# SSR 77-26c: 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

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_77_26c

## Section

- **Citation:** SSR 77-26c
- **Heading:** 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
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Husband's Insurance Benefits / SSR 77-26c

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_77_26c. Check the current official text before relying on it. Not legal advice.