In 1974, the husband of appellee Feenstra (hereafter appellee),
without her knowledge, executed a mortgage on their jointly owned
home as security on the husband's promissory note to appellant. The
husband executed the mortgage pursuant to a now superseded
Louisiana statute (Art. 2404) that gave a husband the unilateral
right to dispose of jointly owned community property without his
spouse's consent. In 1976, after appellee refused to pay her
husband's note, appellant commenced foreclosure proceedings and
instituted the instant action in Federal District Court for
declaratory relief. Appellee asserted a counterclaim challenging
the constitutionality of Art. 2404, and Louisiana and its Governor
were joined as third-party defendants on the counterclaim. The
District Court granted the State's motion for summary judgment.
While appellee's appeal to the Court of Appeals was pending,
Louisiana completely revised its community property code provisions
so as to grant spouses equal control over the disposition of such
property. Because the new code did not take effect until January 1,
1980, it did not control the mortgage executed by appellee's
husband. The Court of Appeals held that Art. 2404 violated the
Equal Protection Clause of the Fourteenth Amendment, but limited
its decision to prospective application because the ruling "would
create a substantial hardship with respect to property rights and
obligations within the State of Louisiana."
Held:
1. Article 2404 violated the Equal Protection Clause.
Gender-based discrimination is unconstitutional absent a showing
that the classification substantially furthers an important
governmental interest, and it is immaterial that, under the earlier
statutory provisions, appellee could have made a "declaration by
authentic act" prohibiting her husband from executing a mortgage on
her home without her consent. The "absence of an insurmountable
barrier" will not redeem an otherwise unconstitutionally
discriminatory law.
Trimble v. Gordon, 430 U.
S. 762,
430 U. S. 774.
Because appellant has failed to offer any justification for the
challenged classification, and because the State, by declining to
appeal from the decision below, has apparently abandoned any claim
that an
Page 450 U. S. 456
important government objective was served by Art. 2404, the
Court of Appeals' judgment is affirmed. Pp.
450 U. S.
459-461.
2. There is no ambiguity on the only other question properly
before this Court, which is whether the Court of Appeals'
prospective decision applies to the mortgage in this case. The
dispute between the parties, at its core, involves the validity of
a single mortgage -- that executed by appellee's husband -- and in
passing on the constitutionality of Art. 2404, the Court of Appeals
clearly intended to resolve that controversy adversely to
appellant. Pp.
450 U. S.
461-463.
609 F.2d 727, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and STEVENS,
JJ., joined. STEWART, J., filed an opinion concurring in the
result, in which REHNQUIST, J., joined,
post, p.
450 U. S.
463.
JUSTICE MARSHALL delivered the opinion of the Court.
In this appeal, we consider the constitutionality of a now
superseded Louisiana statute that gave a husband, as "head and
master" of property jointly owned with his wife, the unilateral
right to dispose of such property without his spouse's consent.
Concluding that the provision violates the Equal Protection Clause
of the Fourteenth Amendment, we affirm the judgment of the Court of
Appeals for the Fifth Circuit invalidating the statute.
I
In 1974, appellee Joan Feenstra filed a criminal complaint
against her husband, Harold Feenstra, charging him with molesting
their minor daughter. While incarcerated on that
Page 450 U. S. 457
charge, Mr. Feenstra retained appellant Karl Kirchberg, an
attorney, to represent him. Mr. Feenstra signed a $3,000 promissory
note in prepayment for legal services to be performed by appellant
Kirchberg. As security on this note, Mr Feenstra executed a
mortgage in favor of appellant on the home he jointly owned with
his wife. Mrs. Feenstra was not informed of the mortgage, and her
consent was not required, because a state statute, former Art. 2404
of the Louisiana Civil Code Ann. (West 1971), gave her husband
exclusive control over the disposition of community property.
[
Footnote 1]
Mrs. Feenstra eventually dropped the charge against her husband.
He did not return home, but instead obtained a legal separation
from his wife and moved out of the State. Mrs. Feenstra first
learned of the existence of the mortgage in 1976, when appellant
Kirchberg threatened to foreclose on her home unless she paid him
the amount outstanding on the promissory note executed by her
husband. After Mrs. Feenstra refused to pay the obligation,
Kirchberg obtained an order of executory process directing the
local sheriff to seize and sell the Feenstra home.
Anticipating Mrs. Feenstra's defense to the foreclosure action,
Kirchberg, in March, 1976 filed this action in the United States
District Court for the Eastern District of Louisiana, seeking a
declaratory judgment against Mrs. Feenstra that he was not liable
under the Truth in Lending Act, 15 U.S.C. ยง 1601
et seq.,
for any nondisclosures concerning the mortgage he held on the
Feenstra home. In her answer to Kirchberg's complaint, Mrs.
Feenstra alleged as a counterclaim that Kirchberg has violated the
Act, but also included a second counterclaim
Page 450 U. S. 458
challenging the constitutionality of the statutory scheme that
empowered her husband unilaterally to execute a mortgage on their
jointly owned home. The State of Louisiana and its Governor were
joined as third-party defendants on the constitutional
counterclaim. The governmental parties, joined by appellant, moved
for summary judgment on this claim. The District Court,
characterizing Mrs. Feenstra's counterclaim as an attack on "the
bedrock of Louisiana's community property system," granted the
State's motion for summary judgment.
430 F.
Supp. 642, 644 (1977). [
Footnote 2]
While Mrs. Feenstra's appeal from the District Court's order was
pending before the Court of Appeals for the Fifth Circuit, the
Louisiana Legislature completely revised its code provisions
relating to community property. In so doing, the State abandoned
the "head and master" concept embodied in Art. 2404, and instead
granted spouses equal control over the disposition of community
property. La.Civ.Code Ann., Art. 2346 (West Supp. 1981). [
Footnote 3] The new code also provided
that community immovables could not be alienated, leased, or
otherwise encumbered without the concurrence of both spouses.
La.Civ.Code Ann., Art. 2347 (West Supp. 1981). [
Footnote 4] These provisions, however, did not
take effect until January 1, 1980, and the Court of Appeals was
therefore required to consider whether Art. 2404, the Civil Code
provision which had authorized Mr. Feenstra to mortgage his home in
1974 without his wife's knowledge or consent, violated the Equal
Protection Clause of the Fourteenth Amendment.
Page 450 U. S. 459
Because this provision explicitly discriminated on the basis of
gender, the Court of Appeals properly inquired whether the
statutory grant to the husband of exclusive control over
disposition of community property was substantially related to the
achievement of an important governmental objective.
See, e.g.,
Wengler v. Druggist Mutual Ins. Co., 446 U.
S. 142 (1980);
Craig v. Boren, 429 U.
S. 190 (1976). The court noted that the State had
advanced only one justification for the provision -- that "[o]ne of
the two spouses has to be designated as the manager of the
community." [
Footnote 5] The
court agreed that the State had an interest in defining the manner
in which community property was to be managed, but found that the
State had failed to show why the mandatory designation of the
husband as manager of the property was necessary to further that
interest. The court therefore concluded that Art. 2404 violated the
Equal Protection Clause. However, because the court believed that a
retroactive application of its decision "would create a substantial
hardship with respect to property rights and obligations within the
State of Louisiana," the decision was limited to prospective
application. 609 F.2d 727, 735-736 (1979). Only Kirchberg appealed
the judgment of the Court of Appeals to this Court. We noted
probable jurisdiction. 446 U.S. 917 (1980). [
Footnote 6]
II
By granting the husband exclusive control over the disposition
of community property, Art. 2404 clearly embodies the
Page 450 U. S. 460
type of express gender-based discrimination that we have found
unconstitutional absent a showing that the classification is
tailored to further an important governmental interest. In
defending the constitutionality of Art. 2404, appellant Kirchberg
does not claim that the provision serves any such interest.
[
Footnote 7] Instead, appellant
attempts to distinguish this Court's decisions in cases such as
Craig v. Boren, supra, and
Orr v. Orr,
440 U. S. 268
(1979), which struck down similar gender-based statutory
classifications, by arguing that appellee Feenstra, as opposed to
the disadvantaged individuals in those cases, could have taken
steps to avoid the discriminatory impact of Art. 2404. Appellant
notes that, under Art. 2334 of the Louisiana Civil Code, in effect
at the time Mr. Feenstra executed the mortgage, Mrs. Feenstra could
have made a "declaration by authentic act" prohibiting her husband
from executing a mortgage on her home without her consent.
[
Footnote 8] By failing to take
advantage of this procedure, Mrs. Feenstra, in appellant's view,
became the "architect of
Page 450 U. S. 461
her own predicament," and therefore should not be heard to
complain of the discriminatory impact of Art. 2404.
By focusing on steps that Mrs. Feenstra could have taken to
preclude her husband from mortgaging their home without her
consent, however, appellant overlooks the critical question:
whether Art. 2404 substantially furthers an important government
interest. As we have previously noted, the "absence of an
insurmountable barrier" will not redeem an otherwise
unconstitutionally discriminatory law.
Trimble v. Gordon,
430 U. S. 762,
430 U. S. 774
(1977).
See Frontiero v. Richardson, 411 U.
S. 677 (1973).
Cf. Taylor v. Louisiana,
419 U. S. 522
(1975);
Reed v Reed, 404 U. S. 71
(1971). Instead, the burden remains on the party seeking to uphold
a statute that expressly discriminates on the basis of sex to
advance an "exceedingly persuasive justification" for the
challenged classification.
Personnel Administrator of Mass. v.
Feeney, 442 U. S. 256,
442 U. S. 273
(1979).
See also Wengler v. Druggist Mutual Ins. Co.,
supra at
446 U. S. 151.
Because appellant has failed to offer such a justification, and
because the State, by declining to appeal from the decision below,
has apparently abandoned any claim that an important government
objective was served by the statute, we affirm the judgment of the
Court of Appeals invalidating Art. 2404. [
Footnote 9]
III
Appellant's final contention is that, even if Art. 2404 violates
the Equal Protection Clause of the Fourteenth Amendment, the
mortgage he holds on the Feenstra home is nonetheless
Page 450 U. S. 462
valid because the Court of Appeals limited its ruling to
prospective application. Appellant asserts that the opinion of the
Court of Appeals is ambiguous on whether the court intended to
apply its prospective ruling to his mortgage, which was executed in
1974, or only to those dispositions of community property made
pursuant to Art. 2404 between December 12, 1979, the date of the
court's decision, and January 1, 1980, the effective date of
Louisiana's new community property law. Appellant urges this Court
to adopt the latter interpretation on the ground that a contrary
decision would create grave uncertainties concerning the validity
of mortgages executed unilaterally by husbands between 1974 and the
date of the Court of Appeals' decision.
We decline to address appellant's concerns about the potential
impact of the Court of Appeals' decision on other mortgages
executed pursuant to Art. 2404. The only question properly before
us is whether the decision of the Court of Appeals applies to the
mortgage in this case, and, on that issue, we find no ambiguity.
[
Footnote 10] This case
arose not from any abstract disagreement between the parties over
the constitutionality of Art. 2404, but from appellant's attempt to
foreclose on the mortgage he held on the Feenstra home. Appellant
brought this declaratory judgment action to further that end, and
the counterclaim asserted by Mrs. Feenstra specifically sought as
relief
"a declaratory judgment that the mortgage executed on [her] home
by her husband . . . is void as having been executed and recorded
without her consent pursuant to an unconstitutional state
statute."
Thus, the dispute between the parties at its core involves the
validity of a single
Page 450 U. S. 463
mortgage, and, in passing on the constitutionality of Art. 2404,
the Court of Appeals clearly intended to resolve that controversy
adversely to appellant.
Accordingly, the judgment of the Court of Appeals is
affirmed.
So ordered.
[
Footnote 1]
Article 2404, in effect at the time Mr. Feenstra executed the
mortgage in favor of appellant, provided in pertinent part:
"The husband is the head and master of the partnership or
community of gains; he administers its effects, disposes of the
revenues which they produce, and may alienate them by an onerous
title, without the consent and permission of his wife."
This provision has been repealed.
See infra at
3 and S. 458|>458, and nn.
3 and |
3 and S. 455fn4|>4.
[
Footnote 2]
After the District Court granted summary judgment against
appellee Feenstra on her constitutional challenge to the head and
master statute, she and appellant Kirchberg agreed to the dismissal
with prejudice of their Truth in Lending Act claims.
[
Footnote 3]
Article 2346 provides that "[e]ach spouse acting alone may
manage, control, or dispose of community property unless otherwise
provided by law."
[
Footnote 4]
However, either spouse may renounce his or her right to concur
in the disposition of community immovables. La.Civ.Code Ann., Art.
2348 (West Supp. 1981).
[
Footnote 5]
This assertion was made in the State's brief before the Court of
Appeals. 609 F.2d 727, 735 (1979).
[
Footnote 6]
The State and the Governor, as appellees, subsequently filed a
motion to dismiss Kirchberg's appeal on the ground that extensive
revisions in the State's community property law,
see supra
at
450 U. S. 458,
and nn. 3 and 4, had rendered moot the controversy over the
constitutionality of Art. 2404. However, because these legislative
changes were effective only as of January 1, 1980, they do not
govern the mortgage executed by Mr. Feenstra in 1974. The
suggestion of mootness was therefore rejected. 449 U.S. 916
(1980).
[
Footnote 7]
Nor will this Court speculate about the existence of such a
justification. "The burden . . . is on those defending the
discrimination to make out the claimed justification. . . ."
Wengler v. Druggist Mutual Ins. Co., 446 U.
S. 142,
446 U. S. 151
(1980). We note, however, that the failure of the State to appeal
from the decision of the Court of Appeals and the decision of the
Louisiana Legislature to replace Art. 2404 with a gender-neutral
statute, suggest that appellant would be hard-pressed to show that
the challenged provision substantially furthered an important
governmental interest.
[
Footnote 8]
Article 2334, as it existed in 1974, provided:
"Where the title to immovable property stands in the names of
both the husband and the wife, it may not be leased, mortgaged or
sold by the husband without the wife's consent where she has made a
declaration by authentic act that her authority and consent are
required for such lease, sale or mortgage and has filed such a
declaration in the mortgage and conveyance records of the parish in
which the property is situated."
This Article has been replaced with a new code provision
prohibiting either spouse from alienating or encumbering community
immovables without the consent of the other spouse.
See
n 3,
supra.
[
Footnote 9]
In so ruling, we also reject appellant's secondary argument that
the constitutional challenge to Art 2404 should be rejected because
the provision was an integral part of the State's community
property law, and its invalidation would call into question the
constitutionality of related provisions of the Louisiana Civil
Code. The issue before us is not whether the State's community
property law, as it existed in 1974, could have functioned without
Art. 2404, but rather whether that provision unconstitutionally
discriminated on the basis of sex.
[
Footnote 10]
Indeed, appellant's view that some ambiguity exists concerning
the applicability of the Fifth Circuit's decision to the mortgage
he held on the Feenstra home appears to be of recent vintage.
Appellant Kirchberg never sought clarification from the Court of
Appeals on the scope of its decision, and apparently regarded the
court's judgment to be sufficiently adverse and binding on him to
warrant seeking review on the merits before this Court.
JUSTICE STEWART, with whom JUSTICE REHNQUIST joins concurring in
the result.
Since men and women were similarly situated for all relevant
purposes with respect to the management and disposition of
community property, I agree that Art. 2404 of the Louisiana Civil
Code Ann. (West 1971), which allowed husbands, but not wives, to
execute mortgages on jointly owned real estate without spousal
consent, violated the Equal Protection Clause of the Fourteenth
Amendment.
See Michael M. v. Sonoma County Superior Court,
post at
450 U. S.
477-479 (STEWART, J., concurring).
While it is clear that the Court is correct in holding that the
judgment of the Court of Appeals applied to the particular mortgage
executed by Mr. Feenstra, it is equally clear that that court's
explicit announcement that its holding was to apply only
prospectively means that no other mortgage executed before the date
of the decision of the Court of Appeals is invalid by reason of its
decision.