Califano v. Goldfarb

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

No. 75-699 Argued: October 5, 1976 --- Decided: March 2, 1977
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 (OASDI) program, 42 U.S.C. §§ 40131 (1970 ed. and Supp. V), 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. [n1] The question in this case is [p202] 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). [n2] We noted probable jurisdiction. 424 U.S. 906 (1976). We affirm.

I

Mrs. Hannah Goldfarb worked as a secretary in the New York City public school system for almost 25, years until [p203] 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 aged 72, a retired federal employee. Leon duly applied for widower's benefits. The application was denied with the explanation:

You do not qualify for a widower's benefit because you do not meet one of the requirements for such entitlement. This requirement is that you must have been receiving at least one half support from your wife when she died. [n3]

The District Court declared § 402(f)(1)(D) unconstitutional primarily on the authority of Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), stating:

[Section 402(f)(1)(D)] and its application to this plaintiff, "deprive women of protection for their families which men receive as a result of their employment." Weinberger v. Wiesenfeld, 420 U.S. 636, 646 . . . (1975). See also Frontiero v. Richardson, 411 U.S. 677 . . . (1973)

* * * *

Whatever may have been the ratio of contribution to family expenses of the Goldfarbs while they both [p204] worked, Mrs. Goldfarb was entitled to the dignity of knowing that her social security tax would contribute to their joint welfare when the couple or one of them retired, and to her husband's welfare should she predecease him. She paid taxes at the same rate as men, and there is not the slightest scintilla of support for the proposition that working women are less concerned about their spouses' welfare in old age than are men.

396 F.Supp. at 308-309.

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, 411 U.S. 677 (1973), plainly require affirmance of the judgment of the District Court. [n4]

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 [p205] receive the increased benefits if she in fact provided over one-half of her husband's support. To justify the classification, the Secretary of Defense argued:

[A]s an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon 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 upon 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 survivors' benefits for himself and his infant son. Benefits were allowed the baby under 42 U.S.C. § 402(d) (1970 ed., Supp. III), 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] the notion that men are more likely than women [p206] to be the primary supporters of their spouses and children is not entirely without empirical support, . . . such a gender-based generalizations 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. . . . [I]n 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.

Id. at 645.

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 own 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 [p207] 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 overbroad" generalizations, Schlesinger v. Ballard, supra 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.

Brief for Appellant 12.

But Weinberger v. Wiesenfeld rejected the virtually identical argument when appellant's predecessor argued that the statutory classification there attacked should be regarded from the perspective of the prospective beneficiary, and not from that of the covered wage earner. The Secretary in that case 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 [p208] males.

Brief for Appellant in No. 73-1892, O.T. 1974, p. 14. 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, Brief for Appellant 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. 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. [n5] 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.

Wiesenfeld, supra at 654-655 (POWELL, J., concurring). [p209] 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 (POWELL, J., concurring), [n6] and the section discriminates against one particular category of family -- that in which the female spouse is a wage earner covered by social security. [n7] 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. [n8] [p210]

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 noncontractual 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, id. at 611:

Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as [Social Security], we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.

See also Weinberger v. Salfi, supra 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 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 [p211] the achievement of those objectives.

Craig v. Boren, 429 U.S. 190, 197 (197). [n9] Such classifications, however, have frequently been revealed, on analysis, to rest only upon "old notions" and "archaic and overbroad" generalizations, Stanton v. Stanton, 421 U.S. at 14; Schlesinger v. Ballard, 419 U.S. at 508; cf. Mathews v. Lucas, 427 U.S. 495, 513 (1976), and so have been found to offend the prohibitions against denial of equal protection of the law. Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Stanton v. Stanton, supra; Craig v. Boren, supra. See also Stanley v. Illinois, 405 U.S. 645 (1972); Taylor v. Louisiana, 419 U.S. 522 (1975).

Therefore, Wiesenfeld, supra at 646-647, expressly rejected the argument of appellant's predecessor, relying on Flemming v. Nestor, that the "noncontractual" 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 "noncontractual" does not mean that "a covered employee has [p212] 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 need 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 from § 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, 420 U.S. at 645; Kahn v. Shevin, supra at 354 n. 7. [n10]

But "inquiry into the actual purposes" of the discrimination, [p213] Wiesenfeld, supra at 648, proves the contrary. First, § 402(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. [n11] 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. Jimenez 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. [n12] Moreover, every family member other than a wife or widow is eligible for benefits only if a dependent of the covered wage earner. [n13] This accords [p214] 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 workforce. 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 nondependent 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, provided pension benefits only to the wage earner himself, with a lump-sum payment to his estate under certain circumstances. [n14] 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 to the family as a unit." H.R.Rep. No. 728, 76th Cong., 1st Sess., 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 [p215] of survivors' benefit because

[t]he 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). [n15] 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." [n16] 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 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 [p216] Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973). [n17]

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., 38 (1949). (Emphasis supplied in part.) 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 statute, and not a lesser protection deliberately made because of lesser need. Although the original 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., 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 [p217] 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, 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. [n18] 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. Title 42 U.S.C. § 402(f)(1) (1970 ed. and Supp. V), in pertinent part, provides:

The widower . . . of an individual who died a fully insured individual, if such widower --

(A) has not remarried,

* * * *

(b)(i) has attained age 60, or (ii) has attained age 50 . . . and is under a disability . . .

(C) has filed application for widower's insurance benefits . . . ,

(D)(i) was receiving at least one-half of his support . . . from such individual at the time of her death, or if such individual had a period of disability which did not end prior to the month in which she died, at the time such period began or at the time of her death, and filed proof of such support within two years after the date of such death . . or (ii) was receiving at least one-half of his support . . . from such individual at the time she became entitled to old-age . . . insurance benefits . . and filed proof of such support within two years after the month in which she became entitled to such benefits . . . and,

(E) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of his deceased wife,

shall be entitled to a widower's insurance benefit. . . .

Compare 42 U.S.C. § 402(e)(1) (1970 ed. and Supp. V), which provides, in pertinent part:

The widow . . . of an individual who died a fully insured individual, if such widow . . .

(A) is not married,

(B)(i) has attained age 60, or (ii) has attained age 50 . . . and is under a disability. . . .

(C)(i) has filed application for widow's insurance benefits . . . and

(D) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of such deceased individual,

shall be entitled to a widow's insurance benefit. . . .

2. The decision also applied to § 402(c)(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, Civ. No. C74-194 (ND Ohio, Feb. 12, 1976), appeal docketed sub nom. Califano 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. Califano v. Coffin, No. 75-791 (both husband's and widower's benefits); Jablon v. Secretary of Health, Education and Welfare, 399 F.Supp. 118 (Md.1975) (three-judge court), appeal docketed sub nom. Califano v. Jablon, No. 75-739 (husband's benefits); Silbowitz v. Secretary of Health, Education and Welfare, 397 F.Supp. 862 (SD Fla.1975) (three-judge court), appeal docketed sub nom. Califano v. Silbowitz, No. 75-712 (husband's benefits). See also Kalina v. Railroad Retirement Bd., 541 F.2d 1204 (CA6 1976) (spouse's annuity under the Railroad Retirement Act of 1974, 45 U.S.C. § 231a(c)(3)(ii) (1970 ed., Supp. V)).

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. § 40(g). See Weinberger 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 Brief for Appellant 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 (1976); Social Security Claims Manual, §§ 2625, 2628. See also Brief for Appellant 25-26, and n. 14; Brief for Appellee 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) (1970 ed. and Supp. V). 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 to her husband's welfare should she predecease him,

396 F.Supp. 308, 309 (EDNY 1975) (opinion below), 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., 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 was "to afford more adequate protection to the family as a unit." (Emphasis supplied.)

7. This is accepted by appellant and appellee. See, e.g., Brief for Appellant 13 n. 2; Brief for Appellee 23; Tr. of Oral Arg. 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, 429 U.S. 190, 197 (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 198 n. 6.

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.

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 advantaging 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 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:

While such a limitation doubtless proves in particular cases to be "underinclusive" 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 meet 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, 427 U.S. 495, 509-510 (1976).

10. This argument is made for the first time in appellant's brief. The Jurisdictional Statement, p. 11, argued only the rationality of "extending to women . . . the presumption of dependency."

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 (1970 ed. and Supp. V). See Weinberger v. Wiesenfeld, 420 U.S. at 647, and nn. 14, 15. In any event, need is not a requirement for inclusion in any beneficiary category, 42 U.S.C. § 402 (1970 ed. and Supp. V), 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., 1 (1935).

12. Old-age or survivors' benefits may be paid to the insured wage earner himself, 42 U.S.C. § 402(a) (1970 ed. and Supp. V); 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, 427 U.S. 495 (1976).)

14. This payment essentially amounted to 3 1/2% of the wage earner's earnings while covered, less the amount received as an old-age pension. Social Security Act § 203, 49 Stat. 623.

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 in Hearings on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 30 (1939):

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.
Comments