Orr v. Orr


No. 77-1119 Argued: November 27, 1978 --- Decided: March 5, 1979
MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce. [n1]

On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $1,240 per month in alimony. On July 28, 1976, Mrs. Orr [p271] initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr's petition, Mr. Orr submitted in his defense a motion requesting that Alabama's alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands, but never upon wives. The Circuit Court denied Mr. Orr's motion and entered judgment against him for $5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment. On March 16, 1977, the Court of Civil Appeals of Alabama sustained the constitutionality of the Alabama statutes, 351 So.2d 904. On May 24, the Supreme Court of Alabama granted Mr. Orr's petition for a writ of certiorari, but on November 10, without court opinion, quashed the writ as improvidently granted. 351 So.2d 906. We noted probable jurisdiction, 436 U.S. 924 (1978). We now hold the challenged Alabama statutes unconstitutional, and reverse.


We first address three preliminary questions not raised by the parties or the Alabama courts below, but which nevertheless may be jurisdictional, and therefore are considered of our own motion.

The first concerns the standing of Mr. Orr to assert in his defense the unconstitutionality of the Alabama statutes. It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay. [n2] It is therefore possible that his [p272] success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands, as well as wives. In that event, Mr. Orr would remain obligated to his wife. It is thus argued that the only "proper plaintiff" would be a husband who requested alimony for himself, and not one who merely objected to paying alimony.

This argument quite clearly proves too much. In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e.g., by repealing the statute as a whole). In this case, if held unconstitutional, the Alabama divorce statutes could be validated by, inter alia, amendments which either (1) permit awards to husbands as well as wives or (2) deny alimony to both parties. It is true that, under the first disposition, Mr. Orr might gain nothing from his success in this Court, although the hypothetical "requesting" plaintiff would. However, if, instead, the State takes the second course and denies alimony to both spouses, it is Mr. Orr, and not the hypothetical plaintiff, who would benefit. Because we have no way of knowing how the State will, in fact, respond, unless we are to hold that underinclusive statutes can never be challenged because any plaintiff's success can theoretically be thwarted, Mr. Orr must be held to have standing here. We have on several occasions considered this inherent problem of challenges to underinclusive statutes, Stanton v. Stanton, 421 U.S. 7, 17 (1975); Craig v. Boren, 429 U.S. 190, 210 n. 24 (1976), and have not denied a plaintiff standing on this ground. [p273]

There is no question but that Mr. Orr bears a burden he would not bear were he female. The issue is highlighted, although not altered, by transposing it to he sphere of race. There is no doubt that a state law imposing alimony obligations on blacks but not whites could be challenged by a black who was required to pay. The burden alone is sufficient to establish standing. Our resolution of a statute's constitutionality often does "not finally resolve the controversy as between th[e] appellant and th[e] appellee," Stanton v. Stanton, 421 U.S. at 17. We do not deny standing simply because the "appellant, although prevailing here on the federal constitutional issue, may or may not ultimately win [his] lawsuit." Id. at 18. The holdings of the Alabama courts stand as a total bar to appellant's relief; his constitutional attack holds the only promise of escape from the burden that derives from the challenged statutes. He has therefore

alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions,

Linda R. S. v. Richard D., 410 U.S. 614, 616 (1973), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). Indeed, on indistinguishable facts, this Court has stated that a party's standing will be sustained. In Linda R. S. v. Richard D., supra at 619 n. 5 (MARSHALL, J.), we stated that the parent of a legitimate child who must by statute pay child support has standing to challenge the statute on the ground that the parent of an illegitimate child is not equally burdened. [n3] [p274]

A second preliminary question concerns the timeliness of appellant's challenge to the constitutionality of the statutes. No constitutional challenge was made at the time of the original divorce decree; Mr. Orr did not interpose the Constitution until his ex-wife sought a contempt judgment against him for his failure to abide by the terms of the decree. This unexcused tardiness might well have constituted a procedural default under state law, and if Alabama had refused to hear Mr. Orr's constitutional objection on that ground, we might have been without jurisdiction to consider it here. See C. Wright, Federal Courts 541-542 (3d ed.1976) .

But, in this case, neither Mrs. Orr nor the Alabama courts at any time objected to the timeliness of the presentation of the constitutional issue. Instead, the Alabama Circuit and Civil Appeals Courts both considered the issue to be properly presented, and decided it on the merits. See 351 So.2d at 905; App. to Juris.Statement 22a. In such circumstances, the objection that Mr. Orr's complaint

"comes too late" . . . is clearly untenable. . . . [S]ince the state court deemed the federal constitutional question to be before it, we could not treat the decision below as resting upon an adequate and independent state ground even if we were to conclude that the state court might properly have relied upon such a ground to avoid deciding the federal question.

Beecher v. Alabama, 389 U.S. 35, 37 n. 3 (1967). This is merely an application of the

elementary rule that it is irrelevant to inquire . . . when a Federal question was raised in a court [p275] below when it appears that such question was actually considered and decided.

Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134 (1914). Accord, Harlin v. Missouri, 439 U.S. 459 (1979); Jenkins v. Georgia, 418 U.S. 153, 157 (1974); Raley v. Ohio, 360 U.S. 423, 436 (1959). See C. Wright, supra at 542. [n4]

The third preliminary question arises from indications in the record that Mr. Orr's alimony obligation was part of a stipulation entered into by the parties, which was then incorporated into the divorce decree by the Lee County Circuit Court. Thus, it may be that, despite the unconstitutionality of the alimony statutes, Mr. Orr may have a continuing obligation to his former wife based upon that agreement -- in essence, a matter of state contract law. [n5] If the Alabama [p276] courts had so held, and had anchored their judgments in this case on that basis, an independent and adequate state ground might exist and we would be without power to hear the constitutional argument. See Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945); Fox Film Corp. v. Muller, 296 U.S. 207 (1935). And if there were ambiguity as to whether the State's decision was based on federal or state grounds, it would be open to this Court not to determine the federal question, but to remand to the state courts for clarification as to the ground of the decision. See California v. Krivda, 409 U.S. 33 (1972).

But there is no ambiguity here. At no time did Mrs. Orr raise the stipulation as a possible alternative ground in support of her judgment. Indeed, her brief in the Alabama Court of Civil Appeals expressly stated that

[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes.

App. to Juris.Statement 25a. The Alabama Circuit and Civil Appeals Courts reached and decided the federal question without considering any state law issues, the latter specifying that

[t]he sole issue before this court is whether Alabama's alimony statutes are unconstitutional. We find they are not unconstitutional, and affirm.

351 So.2d at 905. While no reason was given by the State Supreme Court's majority for quashing the writ of certiorari, the concurring and dissenting opinions mention only the federal constitutional issue and do not mention the stipulation. See 351 So.2d at 906-910. And Mrs. Orr did not even raise the point in this Court. On this record, then, our course is clear and dictated by a long line of decisions.

Where the state court does not decide against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually [p277] entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment. We cannot refuse jurisdiction because the state court might have based its decision, consistently with the record, upon an independent and adequate nonfederal ground.

Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98 (1938). Accord, United Air Lines, Inc. v. Mahin, 410 U.S. 623, 630-631 (1973); Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375-376 (1968); Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 197 n. 1 (1944); International Steel & Iron Co. v. National Surety Co., 297 U.S. 657, 666 (1936); Grayson v. Harris, 267 U.S. 352, 358 (1925); Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 120 (1924); Rogers v. Hennepin County, 240 U.S. 184, 188-189 (1916). See C. Wright, Federal Courts, at 544. [n6]

Our analysis of these three preliminary questions, therefore, indicates that we do have jurisdiction over the constitutional challenge asserted by Mr. Orr. [n7] As an Art. III "case or [p278] controversy" has been properly presented to this Court, we now turn to the merits. [n8]


In authorizing the imposition of alimony obligations on husbands, but not on wives, the Alabama statutory scheme

provides that different treatment be accorded . . . on the basis of . . . sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause,

Reed v. [p279] Reed, 404 U.S. 71, 75 (1971). The fact that the classification expressly discriminates against men, rather than women, does not protect it from scrutiny. Craig v. Boren, 429 U.S. 190 (1976). "To withstand scrutiny" under the Equal Protection Clause,

"classifications by gender must serve important governmental objectives, and must be substantially related to achievement of those objectives."

Califano v. Webster, 430 U.S. 313, 316-317 (1977). We shall, therefore, examine the three governmental objectives that might arguably be served by Alabama's statutory scheme.

Appellant views the Alabama alimony statutes as effectively announcing the State's preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for their objective the reinforcement of that model among the State's citizens. Cf. Stern v. Stern, 165 Conn.190, 332 A.2d 78 (1973). We agree, as he urges, that prior cases settle that this purpose cannot sustain the statutes. [n9] Stanton v. Stanton, 421 U.S. 7, 10 (1975), held that the "old notio[n]" that "generally it is the man's primary responsibility [p280] to provide a home and its essentials," can no longer justify a statute that discriminates on the basis of gender. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas," id. at 14-15. See also Craig v. Boren, supra, at 198. If the statute is to survive constitutional attack, therefore, it must be validated on some other basis.

The opinion of the Alabama Court of Civil Appeals suggests other purposes that the statute may serve. Its opinion states that the Alabama statutes were "designed" for "the wife of a broken marriage who needs financial assistance," 351 So.2d at 905. This may be read as asserting either of two legislative objectives. One is a legislative purpose to provide help for needy spouses, using sex as a proxy for need. The other is a goal of compensating women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce. We concede, of course, that assisting needy spouses is a legitimate and important governmental objective. We have also recognized

[r]eduction of the disparity in economic condition between men and women caused by the long history of discrimination against women . . . as . . . an important governmental objective,

Califano v. Webster, supra, at 317. It only remains, therefore, to determine whether the classification at issue here is "substantially related to achievement of those objectives." Ibid. [n10]

Ordinarily, we would begin the analysis of the "needy spouse" objective by considering whether sex is a sufficiently "accurate proxy," Craig v. Boren, supra, at 204, for dependency to establish that the gender classification rests "‘upon [p281] some ground of difference having a fair and substantial relation to the object of the legislation,'" Reed v. Reed, supra at 76. Similarly, we would initially approach the "compensation" rationale by asking whether women had, in fact, been significantly discriminated against in the sphere to which the statute applied a sex-based classification, leaving the sexes "not similarly situated with respect to opportunities" in that sphere, Schlesinger v. Ballard, 419 U.S. 498, 508 (1975). Compare Califano v. Webster, supra at 318, and Kahn v. Shevin, 416 U.S. 351, 353 (1974), with Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975). [n11]

But in this case, even if sex were a reliable proxy for need, and even if the institution of marriage did discriminate against women, these factors still would "not adequately justify the salient features of" Alabama's statutory scheme, Craig v. Boren, supra at 202-203. Under the statute, individualized hearings at which the parties' relative financial circumstances are considered already occur. See Russell v. Russell, 247 Ala. 284, 286, 24 So.2d 124, 126 (1945); Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). There is no reason, therefore, to use sex as a proxy for need. Needy males could be helped along with needy females with little if any additional burden on the State. In such circumstances, not even an administrative convenience rationale exists to justify operating by generalization or proxy. [n12] Similarly, since individualized hearings can [p282] determine which women were, in fact, discriminated against vis-a-vis their husbands, as well as which family units defied the stereotype and left the husband dependent on the wife, Alabama's alleged compensatory purpose may be effectuated without placing burdens solely on husbands. Progress toward fulfilling such a purpose would not be hampered, and it would cost the State nothing more, if it were to treat men and women equally by making alimony burdens independent of sex.

Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are, in fact, similarly situated to the women the statute aids,

Weinberger v. Wiesenfeld, supra, at 653, and the effort to help those women would not in any way be compromised.

Moreover, use of a gender classification actually produces perverse results in this case. As compared to a gender-neutral law placing alimony obligations on the spouse able to pay, the present Alabama statutes give an advantage only to the financially secure wife whose husband is in need. Although such a wife might have to pay alimony under a gender-neutral statute, the present statutes exempt her from that obligation. Thus, "[t]he [wives] who benefit from the disparate treatment are those who were . . . nondependent on their husbands," Califano v. Goldfarb, 430 U.S. 199, 221 (1977) (STEVENS, J., concurring in judgment). They are precisely those who are not "needy spouses" and who are "least likely to have been victims of . . . discrimination," ibid., by the institution of marriage. A gender-based classification which, as compared to a [p283] gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.

Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the "proper place" of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 173-174 (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies, and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound -- if only indirectly -- to the benefit of those without need for special solicitude.


Having found Alabama's alimony statutes unconstitutional, we reverse the judgment below and remand the cause for further proceedings not inconsistent with this opinion. That disposition, of course, leaves the state courts free to decide any questions of substantive state law not yet passed upon in this litigation. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 109 (1938); C. Wright, Federal Courts, at 544. See South Dakota v. Opperman, 428 U.S. 364, 396 (1976) (MARSHALL, J., dissenting); United Air Lines, Inc. v. Mahin, 410 U.S. at 632; California v. Green, 399 U.S. 149, 169-170 (1970); Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 512 (1938); Georgia R. & Elec. Co. v. Decatur, 297 U.S. 620, 623-624 (1936). Therefore, it is open to the Alabama courts on remand to consider whether Mr. Orr's stipulated agreement to [p284] pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. [n13]

Reversed and remanded.

1. The statutes, Ala.Code, Tit. 30 (1975), provide that:

§ 30-2-51 . . . If the wife has no separate estate or if it be insufficient for her maintenance, the judge, upon granting a divorce, at his discretion, may order to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family.

§ 32-52 . . . If the divorce is in favor of the wife for the misconduct of the husband, the judge trying the case shall have the right to make an allowance to the wife out of the husband's estate, or not make her an allowance as the circumstances of the case may justify, and if an allowance is made, it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case.

§ 30-2-53 . . . If the divorce is in favor of the husband for the misconduct of the wife and if the judge in his discretion deems the wife entitled to an allowance, the allowance must be regulated by the ability of the husband and the nature of the misconduct of the wife.

The Alabama Supreme Court has held that

there is no authority in this state for awarding alimony against the wife in favor of the husband. . . . The statutory scheme is to provide alimony only in favor of the wife.

Davis v. Davis, 279 Ala. 643, 644, 189 So.2d 158, 160 (1966).

2. There is some uncertainty on this point. It may be that appellant's Circuit Court motion challenging the constitutionality of the statutes could be construed as constituting a claim for alimony. The Appeals Court opinion refers to one of Mr. Orr's arguments as challenging the failure of the statutes to "provide for an award of alimony to . . . males . . . ," 351 So.2d 904, 905 (1977), and, in oral argument, appellant's attorney characterized his motion as asserting a claim to such an award. Tr. of Oral Arg. 7-8. Of course, whether or not this was the proper way to assert a claim for alimony may be a question of state law, but the state courts did not challenge appellant's standing on this or any other ground.

3. Careful examination of appellant's allegations reveals that he may not need to rely upon these arguments to demonstrate his standing, for he alleges that he will receive some relief no matter which gender-neutral reform of the statutes Alabama chooses to make. Even if Alabama chooses to burden both men and women with alimony requirements in appropriate circumstances, Mr. Orr argues that a gender-neutral statute would result in lower payments on his part. He argues that the current statutes award alimony to wives based not solely upon need or comparative financial circumstances, but also upon gender-related factors -- e.g., the State's view that a man must maintain his wife in the manner to which she has been accustomed, Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). He also argues that alimony agreements are not automatically incorporated into court decrees, but rather are usually first reviewed as to their fairness to the wife, but not to the husband, see Russell v. Russell, 247 Ala. 284, 286, 24 So.2d 124, 126 (1945). Given our disposition of the case, we need not resolve these allegations, but they serve to render unassailable appellant's standing to assert the unconstitutionality of the statutes.

4. This does not preclude any other State, or even Alabama in another case, from holding that contempt proceedings are too late in the process to challenge the constitutionality of a divorce decree already entered without constitutional objection -- assuming, of course, that the State's prior proceedings permit fair opportunity to assert the federal right, see NAACP v. Alabama, 377 U.S. 288 (1964). Indeed, as our Brother POWELL points out, post at 286, Alabama apparently has a similar rule. See Hughes v. Hughes, 362 So.2d 910 (Ala. Civ.App.), cert. dismissed as improvidently granted, 362 So.2d 918 (Ala.1978), appeal docketed, No. 78-1071. There is, therefore, no reason for concern that today's decision might nullify existing alimony obligations. But the fact that state courts can decline to hear such tardily raised constitutional challenges does not mean that, as a matter of federal law, they must do so. And where they decide instead to reach the federal question, this Court has jurisdiction. See Beecher v. Alabama, 389 U.S. 35, 37 n. 3 (1967), and cases cited in text, supra, this page.

5. Whether Mrs. Orr's contempt judgment would survive on the basis of the stipulation alone depends upon the resolution of somewhat knotty state law problems. The foremost of these is the fact that the present suit is not a simple action for breach of contract, but rather a contempt proceeding for disobeying the court's divorce decree. Moreover, under Alabama law, the divorce court judge does not automatically approve stipulated settlements, but must review them for fairness. Russell v. Russell, supra. How the Alabama courts would treat Mr. Orr's stipulation after the invalidation of the gender-based alimony statutes is a matter which we cannot, and would not, predict.

6. The fact that the State Supreme Court merely quashed the petition for certiorari, so that the highest state court actually to decide the merits of the case was the Court of Appeals, does not alter this result. In Cicenia v. Lagay, 357 U.S. 504, 507-508, n. 2 (1958), overruled on other grounds, Miranda v. Arizona, 384 U.S. 436, 479 n. 48 (1966), for example, the New Jersey Superior Court decided the case on federal constitutional grounds, although state grounds might have been available, and the State Supreme Court denied certification without giving reasons -- precisely the situation present here. In fact, the claim that an independent state ground existed was even stronger in Cicenia than here, because there the trial court, the Essex County Court, had rested its decision on state law. Nonetheless, Cicenia held:

Since the Superior Court had dealt with petitioner's constitutional claims on the merits . . . jurisdiction exists. . . . [W]e shall not assume that the New Jersey Supreme Court's decision denying leave to appeal was based on th[e] nonfederal ground.

357 U.S. at 507-508, n. 2.

7. Our Brother REHNQUIST's dissent contends that Doremus v. Board of Education, 342 U.S. 429 (1952), requires dismissal of Mr. Orr's appeal. The quotation from Doremus cited by our Brother REHNQUIST, post at 299, merely confirms the obvious proposition that a state court cannot confer standing before this Court on a party who would otherwise lack it. But that proposition is wholly irrelevant to this case. Although a state court cannot confer standing in this Court, it can decline to place purely state law obstacles in the way of an appellant's right to have this Court decide his federal claim. Our Brother REHNQUIST argues that a matter of state contract law, albeit unsettled, denies Orr his otherwise clear standing. But that could only be the case if the Alabama courts had construed the stipulation as continuing to bind Mr. Orr -- something which the Alabama courts did not do. By addressing and deciding the merits of Mr. Orr's constitutional argument, the Alabama courts have declined to interpose this obstacle to Mr. Orr's standing.

8. Our Brother POWELL's dissent makes two objections to our reaching the merits of this case. The first is that this Court should abstain from deciding the constitutional issue until the cause is remanded to afford the Alabama Supreme Court a second opportunity to consider the case. For authority, he cites opinions applying the so-called "Pullman abstention" doctrine. See Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). But that doctrine is applicable only where the state court to be deferred to has not previously examined the case. Not one of the long string of opinions cited by our Brother POWELL, post at 285-286, approved abstention in a situation like this one, where the court to which the question would be referred already considered the case.

The more surprising, indeed disturbing, objection made by our Brother POWELL is the suggestion that the parties may have colluded to bring the constitutional issue before this Court. Post at 288-289, and n. 4. No evidence whatever, within or outside the record, supports that accusation. And our Brother POWELL suggests none. Indeed, it is difficult to imagine what possible interest Mrs. Orr could have in helping her ex-husband resist her demand for $5,524 in back alimony.

9. Appellee attempts to buttress the importance of this objective by arguing that, while

[t]he common law stripped the married woman of many of her rights and most of her property, . . . it attempted to partially compensate by giving her the assurance that she would be supported by her husband.

Brief for Appellee 11-12. This argument, that the "support obligation was imposed by the common law to compensate the wife for the discrimination she suffered at the hands of the common law," id. at 11, reveals its own weakness. At most, it establishes that the alimony statutes were part and parcel of a larger statutory scheme which invidiously discriminated against women, removing them from the world of work and property and "compensating" them by making their designated place "secure." This would be reason to invalidate the entire discriminatory scheme -- not a reason to uphold its separate invidious parts. But appellee's argument is even weaker when applied to the facts of this case, as Alabama has long ago removed, by statute, the elements of the common law appellee points to as justifying further discrimination. See Ala. Const., Art. X, § 209 (married women's property rights).

10. Of course, if, upon examination, it becomes clear that there is no substantial relationship between the statutes and their purported objectives, this may well indicate that these objectives were not the statutes' goals in the first place. See Ely, The Centrality and Limits of Motivation Analysis, 15 San Diego L.Rev. 1155 (1978).

11. We would also consider whether the purportedly compensatory "classifications in fact penalized women," and whether "the statutory structure and its legislative history revealed that the classification was not enacted as compensation for past discrimination." Califano v. Webster, 430 U.S. at 317.

12. It might be argued that Alabama's rule at least relieves the State of the administrative burden of actions by husbands against their wives for alimony. However, when the wife is also seeking alimony, no savings will occur, as a hearing will be required in any event. But even when the wife is willing to forgo alimony, it appears that, under Alabama law, savings will still not accrue, as Alabama courts review the financial circumstances of the parties to a divorce despite the parties' own views -- even when settlement is reached. See Russell v. Russell, 247 Ala. 284, 286, 24 So.2d 124, 126 (1945). Even were this not true, and some administrative time and effort were conserved,

[t]o give a mandatory preference to members of either sex . . . merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause,

Reed v. Reed, 404 U.S. 71, 76 (1971).

13. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 109 (1938), is dispositive to this effect. There, the Indiana state courts had available two potential grounds for upholding the actions of a public school in dismissing a teacher. One was a matter purely of state law; the other required holding that the dismissal had not violated the Contracts Clause of the Federal Constitution. The Indiana courts chose the latter course, and did not pass upon the state question. While recognizing that the state ground could have been relied upon, Anderson held, as we have held here, that the decision of the state court to reach the merits of the constitutional question without relying on the potential state ground gave this Court jurisdiction. As we have done here, the Court in Anderson proceeded to decide the federal question against the State, and reversed the judgment below. The case was remanded, the Court noting that the state law ground was still available as a defense for the school, and could be so considered by the state courts. Similarly, the effect of Mr. Orr's stipulation, and any other matter of substantive state law not yet passed upon, may now be considered by the Alabama courts on remand.