fabricates. The concoction of a theory and some statistical

proof is not enough to save a sex-based classification under

the tests of Reed, Craig and Orr. Such a test, if adopted,

would signal a return, albeit sub silentio, to the “any

rational basis” standard no longer applicable in cases of

gender discrimination. See Craig v. Boren, 429 U.S. at

210-211, n.* (1976) (Powell, J. concurring).

“a

C. The invidious sexual discrimination worked by

§ 407 cannot be defended on the ground that

the section is part of a social insurance pro-

gram

Perhaps at the core of appellant’s contentions! is

the argument that the sexual discrimination worked by

§ 407 is perrnissible because it facilitates the administra-

tion of a social insurance program. This argument is ob-

11. It is hard to say with certainty what appellant’s basic

contention is. It may be that the sexual discrimination worked

by § 407 is acceptable because it is incorporated in the -Social

Security Act (Br. 39-40). Or, it may be that “no law may be

based on sexual stereotypes.” (Br. 26). Or, it may be that the

evil to be condemned in sex discrimination cases arises when a

(Continued on following page)

15

viously premised upon this Court’s holding in Mathews

v. Lucas, 427 U.S. 495 (1976) and on Mr. Justice Rehn-

quist’s comments in his dissenting opinion in Califano v.

Goldfarb, 430 U.S. at 225. There are, however, a number

of problems with this theory. First, it must be noted

that such a theory has never been accepted by this Court

in any case involving sex-based classifications. Quite the

contrary, as the plurality opinion in Goldfarb indicates,

there is no reason for giving “special deference” to classi-

fications established in social insurance programs like the

Social Security Act. Califano v. Goldfarb, 430 U.S. at

204, n.4. This teaching simply reiterates the principle

established in Weinberger v. Wiesenfeld, 420 U.S. 636

(1975), that classifications established in the Social Se-

curity Act are open to the same level of scrutiny as matters

not part of that legislative scheme. Certainly no general

rule requiring approval of sex-based classifications in social

insurance schemes can be found in Goldfarb or Wiesenfeld,

Further, § 407 is distinguishable from legislation at

issue in cases like Mathews v. Lucas, 427 U.S. 495 (1976).

In Lucas the challenged section did not operate to exclude

absolutely any class of recipients from assistance. Its

thrust was to require illegitimates to prove their depen-

dency in order to qualify for benefits. In the present

case there is plainly and simply no way that a family

with a female breadwinner can qualify for AFDC-U.. This

absolute exclusion works a harm precisely like that con-

demned in Wiesenfeld, where the plaintiff was absolutely

Footnote continued—

“gender based distinction produce[s] an unequal division of ben-

efits between men and women that [does] not serve any sub-

stantial government interest.” (Br. 37). Or it may be any one

of half a dozen other variants invented by appellant to avoid

confronting this Court’s standard applicable in cases challenging

sex bias in the Social Security Act. Weinberger v. Wiesenfeld,

420 U.S. 636 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977).

16

excluded from participating in the benefit scheme in ques-

tion. See Weinberger v. Wiesenfeld, 420 U.S. 636 (1975);

see also Califana v. Goldfarb, 430 U.S. at 299 (Rehnquist,

J., dissenting). Where a classification absolutely deprives

citizens of benefits upon which they rely for support, this

Court has on several occasions indicated its intention to

focus carefully on the legislative choice made and to reject

those choices which are not justified by important govern-

mental objectives.’* No basis for the adoption of a con-

trary standard is articulated by appellant in the present

case.

The reason usually given to justify classifications like

that upheld in Lucas and that championed by the dissent

in Goldfarb is that important considerations of administra-

tive convenience are served by the rule established. See,

e.g., Mathews v. Lucas, 427 U.S. at 509 (1976). In the

present case appellant can advance no such argument be-

cause there is no administrative advantage to the sex bar-

rier erected by § 407. No hard issues concerning proof

of claim are avoided by the rule and no logically secure

discrimination between bona fide recipients and the unde-

serving is facilitated. The only end served is the exclusion

of a number of admittedly needy claimants from public

assistance simply on the basis of the sex of the working

parent. The number of such needy individuals is not

so great,’* and the need is not so difficult to assess, as to

justify a rule of complete exclusion.

12. See Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); U.S.

Department of Agriculture v. Moreno, 413 U.S. 528 (1973); David-

son, Welfare Cases and the “New Majority”: Constitutional

Theory and Practice, 10 Harv. Civ. Richts—Civ. Lib. Rev. 513,

541-545 (1975); see also San Antonio Indep. School District v.

Rodriguez, 411 U.S. 1, 37 (1973); L. Tribe, Unraveling National

League of Cities: The New Federalism and Affirmative Rights to

Essential Government Services, 90 Harv. L. Rev. 1065 (1977).

13. Only 147 of the 48,000 individuals who received AFDC

benefits in Ohio from April 1978, through January 1979, received

(Continued on following page)

17

CONCLUSION

The judgment of the United States District Court for

the District of Massachusetts should be affirmed.

Respectfully submitted,

STEPHAN LANDSMAN

CONSTITUTIONAL LITIGATION CLINIC

Cleveland State University

College of Law

Cleveland, Ohio 44115

(216) 687-2529

ANTHONY TOUSCHNER

SumM™mi1tT County LEGAL Alp SOCIETY

34 South High Street

Akron, Ohio 44308

(216) 535-4191

Counsel for Cathy Stevens, et al.

CHARLES E, GUERRIER

BARBARA KAYE BESSER

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

(216) 621-3443

Counsel for Sonja Smith

Dated: March 12, 1979

Footnote continued—

these benefits as a result of the order in Stevens v. Califano, 448

F. Supp. 1313 (N.D. Ohio 1978). Ohio Department of Public

Welfare, FY 1980-1981, Biennial Budget Requests, House Subcom-

mittee Hearings, Answers to Legislative Budget Office’s Questions

Relative to Public Assistance Accounts, February 21, 1979, Ques-

tion 1, p. II/9.

Amici acknowledge the assistance provided in the prepara-

tion of this Brief by Parran Curry, Francis Cook and Arthur

Zulick, third year law students at The Cleveland-Marshall Col-

lege of Law.