Orr v. Orr,
440 U.S. 268 (1979)

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U.S. Supreme Court

Orr v. Orr, 440 U.S. 268 (1979)

Orr v. Orr

No. 77-1119

Argued November 27, 1978

Decided March 5, 1979

440 U.S. 268


Following a stipulation between appellant husband and appellee wife, in which appellant agreed to pay appellee alimony, an Alabama court, acting pursuant to state alimony statutes under which husbands, but not wives, may be required to pay alimony upon divorce, ordered appellant to make monthly alimony payments. Some two years thereafter, appellee filed a petition seeking to have appellant adjudged in contempt for failing to maintain the alimony payments. At the hearing on the petition appellant, though not claiming that he was entitled to an alimony award from appellee, made the contention (advanced for the first time in that proceeding) that the Alabama statutes, by virtue of their reliance on a gender-based classification, violated the Equal Protection Clause of the Fourteenth Amendment. The trial court, ruling adversely to appellant on that issue, entered judgment against him, which was affirmed on appeal.


1. This Court has jurisdiction over appellant's appeal. Pp. 440 U. S. 271-278.

(a) Appellant's failure to ask for alimony for himself does not deprive him of standing to attack the constitutionality of the Alabama statutes for underinclusiveness. That attack holds the only promise of relief from the burden deriving from the challenged statutes, and appellant 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."

Baker v. Carr, 369 U. S. 186, 369 U. S. 204. Pp. 440 U. S. 271-273.

(b) Had the courts below refused to entertain appellant's constitutional contention on the ground that it was not timely made under applicable state procedures, this Court might have lacked jurisdiction to consider the contention; but no timeliness point was raised or considered below and the constitutional issue was decided on the merits. Under these circumstances, it is irrelevant whether the decision below could have been based upon an adequate and independent state ground. Pp. 440 U. S. 274-275.

(c) No point was raised or considered below that appellant, by virtue of the stipulation, was obliged to make the alimony payments under state contract law.

"Where the state court does not decide

Page 440 U. S. 269

against [an] appellant upon an independent state ground, but deeming the federal question to be before it, actually . . . decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is . . . final. . . ."

Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 303 U. S. 98. Pp. 440 U. S. 275-278.

2. The Alabama statutory scheme of imposing alimony obligations on husbands, but not wives, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 440 U. S. 278-283.

(a) "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, 430 U. S. 316-317. Pp. 440 U. S. 278-279.

(b) The statutes cannot be validated on the basis of the State's preference for an allocation of family responsibilities under which the wife plays a dependent role.

"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."

Stanton v. Stanton, 421 U. S. 7, 421 U. S. 14-15. Pp. 440 U. S. 279-280.

(c) Though it could be argued that the Alabama statutory scheme is designed to provide help for needy spouses, using sex as a proxy for need, and to compensate women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce, these considerations would not justify that scheme, because, under the Alabama statutes, individualized hearings at which the parties' relative financial circumstances are considered already occur. Since such hearings can determine which spouses are needy, as well as which wives were, in fact, discriminated against, there is no reason to operate by generalization. "Thus, the gender-based distinction is gratuitous. . . ." Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 653. Pp. 440 U. S. 280-282.

(d) Use of a gender classification, moreover, actually produces perverse results in this case, because only a financially secure wife whose husband is in need derives an advantage from the Alabama scheme, as compared to a gender-neutral one. Pp. 440 U. S. 282-283.

3. The question remains open on remand whether appellant's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. Pp. 440 U. S. 283-284.

351 So.2d 904, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN,

Page 440 U. S. 270

J., post, p. 440 U. S. 284, and STEVENS, J., post, p. 440 U. S. 284, filed concurring opinions. POWELL, J., filed a dissenting opinion, post, p. 440 U. S. 285. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 440 U. S. 290.

Primary Holding

Equal protection does not permit states to require that only husbands pay alimony.


In order to help women who need financial assistance when a marriage dissolves, Alabama required husbands to pay alimony upon divorce. There was no similar requirement for wives, as a result of the stereotype that women are dependent on husbands during marriage but that the opposite is not true. Orr was required to pay spousal support but argued that the law violated the Equal Protection Clause. The state courts upheld the law's constitutionality.



  • William Joseph Brennan, Jr. (Author)
  • Potter Stewart
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • John Paul Stevens

This law creates a gender-based classification, so its constitutionality must be reviewed under an intermediate scrutiny analysis. It will be upheld only if it further an important government interest and is substantially connected to achieving that interest. The state has cited several interests, including helping spouses who need financial assistance, compensating women for past discrimination during marriage, and helping women enter the workplace. It also argued that it has used gender as a proxy for need. While all of these interests are important, the law fails the substantial relationship prong of the standard. The state already has made individualized hearings available for determining whether a spouse actually needs financial assistance from the other spouse or whether one spouse has been mistreated during the marriage. These gender-neutral procedures are more appropriate because they also allow a husband to receive assistance. No advantage is added by using a gender-based classification based on stereotypes.


  • Harry Andrew Blackmun (Author)


  • John Paul Stevens (Author)


  • Lewis Franklin Powell, Jr. (Author)


  • William Hubbs Rehnquist (Author)
  • Warren Earl Burger

Case Commentary

This statute would not have been upheld under even a moderate standard of review because there was no legitimate reason to believe that the state would be burdened by providing financial assistance for men as well as women.

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