SSR 75-13c: SECTION 202(g) (42 U.S.C. 402(g)) -- ENTITLEMENT TO SURVIVORS' INSURANCE BENEFITS -- UNCONSTITUTIONALITY BASED UPON DEPRIVATION OF DUE PROCESS

20 CFR 404.335

SSR 75-13c

Weinberger v. Wiesenfeld , U.S. Supreme Court, No. 73-1892

(3/19/75)

Mr. Justice Brennan:

Social Security Act benefits based on the earnings of a deceased husband

and father covered by the Act are payable, with some limitations, both to

the widow and to the couple's minor children in her care. 42 U.S.C. §

402(g) [1] Such benefits are

payable on the basis of the earnings of a deceased wife and mother covered

by the Act, however, only to the minor children and not to the widower.

The question in this case is whether this gender-based distinction

violates the Due Process Clause of the Fifth

Amendment. [2]

A three-judge District Court for the district of New Jersey held that the

different treatment of men and women mandated by § 402(g) unjustifiably

discriminated against women wage-earners by affording them less protection

for their survivors than is provided to male employees. 367 F. Supp. 981,

991 (N.J. 1973). We noted probable jurisdiction. _____ U.S. _____ (1974).

We affirm.

I

Stephen C. Wiesenfeld and Paula Polatschek were married on November 5,

1970. Paula, who worked as a teacher for five years before her marriage

continued teaching after her marriage. Each year she worked maximum social

security contributions were deducted from her

salary. [3] Paula's earnings were

the couple's principal source of support during the marriage, being

substantially larger than those of

appellee. [4]

On June 5, 1972, Paula died in childbirth. Appellee was left with the

sole responsibility for the care of their infant son, Jason Paul. Shortly

after his wife's death, Stephen Wiesenfeld applied at the social Security

office in New Brunswick, New Jersey, for social security survivors'

benefits for himself and his son.

he marriage, being

substantially larger than those of

appellee. [4]

On June 5, 1972, Paula died in childbirth. Appellee was left with the

sole responsibility for the care of their infant son, Jason Paul. Shortly

after his wife's death, Stephen Wiesenfeld applied at the social Security

office in New Brunswick, New Jersey, for social security survivors'

benefits for himself and his son.

He did obtain Benefits for his Son under 42 U.S.C. §

402(d), [5] and received for

Jason $206.90 per month until September 1972, and $248.30 per month

thereafter. However, appellee was told that he was not eligible for

benefits for himself because § 402(g) benefits were available only to

women. [6] If he had been a

woman, he would have received the same amount as his son as long as he was

not working, see 42 U.S.C. §§ 402(d)(2), 402(g)(2), and, if working, that

amount reduced by $1.00 for every $2.00 earned annually above $2,400. 42

U.S.C. § 403(b) and (f). [7]

Appellee filed this suit in February,

1973, [8] claiming jurisdiction

under 28 U.S.C. § 1331, on behalf of himself and of all widowers similarly

situated. [9] He sought a

declaration that § 402(g) is unconstitutional to the extent that men and

women are treated differently, an injunction restraining appellant from

denying benefits under 42 U.S.C. § 402(g) solely on the basis of sex, and

payment of past benefits commencing with June, 1972, the month of the

original application. Cross motions for summary judgment were filed. After

the three-judge court determined that it had

jurisdiction, [10] it granted

summary judgment in favor of appellee, and issued an order giving appellee

the relief he sought.

nying benefits under 42 U.S.C. § 402(g) solely on the basis of sex, and

payment of past benefits commencing with June, 1972, the month of the

original application. Cross motions for summary judgment were filed. After

the three-judge court determined that it had

jurisdiction, [10] it granted

summary judgment in favor of appellee, and issued an order giving appellee

the relief he sought.

The gender-based distinction made by § 402(g) is indistinguishable from

that invalidated in Frontiero v. Richardson , 411 U.S. 677 (1973). Frontiero involved statutes which provided the wife of a male

serviceman with dependent's benefits but not the husband of a servicewoman

unless she proved that she supplied more than one-half of her husband's

support. The Court held that the statutory scheme violated the right to

equal protection secured by the Fifth Amendment. Schlesinger v.

Ballard , _____ U.S. _____ (1975), explained: "In . . . Frontiero the challenged [classification] based on sex [was]

premised on overbroad generalizations that could not be tolerated under

the Constitution. . . . [T]he assumption . . . was that female spouses of

servicemen would normally be dependent upon their husbands, while male

spouses of servicewomen would not." U.S., at _____. A virtually

identical "archaic and overbroad" generalization, id ., at _____,

"not . . . tolerated under the Constitution" underlies the distinction

drawn by § 402(g), namely, that male workers' earnings are vital to the

support of their families, while the earnings of female wage-earners do

not significantly contribute to their families

support. [11]

Section 402(g) was added to the Social Security Act in 1939 as one of a

large number of amendments designed to "afford more adequate protection to

the family as a unit." H. R. Rep. No. 728, 76th Cong., 1st Sess., 7

male workers' earnings are vital to the

support of their families, while the earnings of female wage-earners do

not significantly contribute to their families

support. [11]

Section 402(g) was added to the Social Security Act in 1939 as one of a

large number of amendments designed to "afford more adequate protection to

the family as a unit." H. R. Rep. No. 728, 76th Cong., 1st Sess., 7

(1939). Monthly benefits were provided to wives, children, widows,

orphans, and surviving dependent parents of covered workers. Ibid .

However, children of covered women workers were eligible for survivors'

benefits only in limited circumstances, see n.5, supra , and no

benefits whatever were made available to husbands or widowers on the basis

of their wives' covered

employment. [12]

Underlying the 1939 scheme was the principle that "under a

social-insurance plan, the primary purpose is to pay benefits in

accordance with the probable needs of beneficiaries rather than to

make payments to the estate of a deceased person regardless of whether or

not he leaves dependents." H. R. Rep. No. 728, supra , at 7.

(Emphasis supplied.) It was felt that "[t]he payment of these survivorship

benefits and supplements for the wife of an annuitant are . . . in keeping

with the principle of social insurance. . . ." Ibid . Thus, the

framers of the Act legislated on the "then generally accepted presumption

that a man is responsible for the support of his wife and child." Hoskins

& Bixby, Women and Social Security -- Law and Policy in Five

Countries, Social Security Administration Research Report No. 42, 77

(1973). [13]

Obviously, the notion that men are more likely than women to be the

primary supporters of their spouses and children is not entirely without

empirical support. See Kahn v. Shevin , 416 U.S. 351, 354 n.7

e support of his wife and child." Hoskins

& Bixby, Women and Social Security -- Law and Policy in Five

Countries, Social Security Administration Research Report No. 42, 77

(1973). [13]

Obviously, the notion that men are more likely than women to be the

primary supporters of their spouses and children is not entirely without

empirical support. See Kahn v. Shevin , 416 U.S. 351, 354 n.7

(1974). But such a gender-based generalization cannot suffice to justify

the denigration of the efforts of women who do work and whose earnings

contribute significantly to their families' support.

Section 402(g) clearly operates, as did the statutes invalidated by our

judgment in Frontiero , to deprive women of protection for their

families which men receive as a result of their employment. Indeed, the

classification here is in some ways more pernicious. First, it was open to

the servicewoman under the statutes invalidated in Frontiero to

prove that her husband was in fact dependent upon her. Here, Stephen

Wiesenfeld was not given the opportunity to show, as may well have been

the case, that he was dependent upon his wife for his support, or that,

had his wife lived, she would have remained at work while he took over

care of the child. Second, in this case social security taxes were

deducted from Paula's salary during the years in which she worked. Thus,

she not only failed to receive for her family the same protection which a

similarly situated male worker would have received, but she also was

deprived of a portion of her own earnings in order to contribute to the

fund out of which benefits would be paid to others

ld. Second, in this case social security taxes were

deducted from Paula's salary during the years in which she worked. Thus,

she not only failed to receive for her family the same protection which a

similarly situated male worker would have received, but she also was

deprived of a portion of her own earnings in order to contribute to the

fund out of which benefits would be paid to others. Since the Constitution

forbids the gender-based differentiation premised upon assumptions as to

dependency made in the statutes before us in Frontiero , the

Constitution also forbids the gender-based differentiation that results in

the efforts of women workers required to pay social security taxes

producing less protection for their families than is produced by the

efforts of men.

III

The Government seeks to avoid this conclusion with two related arguments.

First, it claims that because social security benefits are not

compensation for work done, Congress is not obligated to provide a covered

female employee with the same benefits as it provides to a male. Second,

it contends that § 406(g) was "reasonably designed to offset the adverse

economic situation of women by providing a widow with financial assistance

to supplement or substitute for her own efforts in the marketplace," Brief

for Appellants, 14, and therefore does not contravene the equal protection

guarantee.

A

Appellant relies for the first proposition primarily in Flemming v.

Nestor , 363 U.S. 603 (1960). We held in Flemming that the

interest of a covered employee in future social security benefits is

"noncontractual," because "each worker's benefits, though flowing from the

contributions he made to the national economy while actively employed, are

not dependent upon the degree to which he was called upon to support the

system by taxation." 363 U.S., at 609-610

stor , 363 U.S. 603 (1960). We held in Flemming that the

interest of a covered employee in future social security benefits is

"noncontractual," because "each worker's benefits, though flowing from the

contributions he made to the national economy while actively employed, are

not dependent upon the degree to which he was called upon to support the

system by taxation." 363 U.S., at 609-610. The Government apparently

contends that since benefits derived form the social security program do

not correlate necessarily with contributions made to the program, a

covered employee has no right whatever to be treated equally with other

employees as regards the benefits which flow from his or her

employment.

We do not see how the fact that social security benefits are

"noncontractual" can sanction differential protection for covered

employees which is solely gender-based. From the outset, social security

old age, disability, and survivors' (OASDI) benefits have been "afforded

as a matter of right, related to past participation in the productive

processes of the country." Final Report of the Advisory Council on Social

Security 17 (1938). It is true that social security benefits are not

necessarily related directly to tax contributions, since the OASDI system

is structured to provide benefits in part according to presumed

need. [14] For this reason, Flemming held that the position of a covered employee "cannot be

soundly analogized to that of the holder of an annuity, whose right to

benefits is bottomed on contractual payments." 363 U.S., at 610. But the

fact remains that the statutory right to benefits is directly related to

years worked and amount earned by a covered

employee, [15] and not to the

need of the beneficiaries directly

emming held that the position of a covered employee "cannot be

soundly analogized to that of the holder of an annuity, whose right to

benefits is bottomed on contractual payments." 363 U.S., at 610. But the

fact remains that the statutory right to benefits is directly related to

years worked and amount earned by a covered

employee, [15] and not to the

need of the beneficiaries directly. Since OASDI benefits do depend

significantly upon the participation in the work force of a covered

employee, and since only covered employees and not other are required to

pay taxes toward the system, benefits must be distributed according to

classifications which do not without sufficient justification

differentiate among covered employees solely on the basis of sex.

B

The Government seeks to characterize the classification here as one

reasonably designed to compensate women beneficiaries as a group for the

economic difficulties which still confront women who seek to support

themselves and their families. The Court held in Kahn v. Shervin,

supra , 416 U.S., at 355, that a statute "reasonably designed to

further a state policy of cushioning the financial impact of spousal loss

upon that sex for which that loss imposes a disproportionately heavy

burden" can survive as equal protection attack. See also Schlesinger v.

Ballard, supra . But the mere recitation of a benign, compensatory

purpose is not an automatic shield which protects against any inquiry into

the actual purposes underlying a statutory

scheme. [16] Here, it is

apparent both from the statutory scheme itself and from the legislative

history of § 402(g) that Congress' purpose in providing benefits to young

widows with children was not to provide an income to women who were,

because of economic discrimination, unable to provide for themselves

ch protects against any inquiry into

the actual purposes underlying a statutory

scheme. [16] Here, it is

apparent both from the statutory scheme itself and from the legislative

history of § 402(g) that Congress' purpose in providing benefits to young

widows with children was not to provide an income to women who were,

because of economic discrimination, unable to provide for themselves.

Rather, § 402(g), linked as it is directly to responsibility for minor

children, was intended to permit women to elect not to work and to devote

themselves to the care of children. Since this purpose in no way is

permised upon any special disadvantages of women, it cannot serve to

justify a gender-based distinction which diminishes the protection

afforded to women who do work.

That the purpose behind § 402(g) is to provide children deprived of one

parent with the opportunity for the personal attention of the other could

not be more clear in the legislative history. The Advisory Council on

Social Security, which developed the 1939 amendments, said explicitly that

"[s]uch benefits [§ 402(g)] are intended as supplements to the orphans'

benefits with the purpose of enabling the widow to remain at home and

care for the children." Final Report of the Advisory Council on Social

Security 31 (1938). (Emphasis supplied.) In 1971, a new Advisory Council,

considering amendments to eliminate the various gender-based distinctions

in the OASDI structure, reiterated this understanding: "Present law

provides benefits for the mother of young . . . children . . . if she

chooses to stay home and care for the children instead of working. In the

Council's judgment, it is desirable to allow a woman who is left with the

children the choice of whether to stay at home to care for the

children or to work." Advisory Council on Social Security, Reports on the

Old-Age, Survivors, and Disability Insurance and Medicare Programs 30

young . . . children . . . if she

chooses to stay home and care for the children instead of working. In the

Council's judgment, it is desirable to allow a woman who is left with the

children the choice of whether to stay at home to care for the

children or to work." Advisory Council on Social Security, Reports on the

Old-Age, Survivors, and Disability Insurance and Medicare Programs 30

(1971) (hereinafter 1971 Reports). (Emphasis supplied.)

Indeed, consideration was given in 1939 to extending benefits to all

widows regardless of whether or not there were children. The proposal was

rejected, apparently because it was felt that young widows without

children can be expected to work, while middle-aged widows "are likely to

have more savings than young widows, and many of them have children who

are grown and able to help them" Report of the Social Security Board, H.

R. Doc. No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also Final Report

of the Advisory Council on Social Security 31 (1938); Hearings on the

Social Security Act Amendments of 1939, 76th Cong., 1st Sess., 61, 1217,

2169-2170; H. R. Rep. No. 728, 76th Cong., 1st Sess., 36-37 (1939). Thus,

Congress decided not to provide benefits to all widows even though

it was recognized that some of them would have serious problems in the job

market. Instead, it provided benefits only to those women who had

responsibility for minor children, because it believed that they should

not be required to work.

61, 1217,

2169-2170; H. R. Rep. No. 728, 76th Cong., 1st Sess., 36-37 (1939). Thus,

Congress decided not to provide benefits to all widows even though

it was recognized that some of them would have serious problems in the job

market. Instead, it provided benefits only to those women who had

responsibility for minor children, because it believed that they should

not be required to work.

The whole structure of survivors' benefits conforms to this articulated

purpose. Widows without children obtain no benefits on the basis of their

husband's earnings until they reach age 60 or, in certain instances of

disability, age 50. 42 U.S.C. § 402(e)(1) and (5). Further, benefits under

§ 402(g) cease when all children of a beneficiary are no longer eligible

for children's benefits. [17] If Congress were concerned with providing women with benefits because of

economic discrimination, it would be entirely irrational to except those

women who had spent many years at home rearing children, since those women

are most likely to be without the skills required to succeed in the job

market. See Walker, Sex Discrimination in Government Benefit Programs, 23

Hastings L. J. 277, 278-279 (1971); Hearings, supra , at 61 (remarks

of Dr. Altemeyer, Chairman, Social Security Board); Report of the

Committee on Social Insurance and Taxes. The President's Commission on the

Status of Women, 31-32 (1963). Similarly, the Act now provides benefits to

a surviving divorced wife who is the parent of a covered employee's child,

regardless of how long she was married to the deceased or of whether she

or the child was dependent upon the employee for support. 42 U.S.C. §§

402(g), 416(d)(3). Yet, a divorced wife who is not the mother of a child

entitled to children's benefits is eligible for benefits only if she meets

other eligibility requirements and was married to the covered

employee for 20 years, 42 U.S.C. §§ 402(b) and (e),

416(d)

he was married to the deceased or of whether she

or the child was dependent upon the employee for support. 42 U.S.C. §§

402(g), 416(d)(3). Yet, a divorced wife who is not the mother of a child

entitled to children's benefits is eligible for benefits only if she meets

other eligibility requirements and was married to the covered

employee for 20 years, 42 U.S.C. §§ 402(b) and (e),

416(d). [18] Once again, this

distinction among women is explicable only because Congress was not

concerned in §402(g) with the employment problems of women generally but

with the principle that children of covered employees are entitled to the

personal attention of the surviving parent if that parent chooses not to

work.

Given the purpose of enabling the surviving parent to remain at home to

care for a child, the gender-based distinction of § 402(g) is entirely

irrational. The classification discriminates among surviving children

solely on the basis of the sex of the surviving parent. Even in the

typical family hypothesized by the Act, in which the husband is supporting

the family and the mother is caring for the children, this result makes no

sense. The fact that a man is working while there is a wife at home does

not mean that he would, or should be required to, continue to work if his

wife dies. It is no less important for a child to be cared for by its sole

surviving parent when that parent is male rather than female. And a

father, no less than a mother, has a constitutionally protected right to

the "companionship, care, custody, and management" of "the children he has

sired and raised, [which] undeniably warrants deference and, absent a

powerful countervailing interest, protection." Stanley v. Illinois ,

405 U.S. 645, 651 (1972). Further, to the extent that women who work when

they have sole responsibility for children encounter special problems, it

would seem that men with sole responsibility for children will encounter

the same child-care related

problems

d raised, [which] undeniably warrants deference and, absent a

powerful countervailing interest, protection." Stanley v. Illinois ,

405 U.S. 645, 651 (1972). Further, to the extent that women who work when

they have sole responsibility for children encounter special problems, it

would seem that men with sole responsibility for children will encounter

the same child-care related

problems. [19] Stephen

Wiesenfeld, for example, found that providing adequate care for his infant

son impeded his ability to work, see n.7, supra .

Finally, to the extent that Congress legislated on the presumption that

women as a group would choose to forego work to care for children while

men would not, [20] the

statutory structure, independent of the gender-based classification, would

deny or reduce benefits to those men who conform to the presumed norm and

are not hampered by their child-care responsibilities. Benefits under §

402(g) decrease with increased earnings, see p. 4-5 [2099] , supra .

According to the Government, "the bulk of male workers would receive no

benefits in any event," Brief for Appellant, at 17, because they earn too

much. Thus, the gender-based distinction is gratuitous; without it, the

statutory scheme would only provide benefits to those men who are in fact

similarly situated to the women the statute aids.

Since the gender-based classification of § 402(g) cannot be explained as

an attempt to provide for the special problems of women, it is

indistinguishable from the classification held invalid in Frontiero . Like the statutes there, "[by] providing dissimilar

treatment for men and women who are . . . similarly situated, the

challenged section violates the [Due Process] Clause." Reed v.

Reed , 404 U.S. 71, 77 (1971).

Affirmed .

Mr. Justice Douglas took no part in the consideration or decision of this

case.

Mr. Justice Powell, with whom The Chief Justice joins, concurring.

Mr. Justice Rehnquist, concurring in the result.

providing dissimilar

treatment for men and women who are . . . similarly situated, the

challenged section violates the [Due Process] Clause." Reed v.

Reed , 404 U.S. 71, 77 (1971).

Affirmed .

Mr. Justice Douglas took no part in the consideration or decision of this

case.

Mr. Justice Powell, with whom The Chief Justice joins, concurring.

Mr. Justice Rehnquist, concurring in the result.

[1] Section 402(g) is headed

"Mother's insurance benefits." It provides in pertinent part:

"(1) The widow and every surviving divorced mother (as defined in section

416(d) of this title) of an individual who died a fully or currently

insured individual, if such widow or surviving divorced mother --

"(A) is not married,

"(B) is not entitled to a widow's insurance benefit,

"(C) is not entitled to old-age insurance benefits, or is entitled to

old-age insurance benefits each of which is less than three-fourths of the

primary insurance amount of such individual,

"(D) has filed application for mother's insurance benefits, or was

entitled to wife's insurance benefits on the basis of the wages and

self-employment income of such individual for the month preceding the

month in which he died,

"(E) at the time of filing such application has in her care a child of

such individual entitled to a child's insurance benefit . . . shall . . .

be entitled to a mother's insurance benefit for each month, beginning with

the first month after august 1950 in which she becomes so entitled to such

insurance benefits and ending with the month preceding the first month in

which any of the following occurs: no child of such deceased individual is

entitled to a child's insurance benefit, such widow or surviving divorced

mother becomes entitled to an old-age insurance benefit equal to or

exceeding three-fourths of the primary insurance amount of such deceased

individual, she becomes entitled to a widow's insurance benefit, she

remarries, or she dies. . . ."

which any of the following occurs: no child of such deceased individual is

entitled to a child's insurance benefit, such widow or surviving divorced

mother becomes entitled to an old-age insurance benefit equal to or

exceeding three-fourths of the primary insurance amount of such deceased

individual, she becomes entitled to a widow's insurance benefit, she

remarries, or she dies. . . ."

The terms "fully" and "currently" insured are defined in 42 U.S.C. § 414.

See n.3, infra .

[2] "[W]hile the Fifth Amendment

contains no equal protection clause, it does forbid discrimination that is

'so unjustifiable as to be violative of due process.'" Schneider v.

Rusk , 377 U.S. 163, 168 (1964); see also Bolling v. Sharpe , 347

U.S. 497, 499 (1954). This Court's approach to Fifth Amendment equal

protection claims has always been precisely the same as to equal

protection claims under the Fourteenth Amendment.

[3] Thus, Paula Wiesenfeld as

"currently insured" when she died, see n.1, supra , because she had

"not less than six quarters of coverage during the thirteen-quarter period

ending with (1) the quarter in which [she] died." 42 U.S.C. § 414(b).

[4] In 1970, Paula earned

$9,808, and Stephen earned $3,100 as a self-employed consultant; in 1971,

Paula earned $10,686 and Stephen $2,188; in 1972, Paula earned $6,836.35

before she died, and Stephen $2,475 for the entire year. Stephen completed

his education before the marriage.

[5] Section 402(d) is headed

child's insurance benefits and provides in pertinent part as follows:

"Every child . . . of an individual who dies a fully or currently insured

individual, if such child --

"(A) has filed application for child's insurance benefits,

"(B) at the time such application was filed was unmarried and (i) either

had not attained the age of 18 or was a full-time student and had not

attained the age of 22, or (ii) is under a disability (as defined in

section 423(d) of this title) which began before he attained the age of

22, and

insured

individual, if such child --

"(A) has filed application for child's insurance benefits,

"(B) at the time such application was filed was unmarried and (i) either

had not attained the age of 18 or was a full-time student and had not

attained the age of 22, or (ii) is under a disability (as defined in

section 423(d) of this title) which began before he attained the age of

22, and

"(C) was dependent upon such individual --

"(ii) if such individual has died, at the time of such death . . . shall

be entitled to a child's insurance benefit for each month, beginning with

the first month after August 1950 in which such child becomes so entitled

to such insurance benefits and ending with the month preceding whichever

of the following first occurs --

"(D) the month in which such child dies or marries.

"(E) the month in which such child attains the age of 18, but only if he

(i) is not under a disability (as so defined) at the time he attains such

age, and (ii) is not a full-time student during any part of such

month,"

. . .

Thus, child's insurance benefits are now available without regard to

whether the worker upon whose earnings benefits are based is the mother or

father. This was not always the case. Originally, a child could receive

benefits based on his mother's earnings only if he had not been living

with his father and was being supported solely by his mother. Social

Security Amendments of August 10, 1939, c. 666 § 202(c), 53 Stat. 1364.

This provision was amended in 1950 to provide automatic entitlement to

otherwise eligible children of women workers who were currently insured,

see nn. 1 and 3, supra , when they died, but retaining dependency

qualifications if the mother's covered employment was not recent. Social

Security Amendments of August 28, 1950 c. 809 § 101(a), 64 Stat. 684. In

1967, children of women workers were made eligible for children's benefits

on exactly the same criteria applied to children of male workers

en workers who were currently insured,

see nn. 1 and 3, supra , when they died, but retaining dependency

qualifications if the mother's covered employment was not recent. Social

Security Amendments of August 28, 1950 c. 809 § 101(a), 64 Stat. 684. In

1967, children of women workers were made eligible for children's benefits

on exactly the same criteria applied to children of male workers. Social

Security Amendments of 1967, Pub. L. No. 90-248, § 151, 81 Stat. 860.

See, e.g.,Schlesinger v. Ballard , ____ U.S. ____ (1975); Jiminez v. Weinberger , 417 U.S. 628, 637 (1974); Frontiero v.

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

[6] Appellee said in an

affidavit that he was told orally at the Social Security office that he

could not file an application for benefits on his own behalf. The

Government does not dispute that the request for benefits was orally made

and orally denied. Tr. of Oral Arg. before District Court, June 20, 1973,

at 45; 367 F. Supp. at 985 n.5.

[7] Stephen Wisenfeld was

employed until October 1972. however, since he earned $2,475 for the

entire year 1972, n.4, supra , he apparently would have been

eligible for benefits were he a woman from June 1972 until he obtain

employment again on February 5, 1973, at a salary of $1,500 per month.

This lawsuit was filed on February 24, 1973. On September 14, 1973,

appellee was dismissed from his position, so that he was unemployed and

again eligible for benefits, but for the gender-based distinction, when

the lower court opinion issued on December 11, 1973. Appellee, in an

affidavit filed in September 1973, ascribed his employment difficulties in

large part to the difficulties of childcare. In particular, he noted that

he had "encountered severe difficulty in obtaining the services of a

suitable housekeeper, to whom I could conscientiously entrust Jason's

care. I have employed four housekeepers in the past year. . . ."

on December 11, 1973. Appellee, in an

affidavit filed in September 1973, ascribed his employment difficulties in

large part to the difficulties of childcare. In particular, he noted that

he had "encountered severe difficulty in obtaining the services of a

suitable housekeeper, to whom I could conscientiously entrust Jason's

care. I have employed four housekeepers in the past year. . . ."

[8] Appellee did not seek

administrative review of the denial under 42 U.S.C. § 405(b). However, the

Government stipulated that any administrative appeal would have been

futile, since § 402(g) on its face precludes granting benefits to men. Tr.

of Oral Arg. before District Court, June 20, 1973, at 16-17. Nor does the

Government now claim that § 405(h), which provides that "no findings of

fact or decision of the Secretary shall be reviewed . . . except as herein

provided," (see 42 U.S.C. § 405(g)) is a bar to this action. See Public

Utilities Comm'n v. United States , 355 U.S. 534, 539-540 (1958); Richardson v. Morris , 409 U.S. 464 (1973) (per curiam); Griffin

v. Richardson , 346 F. Supp. 1226, aff'd 409 U.S. 1069 (1972).

[9] The three-judge court

declined to permit the action to proceed as a class action. 367 F. Supp.

at 986-987. No appeal has been taken from this ruling.

[10] The court recognized that

the jurisdictional amount of $10,000 under 28 U.S.C. § 1331 is established

as long as it does not "appear to a legal certainty" that the matter in

controversy does not total $10,000, St. Paul Mercury & Indemnity

Co. v. Red Cab Co. , 303 U.S. 283, 289 (1938), and therefore that where

an injunction commanding future payments is sought, there is no need to

await accrual of $10,000 in back benefits to bring suit. However, it was

troubled by the fact that appellee was employed on the day suit was filed,

see n.7, supra , and thus would not have been entitled to benefits

on that day

rcury & Indemnity

Co. v. Red Cab Co. , 303 U.S. 283, 289 (1938), and therefore that where

an injunction commanding future payments is sought, there is no need to

await accrual of $10,000 in back benefits to bring suit. However, it was

troubled by the fact that appellee was employed on the day suit was filed,

see n.7, supra , and thus would not have been entitled to benefits

on that day. It held that there was nonetheless jurisdiction because of

the futility of dismissing the suit when the plaintiff could refile

immediately and establish jurisdiction, since he was employed by the time

of decision. We believe that there was jurisdiction in any event on the

day the suit was filed. Benefits under § 402(g) could be available to

appellee, if he prevailed, until his infant child became 18, see 42 U.S.C.

§§ 402(d), 402(g), 402(s)(1). At the then-prevailing benefit rates,

appellee would reach $10,000 in benefits if he collected full benefits for

a little more than three years, see p.4, supra . Social security

benefits are to some degree in the nature of insurance, providing present

security and peach of mind for fear of future lack of earnings. Also,

unlike disability benefits, see 42 U.S.C. § 423, these survivors' benefits

do not depend upon ability to earn but only upon actual earnings. Thus,

they give a potential recipient a choice between staying home to care for

the child and working. This opportunity for choice, and the potential

right to as much as $53,600 worth of benefits ($2,980 per year times 18

years), certainly has a present value of $10,000, whether or not the

claimant was eligible for benefits on the day he files suit.

to earn but only upon actual earnings. Thus,

they give a potential recipient a choice between staying home to care for

the child and working. This opportunity for choice, and the potential

right to as much as $53,600 worth of benefits ($2,980 per year times 18

years), certainly has a present value of $10,000, whether or not the

claimant was eligible for benefits on the day he files suit.

[11] See the observations in Frontiero , 411 U.S. at 689, n.23, that in view of the large

percentage of married women working (41.5% in 1971), the presumption of

complete dependency of wives upon husbands has little relationship to

present reality. In the same vein, Taylor v. Louisiana , ____ U.S.

____ (1975), observed that current statistics bely "the presumed role in

the home" of contemporary women. ____ U.S., at ____, n.17.

[12] Changes have been made in

these provisions. For example, benefits are now available to husbands and

aged widowers of covered workers if they can show that more than one-half

of their support has been provided by their wives. 42 U.S.C. § 402(c); §

402(f). See also n.5, supra . See generally Note, Sex

Classifications in the Social Security Benefit Structure, 49 Ind. L. J.

181 (1973).

[13] See, e.g., H. R. Rep. No.

728, 76th Cong., 1st Sess., 36 (1959): "[A] child is not usually

financially dependent upon his mother"; 84 Cong. Rec. 6896 (1939) (Remarks

of Rep. Cooper): "[W]e now have under the provisions of this bill a

program on a family basis, and we will take care of these people who will

need this assistance because of the loss of the father or the husband and the loss of the pay and wages that he has been

bringing in to the family." (Emphasis supplied.) See also Report of the

Committee on Social Insurance and Taxes

(1939) (Remarks

of Rep. Cooper): "[W]e now have under the provisions of this bill a

program on a family basis, and we will take care of these people who will

need this assistance because of the loss of the father or the husband and the loss of the pay and wages that he has been

bringing in to the family." (Emphasis supplied.) See also Report of the

Committee on Social Insurance and Taxes. The President's Commission on the

Status of Women, 29 (1963): "It was decided at the time that if the

determination of dependence were based on generally valid presumptions,

there would be no need in most situations for detailed investigations of

family financial relationships. Since the husband traditionally was the

wage earner in the family and the wife was the homemaker, benefits were

provided for wives, widows, and children on the basis of presumed

dependency on the husband. . . ."

[14] See p. 8 [p. 2100, the

paragraph beginning: "Underlying the 1939 scheme. . . ."], supr .

There has been a continuing tension in the OASDI system between two goals:

individual equity, which accords benefits commensurate with the

contributions made to the system, and social adequacy, which assures to

all contributors and their families a tolerable standard of living. See

Pechman, Aaron & Taussig, Social Security: Perspectives for Reform

33-34 (1968); Report of the Social Security Board, H. R. Doc. No. 110,

76th Cong., 1st Sess., 5 (1939). Rather than abandoning either goal,

Congress has tried to meet both, by assuring that the protection afforded

each contributor is at least that which his contributions could purchase

on the private market. See H. R. Rep. No. 728, 76th Cong., 1st Sess.,

13-14 (1939); H. R. Rep. No. 1300, 81st Cong., 1st Sess., 2 (1949).

Security Board, H. R. Doc. No. 110,

76th Cong., 1st Sess., 5 (1939). Rather than abandoning either goal,

Congress has tried to meet both, by assuring that the protection afforded

each contributor is at least that which his contributions could purchase

on the private market. See H. R. Rep. No. 728, 76th Cong., 1st Sess.,

13-14 (1939); H. R. Rep. No. 1300, 81st Cong., 1st Sess., 2 (1949).

[15] See 42 U.S.C. §§ 414, 415

for the correlation between years worked, amount earned, and the "Primary

Insurance Amount," which is the amount received by fully insured employees

upon reaching retirement age. Benefits under 42 U.S.C. § 402(g) are 75% of

the Primary Insurance Amount of the covered employee.

[16] This Court need not in

equal protection cases accept at face value assertions of legislative

purposes, when an examination of the legislative scheme and its history

demonstrates that the asserted purpose could not have been a goal of the

legislation. See Eisenstadt v. Baird , 405 U.S. 438 (1972); Jiminez v. Weinberger , 417 U.S. 628, 634 (1974); U.S. Department

of Agriculture v. Moreno , 413 U.S. 528, 536-537 (1973).

[17] In certain cases,

mother's benefits under § 402(g) cease although some children are still

eligible for children's benefits under § 402(d). In particular, children

continue to be eligible for benefits while full-time students until age 22

and, in some instances, for a few months thereafter. 42 U.S.C. §

402(d)(1)(F) and (d)(7). Yet, benefits to the mother under § 402(g) cease

if all children have reached 18 and are not disabled. 42 U.S.C. §

402(s)(1). This distinction also sustains our conclusion that § 402(g) was

intended only to provide an opportunity for children to receive the

personal attention of one parent, since mother's benefits are linked to

children's benefits only so long as it is realistic to think that the

children might need their parent at home.

all children have reached 18 and are not disabled. 42 U.S.C. §

402(s)(1). This distinction also sustains our conclusion that § 402(g) was

intended only to provide an opportunity for children to receive the

personal attention of one parent, since mother's benefits are linked to

children's benefits only so long as it is realistic to think that the

children might need their parent at home.

[18] Originally, no divorced

wives were entitled to benefits on the basis of their former husbands'

earnings. The provision for surviving divorced wives who are the mothers

of children entitled to survivors' benefits was added in 1950. Social

Security Amendments of 1950, c. 809 § 101(a), 64 Stat. 483. It was not

until 1965 that benefits were provided for aged divorced wives and widows,

premised upon a 20-year marriage. Social Security Amendments of 1965, Pub.

L. No. 89-97, § 308, 79 Stat. 375. Both these groups of women were

required to prove dependence upon the former husband. The proof of

dependency requirements were eliminated in 1972. Social Security

Amendments of 1972, Pub. L. No. 92-603, § 114. This separate development

of benefits for divorced women with children and those without reinforces

the conclusion that the presence of children is the raison d'etre

of § 402(g).

[19] The Commission on

Railroad Retirement, commenting upon a similar provision of the railroad

retirement system, significantly stated: "Statistically speaking there

are, of course, significant differences by sex in the roles played in our

society. For example, far more women than men are primarily involved in

raising minor children. But if the society's aim is to further a socially

desirable purpose, e.g., better care for growing children, it should

tailor any subsidy directly to the end desired, not indirectly and

unequally by helping widows with dependent children and ignoring widowers

in the same plight

played in our

society. For example, far more women than men are primarily involved in

raising minor children. But if the society's aim is to further a socially

desirable purpose, e.g., better care for growing children, it should

tailor any subsidy directly to the end desired, not indirectly and

unequally by helping widows with dependent children and ignoring widowers

in the same plight. In this example, it is the economic and functional capability of the surviving breadwinner to care for

children which counts; the sex of the surviving parent is incidental."

Commission on Railroad Retirement, Railroad Retirement System -- Its

Coming Crisis, H. R. Doc. No. 72-350, 92d Cong., 2d Sess., 378 (1972).

(Emphasis supplied.)

[20] Precisely this view was

expressed by the 1971 Advisory Council on Social Security, whose

recommendations upon which gender-based distinctions in the OASDI system

to retain and which to discard were followed in the 1972 Social Security

Amendments: "The Council believes that it is unnecessary to offer the same

choice [whether to work or care for surviving children] to a man. Even

though many more married women work today than in the past, so that they

are both workers and homemakers, very few men adopt such a dual role; the

customary and predominate role of the father is not that of a homemaker

but rather that of the family breadwinner. A man generally continues to

work to support himself and his children after the death or disability of

his wife. The Council therefore does not recommend that benefits be

provided for a young father who has children in his care." 1971 Reports, supra , at 30.