SSR 77-26c: SECTION 202(c)(1)(C) and 202(f)(1)(D) (42 U.S.C. 402(c)(1)(C) and 402(f)(1)(D)) HUSBAND'S AND WIDOWER'S INSURANCE BENEFITS -- REQUIREMENTS FOR ENTITLEMENT -- DEPENDENCY -- CONSTITUTIONALITY

20 CFR 404.316(a) and 404.331(a)(6)

SSR 77-26c

CALIFANO v. GOLDFARB, 97 S. Ct. 1021 (1971)

Mr. JUSTICE BRENNAN announced the Court's decision in which JUSTICES

WHITE, MARSHALL, and POWELL joined. MR. JUSTICE STEVENS concurred. MR.

JUSTICE REHNQUIST filed a dissenting opinion in which MR. CHIEF JUSTICE

BURGER and JUSTICES STEWART and BLACKMUN joined.

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an

opinion in which MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, AND MR. JUSTICE

POWELL joined.

Under the Federal Old-Age, Survivors, and Disability Insurance Benefits

program (OASDI) 42 U.S.C. §§ 401-431, survivors' benefits based on the

earnings of a deceased husband covered by the Act are payable to his

widow. Such benefits on the basis of the earnings of a deceased wife

covered by the Act are payable to the widower, however, only if he "was

receiving at least one-half of his support" from his deceased

wife. [1] The question in this

case is whether this gender-based distinction violates the Due Process

Clause of the Fifth Amendment.

A three-judge District Court for the Eastern District of New York held

that the different treatment of men and women mandated by § 402(f)(1)(D)

constituted invidious discrimination against female wage earners by

affording them less protection for their surviving spouses than is

provided to male employees, 396 F. Supp. 308

(1975). [2] We noted probable

jurisdiction. 424 U.S. 906 (1976). We affirm.

Mrs. Hannah Goldfarb worked as a secretary in the New York City public

school system for almost 25 years until her death in 1968. During that

entire time she paid in full all social security taxes required by the

Federal Insurance Contributions Act, 26 U.S.C. §§ 3101, 3126. She was

survived by her husband, Leon Goldfarb, now age 72, a retired federal

employee. Leon duly applied for widower's benefits. The application was

denied with the explanation that

c

school system for almost 25 years until her death in 1968. During that

entire time she paid in full all social security taxes required by the

Federal Insurance Contributions Act, 26 U.S.C. §§ 3101, 3126. She was

survived by her husband, Leon Goldfarb, now age 72, a retired federal

employee. Leon duly applied for widower's benefits. The application was

denied with the explanation that

The District Court declared § 402(f)(1)(D) unconstitutional primarily on

the authority of Weinberger v. Wiesenfeld , 420 U.S. 636 (1975),

stating

II

The gender-based distinction drawn by § 402(f)(1)(D) -- burdening a

widower but not a widow with the task of proving dependency upon the

deceased spouse -- presents an equal protection question indistinguishable

from that decided in Weinberger v. Wiesenfeld, supra . That decision

and the decision in Frontiero v. Richardson, supra , plainly require

affirmance of the judgment of the District

Court. [4]

The statutes held unconstitutional in Frontiero provided increased

quarters allowance and medical and dental benefits to a married male

member of the uniformed armed services whether or not his wife in fact

depended on him, while a married female service member could only receive

the increased benefits if she in fact provided over one-half of her

husband's support. To justify the classification, the Government argued

that "as an empirical matter, wives in our society frequently are

dependent on their husbands, while husbands are rarely dependent on their

wives. Thus, . . . Congress might reasonably have concluded that it would

be both cheaper and easier simply conclusively to presume that wives of

male members are financially dependent on their husbands, while burdening

female members with the task of establishing dependency in fact." 411

U.S., at 688-689

tly are

dependent on their husbands, while husbands are rarely dependent on their

wives. Thus, . . . Congress might reasonably have concluded that it would

be both cheaper and easier simply conclusively to presume that wives of

male members are financially dependent on their husbands, while burdening

female members with the task of establishing dependency in fact." 411

U.S., at 688-689. But Frontiero concluded that, by according such

differential treatment to male and female members of the uniformed

services for the sole purpose of achieving administrative convenience, the

challenged statute violated the Fifth Amendment. See Reed v. Reed ,

404 U.S. 71, 76 (1971); Stanley v. Illinois , 405 U.S. 645, 656-657

(1972); cf. Schlesinger v. Ballard , 419 U.S. 498, 506-507

(1975).

Weinberger v. Wiesenfeld , like the instant case, presented the

question in the context of the OASDI program. There the Court held

unconstitutional a provision that denied father's insurance benefits to

surviving widowers with children in their care, while authorizing similar

mother's benefits to similarly situated widows. Paula Wiesenfeld, the

principal source of her family's support, and covered by the Act, died in

childbirth, survived by the baby and her husband Stephen. Stephen applied

for survivor's benefits for himself and his infant son. Benefits were

allowed the baby under 42 U.S.C. § 402(d), but denied the father on the

ground that "mother's benefits" under § 402(g) were available only to

women. The Court reversed, holding that the gender-based distinction made

by § 402(g) was "indistinguishable from that invalidated in Frontiero ," 420 U.S., at 642, and therefore, while

urvivor's benefits for himself and his infant son. Benefits were

allowed the baby under 42 U.S.C. § 402(d), but denied the father on the

ground that "mother's benefits" under § 402(g) were available only to

women. The Court reversed, holding that the gender-based distinction made

by § 402(g) was "indistinguishable from that invalidated in Frontiero ," 420 U.S., at 642, and therefore, while

Precisely the same reasoning condemns the gender-based distinction made

by § 402(f)(1)(D) in this case. For that distinction too operates "to

deprive women of protection for their families which men receive as a

result of their employment": social security taxes were deducted from

Hannah Goldfarb's salary during the quarter-century she worked as a

secretary, yet, in consequence of § 402(f)(1)(D), she also "not only

failed to receive for her [spouse] the same protection which a similarly

situated male worker would have received [for his spouse] but she also was

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

out of which benefits would be paid to others." Wiesenfeld thus

inescapably compels the conclusion reached by the District Court that the

gender-based differentiation created by § 402(f)(1)(D) -- that results in

the efforts of female workers required to pay social security taxes

producing less protection for their spouses than is produced by the

efforts of men -- is forbidden by the Constitution, at least when

supported by no more substantial justification than "archaic and

overboard" generalizations, Schlesinger v. Ballard, supra , 419

U.S., at 508, or "old notions," Stanton v. Stanton , 421 U.S. 7, 14

s of female workers required to pay social security taxes

producing less protection for their spouses than is produced by the

efforts of men -- is forbidden by the Constitution, at least when

supported by no more substantial justification than "archaic and

overboard" generalizations, Schlesinger v. Ballard, supra , 419

U.S., at 508, or "old notions," Stanton v. Stanton , 421 U.S. 7, 14

(1975), such as "assumptions as to dependency." Weinberger v.

Wiesenfeld, supra , at 645, that are more consistent with "the

role-typing society has long imposed." Stanton v. Stanton, supra ,

at 15, than with contemporary reality. Thus § 402(f)(1)(D) "[b]y providing

dissimilar treatment for men and women who are . . . similarly situated .

. . violates the [Fifth Amendment]. Reed v. Reed , 404 U.S. 71, 77.

. . ." Weinberger v. Wiesenfeld, supra , at 653.

III

Appellant, however, would focus equal protection analysis not upon the

discrimination against the covered wage earning female, but rather upon

whether her surviving widower was unconstitutionally discriminated against

by burdening him but not a surviving widow with proof of dependency. The

gist of the argument is that, analyzed from the perspective of the

widower, ". . . the denial of benefits reflected the congressional

judgment that aged widowers as a class were sufficiently likely not to be

dependent upon their wives, that it was appropriate to deny them benefits

unless they were in fact dependent." Appellant's Brief, p. 12.

surviving widow with proof of dependency. The

gist of the argument is that, analyzed from the perspective of the

widower, ". . . the denial of benefits reflected the congressional

judgment that aged widowers as a class were sufficiently likely not to be

dependent upon their wives, that it was appropriate to deny them benefits

unless they were in fact dependent." Appellant's Brief, p. 12.

But Weinberger v. Wiesenfeld rejected the virtually identical

argument when appellant's predecessor argued that the statutory

classification there attached should be regarded from the perspective

beneficiary and not from that of the covered wage earner. The Secretary's

Brief in that case, p. 14, argued that ". . . the pattern of legislation

reflects the considered judgment of Congress that the 'probable need' for

financial assistance is greater in the case of a widow, with young

children to maintain, than in the case of similarly situated males." The

Court, however, analyzed the classification from the perspective of the

wage earner and concluded that the classification was unconstitutional

because "benefits must be distributed according to classifications which

do not without sufficient justification differentiate among covered

employees solely on the basis of sex." 420 U.S., at 647. Thus, contrary to

appellant's insistence, Appellant's Brief, p. 12, Wiesenfeld is

"dispositive here."

From its inception, the social security system has been a program of

social insurance. Covered employees and their employers pay taxes into a

fund administered distinct from the general federal revenues to purchase

protection against the economic consequences of old age, disability and

death. But under § 402(f)(1)(D) female insureds received less protection

for their spouses solely because of their sex. Mrs

the social security system has been a program of

social insurance. Covered employees and their employers pay taxes into a

fund administered distinct from the general federal revenues to purchase

protection against the economic consequences of old age, disability and

death. But under § 402(f)(1)(D) female insureds received less protection

for their spouses solely because of their sex. Mrs. Goldfarb worked and

paid social security taxes for 25 years at the same rate as her male

colleagues, but because of § 402(f)(1)(D) the insurance protection

received by the males was broader than hers. Plainly then § 402(f)(1)(D)

disadvantages women contributors to the social security system as compared

to similarly situated men. [5] The section then "impermissibly discriminates against a female wage earner

because it provides her family less protection than it provides that of a

male wage earner, even though the family needs may be identical." 420

U.S., at 654-655 (POWELL, J., concurring). In a sense, of course, both the

female wage earner and her surviving spouse are disadvantaged by operation

of the statute, but this is because "Social Security is designed . . . for

the protection of the family ." 420 U.S., at 654. (JUSTICE POWELL

concurring), [6] and the section

discriminates against one particular category of family -- that in which

the female spouse is a wage earner covered by social

security. [7] Therefore decision

of the equal protection challenge in this case cannot focus solely on the

distinction drawn between widowers and widows but, as Wiesenfeld held, upon the gender-based discrimination against covered female wage

earners as well. [8]

IV

Appellant's emphasis upon the sex based distinction between widow and

widower as recipients of benefits rather than that between covered female

and covered male employees also emerges in his other arguments. These

arguments have no merit.

A

drawn between widowers and widows but, as Wiesenfeld held, upon the gender-based discrimination against covered female wage

earners as well. [8]

IV

Appellant's emphasis upon the sex based distinction between widow and

widower as recipients of benefits rather than that between covered female

and covered male employees also emerges in his other arguments. These

arguments have no merit.

A

We accept as settled the proposition argued by appellant that Congress

has wide latitude to create classifications that allocate noncontractural

benefits under a social welfare program. Weinberger v. Salfi , 422

U.S. 749, 776-777 (1975); Flemming v. Nestor , 363 U.S. 603, 609-610

(1960). It is generally the case, as said in Flemming v. Nestor ,

363 U.S., at 611, that

See also Weinberger v. Salfi, supra , 422 U.S., at 768-770; Richardson v. Belcher , 404 U.S. 78, 81, 84 (1971); Dandridge v.

Williams , 397 U.S. 471, 485-486 (1970).

But this "does not, of course, immunize [social welfare legislation] from

scrutiny under the Fifth Amendment." Richardson v. Belcher, supra ,

404 U.S., at 81. The Social Security Act is permeated with provisions that

draw lines in classifying those who are to receive benefits. Congressional

decisions in this regard are entitled to deference as those of the

institution charged under our scheme of government with the primary

responsibility for making such judgments in light of competing policies

and interests. But "[t]o withstand constitutional challenge, . . .

classifications by gender must serve important governmental objectives and

must be substantially related to the achievement of those objectives." Craig v. Boren , _____ U.S. _____, _____

(1976). [9] Such classifications,

however, have frequently been revealed on analysis to rest only upon "old

notions" and "archaic and overboard" generalizations. Stanton v.

Stanton, supra , 421 U.S., at 14; Schlesinger v. Ballard, supra ,

419 U.S., at 508; cf. Mathews v. Lucas , 44 U.S.L.W. 5139, 5144

ted to the achievement of those objectives." Craig v. Boren , _____ U.S. _____, _____

(1976). [9] Such classifications,

however, have frequently been revealed on analysis to rest only upon "old

notions" and "archaic and overboard" generalizations. Stanton v.

Stanton, supra , 421 U.S., at 14; Schlesinger v. Ballard, supra ,

419 U.S., at 508; cf. Mathews v. Lucas , 44 U.S.L.W. 5139, 5144

(1976), and so have been found to offend the prohibitions against denial

of equal protection of the law. Reed v. Reed, supra; Frontiero v.

Richardson, supra; Weinberger v. Wisenfeld, supra; Stanton v. Stanton,

supra; Criag v. Boren, supra . See also Stanley v. Illinois, supra;

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

Therefore, Wiesenfeld , 420 U.S., at 646-647, expressly rejected

the argument of appellant's predecessor, relying on Flemming v.

Nestor , that the "non-contractual" interest of a covered employee in

future social security benefits precluded any claim of denial of equal

protection. Rather, Wiesenfeld held that the fact that the interest

is "non-contractual" does not mean that "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," nor does it "sanction

differential protection for covered employees which is solely

gender-based." 420 U.S., at 646. On the contrary, benefits "directly

related to years worked and amount earned by a covered employee, and not

to the needs of the beneficiaries directly," like the employment-related

benefits in Frontiero , " must be distributed according to

classifications which do not without sufficient justification

differentiate among covered employees solely on the basis of sex." 420

U.S., at 647.

B

the contrary, benefits "directly

related to years worked and amount earned by a covered employee, and not

to the needs of the beneficiaries directly," like the employment-related

benefits in Frontiero , " must be distributed according to

classifications which do not without sufficient justification

differentiate among covered employees solely on the basis of sex." 420

U.S., at 647.

B

Appellant next argues that Frontiero and Wiesenfeld should

be distinguished as involving statutes with different objectives than §

402(f)(1)(D). Rather than merely enacting presumptions designed to save

the expense and trouble of determining which spouses are really dependent,

providing benefits to all widows, but only to such widowers as prove

dependency, § 402(f)(1)(D), it is argued, rationally defines different

standards of eligibility because of the differing social welfare needs of

widowers and widows. That is, the argument runs. Congress may reasonably

have presumed that nondependent widows, who receive benefits, are needier

than nondependent widowers, who do not, because of job discrimination

against women (particularly older women), see Kahn v. Shevin , 416

U.S. 351, 353-354 (1974), and because they are more likely to have been

more dependent on their spouses. See Wiesenfeld, supra , 420 U.S.,

at 645; Kahn v. Shevin, supra , 416 U.S., at 354 n.

7. [10]

But "inquiry into the actual purposes" of the discrimination, Wiesenfeld, supra , 420 U.S., at 648, proves the contrary. First, §

405(f)(1)(D) itself is phrased in terms of dependency , not need . Congress chose to award benefits not to widowers who could

prove that they are needy, but to those who could prove that they had been

dependent on their wives for more than one-half of their support. On the

face of the statute, dependency, not need, is the criterion for

inclusion.

S., at 648, proves the contrary. First, §

405(f)(1)(D) itself is phrased in terms of dependency , not need . Congress chose to award benefits not to widowers who could

prove that they are needy, but to those who could prove that they had been

dependent on their wives for more than one-half of their support. On the

face of the statute, dependency, not need, is the criterion for

inclusion.

Moreover, the general scheme of OASDI shows that dependence on the

covered wage earner is the critical factor in determining beneficiary

categories. [11] OASDI is

intended to insure covered wage earners and their families against the

economic and social impact on the family normally entailed by loss of the

wage earner's income due to retirement, disability, or death, by providing

benefits to replace the lost wages. Cf. Jiminez v. Weinberger , 417

U.S. 628, 633-634 (1974). Thus, benefits are not paid, as under other

welfare programs, simply to categories of the population at large who need

economic assistance, but only to members of the family of the insured wage

earner. [12] Moreover, every

family member other than a wife or widow is eligible for benefits only if

a dependent of the covered wage

earner. [13] This accords with

the system's general purpose; one who was not dependent to some degree on

the covered wage earner suffers no economic loss when the wage earner

leaves the work force. Thus the overall statutory scheme makes actual

dependency the general basis of eligibility for OASDI benefits, and the

statute, in omitting that requirement for wives and widows, reflects only

a presumption that they are ordinarily dependent. At all events, nothing

whatever suggests a reasoned congressional judgment that non-dependent

widows should receive benefits because they are more likely to be needy

than nondependent widowers.

dependency the general basis of eligibility for OASDI benefits, and the

statute, in omitting that requirement for wives and widows, reflects only

a presumption that they are ordinarily dependent. At all events, nothing

whatever suggests a reasoned congressional judgment that non-dependent

widows should receive benefits because they are more likely to be needy

than nondependent widowers.

Finally, the legislative history of § 402(f)(1)(D) refutes appellant's

contention. The old age provisions of the original Social Security Act, 49

Stat. 622 (1935), provided pension benefits only to the wage earner

himself, with a lump-sum payment to his estate under certain

circumstances. [14] Wives' and

widows' benefits were first provided when coverage was extended to other

family members in 1939. Social Security Act Amendments of 1939, 53 Stat.

1360, 1364-1366. The general purpose of the amendments was "to afford more

adequate protection for the family as a unit." H. R. Rep. No. 728,

76th Cong., 1st Sess., at 7 (1939). (Emphasis supplied.) The House Ways

and Means Committee criticized the old lump-sum payment because it

"make[s] payments to the estate of a deceased person regardless of whether

or not he leaves dependents." Ibid . The Social Security Board,

which had initiated the amendments in a report transmitted by the

President to Congress, recommended the adoption of survivors' benefits

because "The payment of monthly benefits to widows and orphans, who are

the two chief classes of dependent survivors, would furnish more

significant protection than does the payment of lump-sum benefits." H. R.

Doc. No. 110, 76th Cong., 1st Sess., 7

which had initiated the amendments in a report transmitted by the

President to Congress, recommended the adoption of survivors' benefits

because "The payment of monthly benefits to widows and orphans, who are

the two chief classes of dependent survivors, would furnish more

significant protection than does the payment of lump-sum benefits." H. R.

Doc. No. 110, 76th Cong., 1st Sess., 7

(1939). [15] In addition to

recommending survivors' benefits, the Board suggested the extension of

old-age pension benefits "for the aged dependent wife of the retired

worker. [16] Id ., at 6.

On the Senate floor, Senator Harrison, the principal proponent of the

amendments, criticized the then existing system of benefits because under

it "no regard is had as to whether [the covered wage earner] has a

dependent wife, or whether he dies leaving a child, widow, or parents." 84

Cong. Rec. 8827 (1939). There is no indication whatever in any of the

legislative history that Congress gave any attention to the specific case

of nondependent widows, and found that they were in need of benefits

despite their lack of dependency, in order to compensate them for

disadvantages caused by sex discrimination. There is every indication

that, as Wiesenfeld, supra , recognized, 420 U.S., at 644, "the

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

that a man is responsible for the support of his wife and children.' D.

Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five

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

imination. There is every indication

that, as Wiesenfeld, supra , recognized, 420 U.S., at 644, "the

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

that a man is responsible for the support of his wife and children.' D.

Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five

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

(1973)." [17]

Survivors' and old age benefits were not extended to husbands and

widowers until 1950. 64 Stat. 483-485. The legislative history of this

provision also demonstrates that Congress did not create the disparity

between nondependent widows and widowers with a compensatory purpose. The

impetus for change came from the Advisory Council on Social Security,

which recommended benefits for "the aged, dependent husband . . . [and]

widower." The purpose of this recommendation was [t]o equalize the

protection given to the dependents of women and men" because

"[ u ]nder the present program, insured women lack some of the rights

which insured men can acquire ." Advisory Council on Social Security.

Recommendations for Social Security Legislation. S. Doc. No. 208, 80th

Cong., 2d Sess., at 38 (1949), (Emphasis supplied.) It is clear from the

Report that the Advisory Council assumed that the provision of benefits to

dependent husbands and widowers was the equivalent of the provision of

benefits to wives and widows under the previous statue, and not a lesser

protection deliberately made because of lesser need. Although the original

House Bill H. R. 6000 that became the Social Security Act Amendments of

1950 did not contain a provision for husbands' and widowers' benefits, the

Senate Finance Committee added it, because "the committee believes that

protection given to dependents of women and men should be made more

comparable." S. Rep. No. 1669, 81st Cong., 2d Sess., at 28 (1950)

of lesser need. Although the original

House Bill H. R. 6000 that became the Social Security Act Amendments of

1950 did not contain a provision for husbands' and widowers' benefits, the

Senate Finance Committee added it, because "the committee believes that

protection given to dependents of women and men should be made more

comparable." S. Rep. No. 1669, 81st Cong., 2d Sess., at 28 (1950). In

1950, as in 1939, there was simply no indication of an intention to create

a differential treatment for the benefit of nondependent wives.

We conclude, therefore, that the differential treatment of nondependent

widows and widowers results not, as appellant asserts, from a deliberate

congressional intention to remedy the arguably greater needs of the

former, but rather from an intention to aid the dependent spouses of

deceased wage earners, coupled with a presumption that wives are usually

dependent. This presents precisely the situation faced in Frontiero and Wiesenfeld . The only conceivable justification for writing the

presumption of wives' dependency into the statute is the assumption, not

verified by the Government in Frontiero , 411 U.S., at 689, or here,

but based simply on "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra , 419 U.S., at 508, that it would save

the Government time, money, and effort simply to pay benefits to all

widows, rather than to require proof of dependency of both

sexes. [18] We held in Frontiero , and again in Wiesenfeld , and therefore hold again

here, that such assumptions do not suffice to justify a gender-based

discrimination in the distribution of employment-related benefits.

Affirmed .

[1] 42 U.S.C. § 402(f)(1), in

pertinent part, provides:

"The widower . . . of an individual who died a fully insured individual

if such widower --

"The widow . . . of an individual who dies a fully insured individual, if

such widow . . .

"shall be entitled to a widow's insurance benefits . . .,"

gender-based

discrimination in the distribution of employment-related benefits.

Affirmed .

[1] 42 U.S.C. § 402(f)(1), in

pertinent part, provides:

"The widower . . . of an individual who died a fully insured individual

if such widower --

"The widow . . . of an individual who dies a fully insured individual, if

such widow . . .

"shall be entitled to a widow's insurance benefits . . .,"

[2] The decision also applied to

§ 402(e)(1)(C), which imposes a dependency requirement on husbands of

covered female wage earners applying for old-age benefits; wives applying

for such benefits are not required to prove dependency, § 402(b). These

gender-based classifications have been uniformly held to be

unconstitutional. See Abbott v. Weinberger , ___ F. Supp. ___, Civil

NO. C74-194 (ND) Ohio Feb. 12, 1976), appeal docketed sub nom. Mathews

v. Abbott , No. 75-1643 (husband's old-age benefits); Coffin v.

Secretary of Health, Education and Welfare , 400 F. Supp. 953 (DC 1975)

(three-judge court), appeal docketed sub nom; Mathews v. Coffin ,

No. 75-791 (both husband's and widower's benefits); Jablon v. Secretary

of Health, Education and Welfare , 399 F. Supp. 11S (Md. 1975)

(three-judge court), appeal docketed sub nom Mathews v. Jablon No.

75-739 (Husband's Benefits); Silbowitz v. Secy. of Health, Education,

and Welfare , 397 F. Supp. 862 (S.D. Fla. 1975). (Three-judge court),

appeal docketed sub nom Mathews v. Silbowitz , No. 75-712 (husband's

benefits). See also Kalina v. Railroad Retirement Board , ___ F. 2d

___, No. 75-2256 (CA6 Sept. 13, 1976) (spouse's annuity under the Railroad

Retirement Act, 46 U.S.C. § 234a(e)(3)(ii)).

(Husband's Benefits); Silbowitz v. Secy. of Health, Education,

and Welfare , 397 F. Supp. 862 (S.D. Fla. 1975). (Three-judge court),

appeal docketed sub nom Mathews v. Silbowitz , No. 75-712 (husband's

benefits). See also Kalina v. Railroad Retirement Board , ___ F. 2d

___, No. 75-2256 (CA6 Sept. 13, 1976) (spouse's annuity under the Railroad

Retirement Act, 46 U.S.C. § 234a(e)(3)(ii)).

[3] Although Mr. Goldfarb did

not pursue an administrative appeal of the denial of his application,

appellant concedes that because the denial was based on his failure to

meet a clear statutory requirement, further administrative review would

have been futile and the initial denial was therefore "final" for purposes

of the District Court's jurisdiction to review it under 42 U.S.C. §

405(g). See Weinberg v. Salfi , 422 U.S. 749, 764-767 (1975).

In order for Mr. Goldfarb to have satisfied § 402(f)(1)(D), his wife

would have to have been earning three times what he earned. According to

Appellant's Brief, p. 25, "As a practical matter, only husbands whose

wives contribute 75 percent of the family income meet [the dependency]

test." That is because in order to meet the test, the wife must have

provided for all of her own half of the family budget, plus half of her

husband's share. For more elaborate descriptions of the dependency

calculation, see 20 CFR § 404.350; Social Security Claims Manual, §§ 2625,

2628. See also Appellant's Brief, at 25-26, and n. 14; Appellee's Brief,

at 5 n. 7.

meet [the dependency]

test." That is because in order to meet the test, the wife must have

provided for all of her own half of the family budget, plus half of her

husband's share. For more elaborate descriptions of the dependency

calculation, see 20 CFR § 404.350; Social Security Claims Manual, §§ 2625,

2628. See also Appellant's Brief, at 25-26, and n. 14; Appellee's Brief,

at 5 n. 7.

[4] The dissent maintains that

this sentence "overstates [the] relevance" of Wiesenfeld and Frontiero . It is sufficient to answer that the principal

propositions argued by appellant and in the dissent -- namely, the focus

on discrimination between surviving, rather than insured, spouses; the

reliance on Kahn v. Shevin , 416 U.S. 351 (1974); the argument that

the presumption of female dependence is empirically supportable; and the

emphasis on the special deference due to classifications in the Social

Security Act -- were all asserted and rejected in one or both of those

cases as justifications for statutes substantially similar in effect to §

402(f)(1)(D).

[5] The disadvantage to the

woman wage earner is even more pronounced in the case of old-age benefits,

to which a similarly unequal dependency requirement applies. 42 U.S.C. §§

402(b), (c)(1)(C). See n. 2, supra . In that situation, where the

insured herself is still living, she is denied not only "the dignity of

knowing [during her working career] that her social security tax would

contribute to their joint welfare when the couple or one of them retired

and her husband's welfare should she predecease him," Goldfarb v.

Secretary of Health, Education and Welfare , 396 F. Supp. 308, 309

(EDNY 1975), but also the more tangible benefit of an increase in the

income of the family unit of which she remains a part.

ring her working career] that her social security tax would

contribute to their joint welfare when the couple or one of them retired

and her husband's welfare should she predecease him," Goldfarb v.

Secretary of Health, Education and Welfare , 396 F. Supp. 308, 309

(EDNY 1975), but also the more tangible benefit of an increase in the

income of the family unit of which she remains a part.

[6] See. e.g. , H. R. Rep.

No. 728, 76th Cong., 1st Sess., at 7 (1939), accompanying the bill that

extended social security benefits for the first time beyond the covered

wage earner himself. The Report emphasizes that the purpose of the

amendments as "to afford more adequate protection to the family as

a unit." (Emphasis supplied.)

[7] This is accepted by

appellant and appellees. See, e.g. , Appellant's Brief, at 13 n. 2;

Appellee's Brief, at 23; Tr. of Oral Arg., at 7.

[8] In any event, gender-based

discriminations against men have been invalidated when they do not "serve

important governmental objectives and [are not] substantially related to

the achievement of those objectives." Craig v. Boren , ___ U.S. ___,

___ (1976). Neither Kahn v. Shevin , 416 U.S. 351 (1974), nor Schlesinger v. Ballard , 419 U.S. 498 (1975), relied on by

appellant, supports a contrary conclusion. The gender-based distinctions

in the statutes involved in Kahn and Ballard were justified

because the only discernible purpose of each was the permissible one of

redressing our society's longstanding disparate treatment of women. Craig v. Boren, supra , at ___ n. 6 (1976).

351 (1974), nor Schlesinger v. Ballard , 419 U.S. 498 (1975), relied on by

appellant, supports a contrary conclusion. The gender-based distinctions

in the statutes involved in Kahn and Ballard were justified

because the only discernible purpose of each was the permissible one of

redressing our society's longstanding disparate treatment of women. Craig v. Boren, supra , at ___ n. 6 (1976).

But "the mere recitation of a benign, compensatory purpose is not an

automatic shield that protects against any inquiry into the actual

purposes underlying a legislative scheme." Weinberger v.

Wiesenfeld , 420 U.S. 636, 648 (1975). That inquiry in this case

demonstrates that § 402(f)(1)(D) has no such remedial purpose. See Part

IV-B, infra . Moreover, the classifications challenged in Wiesenfeld and in this case rather than advantage women to

compensate for past wrongs compounds those wrongs by penalizing women "who

do work and whose earnings contribute significantly to their families'

support." Wiesenfeld, supra , 420 U.S., at 645.

[9] Thus, justifications that

suffice for non-gender-based classifications in the social welfare area do

not necessarily justify gender discriminations. For example, Weinberger

v. Salfi , 422 U.S. 749 (1975), sustained a discrimination designed to

weed out collusive marriages without making case-by-case determinations

between marriages of less than nine months' duration and longer ones on

the ground that

"While such a limitation doubtless proves in particular cases to be

'under-inclusive' or 'over-inclusive' in light of its presumed purpose, it

is nonetheless a widely accepted response to legitimate interests in

administrative economy and certainty of coverage for those who meets its

terms." Id ., at 776.

en marriages of less than nine months' duration and longer ones on

the ground that

"While such a limitation doubtless proves in particular cases to be

'under-inclusive' or 'over-inclusive' in light of its presumed purpose, it

is nonetheless a widely accepted response to legitimate interests in

administrative economy and certainty of coverage for those who meets its

terms." Id ., at 776.

Yet administrative convenience and certainty of result have been found

inadequate justifications for gender-based classifications. Reed v.

Reed , 404 U.S. 71, 76 (1971); Frontiero v. Richardson , 411 U.S.

677, 690 (1973); Stanley v. Illinois , 405 U.S. 645, 656-657 (1972).

Cf. Mathews v. Lucas , 44 U.S.L.W. 5139, 5143 (1976).

[10] This argument is made for

the first time in Appellant's Brief. The Jurisdictional Statement argued

only the rationality of "extending to women . . . the presumption of

dependency." J. St., at 11.

[11] Although presumed need

has been a factor in determining the amounts of social security benefits,

in addition to the extent of contributions made to the system, the primary

determinants of the benefits received are the years worked and amount

earned by the covered worker. 42 U.S.C. §§ 414, 415. See Weinberger v.

Wiesenfeld . 420 U.S. 636, 647, and nn. 14, 15 (1975). In any event,

need is not a requirement for inclusion in any beneficiary category, 42

U.S.C. § 402, and from the beginning was intended to be irrelevant to the

right to receive benefits. See H. R. Rep. No. 615, 74th Cong., 1st Sess.,

at 1 (1935).

[12] Old-age and survivors'

benefits may be paid to the insured wage earner himself, 42 U.S.C. §

402(2); his spouse, while he is still alive, § 402(b),(c), or after his

death, § 402(e),(f),(g); his children, § 402(d); and his parents, §

402(h).

from the beginning was intended to be irrelevant to the

right to receive benefits. See H. R. Rep. No. 615, 74th Cong., 1st Sess.,

at 1 (1935).

[12] Old-age and survivors'

benefits may be paid to the insured wage earner himself, 42 U.S.C. §

402(2); his spouse, while he is still alive, § 402(b),(c), or after his

death, § 402(e),(f),(g); his children, § 402(d); and his parents, §

402(h).

[13] Dependency is a

prerequisite to qualification for parents' benefits, § 402(h)(1)(B),

children's benefits, § 402(d)(1)(C), husbands' benefits, § 402(c)(1)(C),

and widowers' benefits, § 402(f)(1)(D). (Certain children are "deemed"

dependent, § 402(d)(3). This presumption was upheld as sufficiently

accurate to pass scrutiny on grounds of "administrative convenience," Mathews v. Lucas , 44 U.S.L.W. 5139 (1976).)

[14] This payment essentially

amounted to 3«% of the wage earner's earnings while covered, less the

amount received as an old-age pension. Social Security Act § 203, 49 Stat.

623 (1935).

[15] See also remarks of

Senator Harrison, 84 Cong. Rec. 8827 (1939). To the extent that this

statement indicates that Congress found widows and orphans needier than

other dependents , it may support a discrimination between dependent

widows and dependent widowers, but it certainly demonstrates a

congressional assumption that widows are dependent, rather than an

intention to aid nondependent widows because of a finding that they are

needier than nondependent widowers.

[16] See also Final Report of

the Advisory Council on Social Security at 24 (1938): "The inadequacy of

the benefits payable during the early years of the old-age insurance

program is more marked where the benefits must support not only the

annuitant himself, but also his wife."

[17] See also the further

excerpts from and discussion of the legislative history in Wiesenfeld , 420 U.S. at 644 n. 13.

lso Final Report of

the Advisory Council on Social Security at 24 (1938): "The inadequacy of

the benefits payable during the early years of the old-age insurance

program is more marked where the benefits must support not only the

annuitant himself, but also his wife."

[17] See also the further

excerpts from and discussion of the legislative history in Wiesenfeld , 420 U.S. at 644 n. 13.

[18] In fact, the legislative

history suggests that Congress proceeded casually on a "then generally

accepted" stereotype and did not focus on the possible expense of

determining dependence in every case.