The gender-based distinction mandated by the provisions of the
Social Security Act, 42 U.S.C. § 402(g), that grant survivors'
benefits based on the earnings of a deceased husband and father
covered by the Act both to his widow and to the couple's minor
children in her care, but that grant benefits based on the earnings
of a covered deceased wife and mother only to the minor children
and not to the widower, violates the right to equal protection
secured by the Due Process Clause of the Fifth Amendment, since it
unjustifiably discriminates against female wage earners required to
pay social security taxes by affording them less protection for
their survivors than is provided for male wage earners. Pp.
420 U. S.
642-653.
(a) The distinction is based on an "archaic and overbroad"
generalization not tolerated under the Constitution, namely, that
male workers' earnings are vital to their families' support, while
female workers' earnings do not significantly contribute to
families' support.
Frontiero v. Richardson, 411 U.
S. 677. Pp.
420 U. S.
642-643.
(b) That social security benefits are "noncontractual," and do
not compensate for work performed or necessarily correlate with
contributions to the program, cannot sanction the solely
gender-based differential protection for covered employees. Since
the benefits depend significantly upon a covered employee's
participation in the workforce, and since only covered employees
and not others are required to pay taxes toward the system,
benefits must be distributed according to classifications that do
not differentiate among covered employees solely on the basis of
sex. Pp.
420 U. S.
646-647.
(c) Since, as is apparent from the statutory scheme itself and
from § 402(g)'s legislative history, § 402(g)'s purpose in
providing benefits to young widows with children was not, as the
Government contends, to provide an income to women who, because of
economic discrimination, were unable to provide for themselves, but
to permit women to elect not to work and to devote themselves to
care of children (and thus was not premised upon
Page 420 U. S. 637
any special disadvantage of women), it cannot serve to justify a
gender-based distinction diminishing the protection afforded women
who do work. Pp. 648-652.
367 F.
Supp. 981, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL,
JJ., joined. POWELL, J., filed a concurring opinion in which
BURGER, C.J., joined,
post, p.
420 U. S. 654.
REHNQUIST, J., filed an opinion concurring in the result,
post, p.
420 U. S. 655.
DOUGLAS, J., took no part in the consideration or decision of the
case.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Social Security Act benefits based on the earnings of a deceased
husband and father covered by the Act are payable, with some
limitations, both to the widow and to the couple's minor children
in her care. § 202(g) of the Social Security Act, as amended, 42
U.S.C. § 402(g), [
Footnote 1]
Such benefits are payable on the basis of the
Page 420 U. S. 638
earnings of a deceased wife and mother covered by the Act,
however, only to the minor children, and not to the widower. The
question in this case is whether this gender-based distinction
violates the Due Process Clause of the Fifth Amendment. [
Footnote 2]
A three-judge District Court for the District of New Jersey held
that the different treatment of men and women mandated by § 402(g)
unjustifiably discriminated against female wage earners by
affording them less protection for their survivors than is provided
to male employees.
Page 420 U. S. 639
367 F.
Supp. 981, 991 (1973). We noted probable jurisdiction, 419 U.S.
822 (1974). We affirm.
I
Appellee Stephen C. Wiesenfeld and Paula Polatschek were married
on November 16, 1970. Paula, who worked as a teacher for five years
before her marriage, continued teaching after her marriage. Each
year she worked, maximum social security contributions were
deducted from her salary. [
Footnote
3] Paula's earnings were the couple's principal source of
support during the marriage, being substantially larger than those
of appellee. [
Footnote 4]
On June 5, 1972, Paula died in childbirth. Appellee was left
with the sole responsibility for the care of their infant son,
Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld
applied at the Social Security office in New Brunswick, N.J., for
social security survivors' benefits for himself and his son. He did
obtain benefits for his son under 42 U.S.C. § 402(d) (1970 ed. and
Supp. III), [
Footnote 5] and
received for Jason $206.90 per month
Page 420 U. S. 640
until September 1972, and $248.30 per month thereafter. However,
appellee was told that he was not eligible for benefits for
himself, because § 402(g) benefits were available only to women.
[
Footnote 6] If he had been a
woman, he would
Page 420 U. S. 641
have received the same amount as his son as long as he was not
working,
see 42 U.S.C. §§ 402(d)(2) and (g)(2), and, if
working, that amount reduced by $1 for every $2 earned annually
above $2,400. 42 U.S.C. §§ 403(b) and (f). [
Footnote 7]
Appellee filed this suit in February, 1973, [
Footnote 8] claiming jurisdiction under 28 U.S.C.
§ 1331, on behalf of himself and of all widowers similarly
situated. [
Footnote 9] He
sought a declaration that § 402(g) is unconstitutional to the
extent that men and women are treated differently, an
injunction
Page 420 U. S. 642
restraining appellant from denying benefits under § 402(g)
solely on the basis of sex, and payment of past benefits commencing
with June, 1972, the month of the original application.
Cross-motions for summary judgment were filed. After the
three-judge court determined that it had jurisdiction, [
Footnote 10] it granted summary
judgment in favor of appellee, and issued an order giving appellee
the relief he sought.
II
The gender-baed distinction made by § 402(g) is
indistinguishable from that invalidated in
Frontiero
v.
Page 420 U. S. 643
Richardson, 411 U. S. 677
(1973).
Frontiero involved statutes which provided the
wife of a male serviceman with dependents' benefits but not the
husband of a servicewoman unless she proved that she supplied more
than one-half of her husband's support. The Court held that the
statutory scheme violated the right to equal protection secured by
the Fifth Amendment.
Schlesinger v. Ballard, 419 U.
S. 498 (1975), explained:
"In . . .
Frontiero, the challenged [classification]
based on sex [was] premised on overbroad generalizations that could
not be tolerated under the Constitution. . . . [T]he assumption . .
. was that female spouses of servicemen would normally be dependent
upon their husbands, while male spouses of servicewomen would
not."
Id. at
419 U. S. 507. A
virtually identical "archaic and overbroad" generalization,
id. at
419 U. S. 508,
"not . . . tolerated under the Constitution" underlies the
distinction drawn by § 402(g), namely, that male workers' earnings
are vital to the support of their families, while the earnings of
female wage earners do not significantly contribute to their
families' support. [
Footnote
11]
Section 402(g) was added to the Social Security Act in 1939 as
one of a large number of amendments designed to "afford more
adequate protection to the family as a unit." H.R.Rep. No. 728,
76th Cong., 1st Sess., 7 (1939). Monthly benefits were provided to
wives, children, widows, orphans, and surviving dependent parents
of covered workers.
Ibid. However, children of covered
female workers were eligible for survivors' benefits only in
limited circumstances,
see n 5,
supra, and no benefits
Page 420 U. S. 644
whatever were made available to husbands or widowers on the
basis of their wives' covered employment. [
Footnote 12]
Underlying the 1939 scheme was the principle that,
"[u]nder a social insurance plan, the primary purpose is to pay
benefits in accordance with the
probable needs of the
beneficiaries, rather than to make payments to the estate of a
deceased person regardless of whether or not he leaves
dependents."
H.R.Rep. No. 728,
supra, at 7. (Emphasis supplied.) It
was felt that
"[t]he payment of these survivorship benefits and supplements
for the wife of an annuitant are . . . in keeping with the
principle of social insurance. . . ."
Ibid. Thus, the framers of the Act legislated on the
"then generally accepted presumption that a man is responsible for
the support of his wife and children." D. Hoskins & L. Bixby,
Women and Social Security: Law and Policy in Five Countries, Social
Security Administration Research Report No. 42, p. 77 (1973).
[
Footnote 13]
Page 420 U. S. 645
Obviously, the notion that men are more likely than women to be
the primary supporters of their spouses and children is not
entirely without empirical support.
See Kahn v. Shevin,
416 U. S. 351,
416 U. S. 354
n. 7 (1974). But such a gender-based generalization 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. First, it was open to the servicewoman under the
statutes invalidated in
Frontiero to prove that her
husband was, in fact, dependent upon her. Here, Stephen Wiesenfeld
was not given the opportunity to show, as may well have been the
case, that he was dependent upon his wife for his support, or that,
had his wife lived, she would have remained at work while he took
over care of the child. Second, in 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. Since the Constitution forbids the
gender-based differentiation premised upon assumptions as to
dependency made in the statutes before us in
Frontiero,
the Constitution also forbids the gender-based differentiation that
results in the efforts of female workers required to pay social
security taxes producing less protection for their families than is
produced by the efforts of men.
Page 420 U. S. 646
Appellant seeks to avoid this conclusion with two related
arguments. First, he claims that, because social security benefits
are not compensation for work done, Congress is not obliged to
provide a covered female employee with the same benefits as it
provides to a male. Second, he contends that § 402(g) was
"reasonably designed to offset the adverse economic situation of
women by providing a widow with financial assistance to supplement
or substitute for her own efforts in the marketplace,"
Brief for Appellant 14, and therefore does not contravene the
equal protection guarantee.
A
Appellant relies for the first proposition primarily on
Flemming v. Nestor, 363 U. S. 603
(1960). We held in
Flemming that the interest of a covered
employee in future social security benefits is "noncontractual,"
because
"each worker's benefits, though flowing from the contributions
he made to the national economy while actively employed, are not
dependent on the degree to which he was called upon to support the
system by taxation."
Id. at
363 U. S.
609-610. Appellant apparently contends that, since
benefits derived from the social security program do not correlate
necessarily with contributions made to the program, a covered
employee has no right whatever to be treated equally with other
employees as regards the benefits which flow from his or her
employment.
We do not see how the fact that social security benefits are
"noncontractual" can sanction differential protection for covered
employees which is solely gender based. From the outset, social
security old age, survivors' and disability (OASDI) benefits have
been "afforded as a matter of right, related to past participation
in the productive
Page 420 U. S. 647
processes of the country." Final Report of the Advisory Council
on Social Security 17 (1938). It is true that social security
benefits are not necessarily related directly to tax contributions,
since the OASDI system is structured to provide benefits in part
according to presumed need. [
Footnote 14] For this reason,
Flemming held that
the position of a covered employee "cannot be soundly analogized to
that of the holder of an annuity, whose right to benefits is
bottomed on his contractual premium payments." 363 U.S. at
363 U. S. 610.
But the fact remains that the statutory right to benefits is
directly related to years worked and amount earned by a covered
employee, [
Footnote 15] and
not to the need of the beneficiaries directly. Since OASDI benefits
do depend significantly upon the participation in the workforce of
a covered employee, and since only covered employees and not others
are required to pay taxes toward the system, benefits must be
distributed according to classifications which do not without
sufficient justification differentiate among covered employees
solely on the basis of sex.
Page 420 U. S. 648
B
Appellant seeks to characterize the classification here as one
reasonably designed to compensate women beneficiaries as a group
for the economic difficulties which still confront women who seek
to support themselves and their families. The Court held in
Kahn v. Shevin, 416 U.S. at
416 U. S. 355,
that a statute
"reasonably designed to further the state policy of cushioning
the financial impact of spousal loss upon the sex for which that
loss imposes a disproportionately heavy burden"
can survive an equal protection attack.
See also Schlesinger
v. Ballard, 419 U. S. 498
(1975). 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. [
Footnote 16] Here, it is apparent both from
the statutory scheme itself and from the legislative history of §
402(g) that Congress' purpose in providing benefits to young widows
with children was not to provide an income to women who were,
because of economic discrimination, unable to provide for
themselves. Rather, § 402(g), linked as it is directly to
responsibility for minor children, was intended to permit women to
elect not to work and to devote themselves to the care of children.
Since this purpose in no way is premised upon any special
disadvantages of women, it cannot serve to justify a gender-based
distinction which diminishes the protection afforded to women who
do work.
That the purpose behind § 402(g) is to provide children
Page 420 U. S. 649
deprived of one parent with the opportunity for the personal
attention of the other could not be more clear in the legislative
history. The Advisory Council on Social Security, which developed
the 1939 amendments, said explicitly that
"[s]uch payments [under § 402(g)] are intended as supplements to
the orphans' benefits
with the purpose of enabling the widow to
remain at home and care for the children."
Final Report of the Advisory Council on Social Security 31
(1938). (Emphasis supplied.) In 1971, a new Advisory Council,
considering amendments to eliminate the various gender-based
distinctions in the OASDI structure, reiterated this
understanding:
"Present law provides benefits for the mother of young . . .
children . . . if she chooses to stay home and care for the
children instead of working. In the Council's judgment, it is
desirable to allow a woman who is left with the care of the
children the
choice of whether to stay at home to care for
the children or to work."
1971 Advisory Council on Social Security, Reports on the Old
Age, Survivors, and Disability Insurance and Medicare Programs 30
(hereinafter 1971 Reports). (Emphasis supplied.)
Indeed, consideration was given in 1939 to extending benefits to
all widows, regardless of whether or not there were minor children.
The proposal was rejected, apparently because it was felt that
young widows without children can be expected to work, while
middle-aged widows "are likely to have more savings than younger
widows, and many of them have children who are grown and able to
help them." Report of the Social Security Board, H.R.Doc. No. 110,
76th Cong., 1st Sess., 7-8 (1939).
See also Final Report
of the Advisory Council on Social Security 31 (1938); Hearings on
the Social Security Act Amendments of 1939 before the House
Committee on Ways and Means, 76th Cong., 1st Sess., 61, 1217,
2169-2170; H.R.Rep. No. 728, 76th Cong., 1st Sess., 36-37
Page 420 U. S. 650
(1939). Thus, Congress decided not to provide benefits to all
widows, even though it was recognized that some of them would have
serious problems in the job market. Instead, it provided benefits
only to those women who had responsibility for minor children,
because it believed that they should not be required to work.
The whole structure of survivors' benefits conforms to this
articulated purpose. Widows without minor children obtain no
benefits on the basis of their husband's earnings until they reach
age 60 or, in certain instances of disability, age 50. 42 U.S.C. §§
402(e)(1) and (5). Further, benefits under § 402(g) cease when all
children of a beneficiary are no longer eligible for children's
benefits. [
Footnote 17] If
Congress were concerned with providing women with benefits because
of economic discrimination, it would be entirely irrational to
except those women who had spent many years at home rearing
children, since those women are most likely to be without the
skills required to succeed in the job market.
See Walker,
Sex Discrimination in Government Benefit Programs, 23 Hastings L.J.
277, 27279 (1971); Hearings,
supra, at 61 (remarks of Dr.
Altemeyer, Chairman, Social Security Board); Report of the
Committee on Social Insurance and Taxes, The President's Commission
on the Status of Women 31-32 (1963). Similarly, the Act now
provides benefits to a surviving
Page 420 U. S. 651
divorced wife who is the parent of a covered employee's child,
regardless of how long she was married to the deceased or of
whether she or the child was dependent upon the employee for
support. §§ 402(g), 416(d)(3). Yet a divorced wife who is not the
mother of a child entitled to children's benefits is eligible for
benefits only if she meets other eligibility requirements and was
married to the covered employee for 20 years. §§ 402(b) and (e),
416(d). [
Footnote 18] Once
again, this distinction among women is explicable only because
Congress was not concerned in § 402(g) with the employment problems
of women generally but with the principle that children of covered
employees are entitled to the personal attention of the surviving
parent if that parent chooses not to work.
Given the purpose of enabling the surviving parent to remain at
home to care for a child, the gender-based distinction of § 402(g)
is entirely irrational. The classification discriminates among
surviving children solely on the basis of the sex of the surviving
parent. Even in the typical family hypothesized by the Act, in
which the husband is supporting the family and the mother is caring
for the children, this result makes no sense. The fact
Page 420 U. S. 652
that a man is working while there is a wife at home does not
mean that he would, or should be required to, continue to work if
his wife dies. It is no less important for a child to be cared for
by its sole surviving parent when that parent is male, rather than
female. And a father, no less than a mother, has a constitutionally
protected right to the "companionship, care, custody, and
management" of "the children he has sired and raised, [which]
undeniably warrants deference and, absent a powerful countervailing
interest, protection."
Stanley v. Illinois, 405 U.
S. 645,
405 U. S. 651
(1972). Further, to the extent that women who work when they have
sole responsibility for children encounter special problems, it
would seem that men with sole responsibility for children will
encounter the same child care related problems. [
Footnote 19] Stephen Wiesenfeld, for
example, found that providing adequate care for his infant son
impeded his ability to work,
see n 7,
supra.
Finally, to the extent that Congress legislated on the
presumption that women as a group would choose to forgo work to
care for children while men would not, [
Footnote 20]
Page 420 U. S. 653
the statutory structure, independent of the gender-based
classification, would deny or reduce benefits to those men who
conform to the presumed norm and are not hampered by their child
care responsibilities. Benefits under § 402(g) decrease with
increased earnings,
see supra at
420 U. S. 641.
According to appellant, "the bulk of male workers would receive no
benefits in any event," Brief for Appellant 17 n. 11, because they
earn too much. 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.
Since the gender-based classification of § 402(g) cannot be
explained as an attempt to provide for the special problems of
women, it is indistinguishable from the classification held invalid
in
Frontiero. Like the statutes there, "[b]y providing
dissimilar treatment for men and women who are . . . similarly
situated, the challenged section violates the [Due Process]
Clause."
Reed v. Reed, 404 U. S. 71,
404 U. S. 77
(1971).
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
Page 420 U. S. 654
[
Footnote 1]
Section 402(g) is headed "Mother's insurance benefits." It
provides in pertinent part:
"(1) The widow and every surviving divorced mother (as defined
in section 416(d) of this title) of an individual who died a fully
or currently insured individual, if such widow or surviving
divorced mother -- "
"(A) is not married,"
"(B) is not entitled to a widow's insurance benefit,"
"(C) is not entitled to old-age insurance benefits, or is
entitled to old-age insurance benefits each of which is less than
three-fourths of the primary insurance amount of such
individual,"
"(D) has filed application for mother's insurance benefits, or
was entitled to wife's insurance benefits on the basis of the wages
and self employment income of such individual for the month
preceding the month in which he died,"
"(E) at the time of filing such application has in her care a
child of such individual entitled to a child's insurance benefit .
. ."
"
* * * *"
"shall . . . be entitled to a mother's insurance benefit for
each month, beginning with the first month after August 1950 in
which she becomes so entitled to such insurance benefits and ending
with the month preceding the first month in which any of the
following occurs: no child of such deceased individual is entitled
to a child's insurance benefit, such widow or surviving divorced
mother becomes entitled to an old-age insurance benefit equal to or
exceeding three-fourths of the primary insurance amount of such
deceased individual, she becomes entitled to a widow's insurance
benefit, she remarries, or she dies. . . ."
The terms "fully" and "currently" insured are defined in 42
U.S.C. § 414.
See n 3,
infra.
[
Footnote 2]
"[W]hile the Fifth Amendment contains no equal protection
clause, it does forbid discrimination that is 'so unjustifiable as
to be violative of due process.'"
Schneider v. Rusk, 377 U. S. 163,
377 U. S. 168
(1964);
see also Bolling v. Sharpe, 347 U.
S. 497,
347 U. S. 499
(1954). This Court's approach to Fifth Amendment equal protection
claims has always been precisely the same as to equal protection
claims under the Fourteenth Amendment.
See, e.g., Schlesinger
v. Ballard, 419 U. S. 498
(1975);
Jimenez v. Weinberger, 417 U.
S. 628,
417 U. S. 637
(1974);
Frontiero v. Richardson, 411 U.
S. 677 (1973).
[
Footnote 3]
Thus, Paula Wiesenfeld was "currently insured" when she died,
see n 1,
supra, because she had "not less than six quarters of
coverage during the thirteen-quarter period ending with (1) the
quarter in which [she] died." 42 U.S.C. § 414(b).
[
Footnote 4]
In 1970, Paula earned $9,808, and Stephen earned $3,100 as a
self-employed consultant; in 1971, Paula earned $10,686 and Stephen
$2,188; in 1972, Paula earned $6,836.35 before she died, and
Stephen $2,475 for the entire year. Stephen completed his education
before the marriage.
[
Footnote 5]
Section 402(d) is headed "Child's insurance benefits," and
provides in pertinent part as follows:
"Every child . . . of an individual who dies a fully or
currently insured individual, if such child --"
"(A) has filed application for child's insurance benefits,"
"(B) at the time such application was filed was unmarried and
(i) either had not attained the age of 18 or was a full-time
student and had not attained the age of 22, or (ii) is under a
disability (as defined in section 423(d) of this title) which began
before he attained the age of 22, and"
"(C) was dependent upon such individual --"
"
* * * *"
"(ii) if such individual has died, at the time of such death . .
."
"
* * * *"
"shall be entitled to a child's insurance benefit for each
month, beginning with the first month after August 1950 in which
such child becomes so entitled to such insurance benefits and
ending with the month preceding whichever of the following first
occurs --"
"(D) the month in which such child dies or marries,"
"(E) the month in which such child attains the age of 18, but
only if he (i) is not under a disability (as so defined) at the
time he attains such age, and (ii) is not a full-time student
during any part of such month."
Thus, child's insurance benefits are now available without
regard to whether the worker upon whose earnings benefits are based
is the mother or father. This was not always the case. Originally,
a child could receive benefits based on his mother's earnings only
if he had not been living with his father and was being supported
solely by his mother. Social Security Amendments of Aug. 10, 1939,
§ 202(c), 53 Stat. 1364. This provision was amended in 1950 to
provide automatic entitlement to otherwise eligible children of
women workers who were currently insured,
see nn.
1 and |
1 and S. 636fn3|>3,
supra, when they died, but
retaining dependency qualifications if the mother's covered
employment was not recent. Social Security Amendments of Aug. 28,
1950, § 101(a), amending § 202(d), 64 Stat. 483. In 1967, children
of women workers were made eligible for children's benefits on
exactly the same criteria applied to children of male workers.
Social Security Amendments of 1967, Pub.L. 90-248, § 151, 81 Stat.
860.
[
Footnote 6]
Appellee said in an affidavit that he was told orally at the
Social Security office that he could not file an application for
benefits on his own behalf. The appellant Secretary does not
dispute that the request for benefits was orally made and orally
denied. Tr. of Oral Arg. before District Court, June 20, 1973, p.
45;
367 F.
Supp. 981, 985 n. 5.
[
Footnote 7]
Stephen Wiesenfeld was employed until October, 1972. However,
since he earned $2,475 for the entire year 1972, n. 4,
supra, he apparently would have been eligible for
benefits, were he a woman, from June, 1972, until he obtained
employment again on February 5, 1973, at a salary of $1,500 per
month. This lawsuit was filed on February 24, 1973. On September
14, 1973, appellee was dismissed from his position, so that he was
unemployed and again eligible for benefits, but for the
gender-based distinction, when the lower court opinion issued on
December 11, 1973. Appellee, in an affidavit filed in September,
1973, ascribed his employment difficulties in large part to the
difficulties of child care. In particular, he noted that he had
"encountered severe difficulty in obtaining the services of a
suitable housekeeper, to whom I could conscientiously entrust
Jason's care. I have employed four housekeepers in the past year. .
. ."
[
Footnote 8]
Appellee did not seek administrative review of the denial under
42 U.S.C. § 405(b). However, appellant stipulated that any
administrative appeal would have been futile, since § 402(g), on
its face, precludes granting benefits to men. Tr of Oral Arg.
before District Court, June 20, 1973, pp. 16-17. Nor does appellant
now claim that § 405(h), which provides that "[n]o findings of fact
or decision of the Secretary shall be reviewed . . . except as
herein provided" (
see § 405(g)), is a bar to this action.
See Public Utilities Comm'n of California v. United
States, 355 U. S. 534,
355 U. S.
539-540 (1958);
Richardson v. Morris,
409 U. S. 464
(1973) (per curiam);
Griffin v. Richardson, 345 F. Supp.
1226 (Md.),
aff'd, 409 U.S. 1069 (1972).
[
Footnote 9]
The three-judge court declined to permit the action to proceed
as a class action. 367 F. Supp. at 986-987. No appeal has been
taken from this ruling.
[
Footnote 10]
The court recognized that the jurisdictional amount of $10,000
under 28 U.S.C. § 1331 is established as long as it does not
"appear to a legal certainty" that the matter in controversy does
not total $10,000,
St. Paul Mercury Idemnity Co. v. Red Cab
Co., 303 U. S. 283,
303 U. S. 289
(1938), and therefore that, where an injunction commanding future
payments is sought, there is no need to await accrual of $10,000 in
back benefits to bring suit. However, it was troubled by the fact
that appellee was employed on the day suit was filed,
see
n 7,
supra, and thus
would not have been entitled to benefits on that day. It held that
there was nonetheless jurisdiction because of the futility of
dismissing the suit when the plaintiff could refile immediately and
establish jurisdiction, since he was unemployed by the time of
decision. We believe that there was jurisdiction, in any event, on
the day the suit was filed. Benefits under § 402(g) could be
available to appellee, if he prevailed, until his infant child
became 18,
see §§ 402(d), (g), and (s)(1). At the
then-prevailing benefit rates, appellee would reach $10,000 in
benefits if he collected full benefits for a little more than three
years,
see supra at
420 U. S.
640-641. Social security benefits are to some degree in
the nature of insurance, providing present security and peace of
mind from fear of future lack of earnings. Also, unlike disability
benefits,
see 42 U.S.C. § 423, these survivors' benefits
do not depend upon ability to earn, but only upon actual earnings.
Thus, they give a potential recipient a choice between staying home
to care for the child and working. This opportunity for choice, and
the potential right to as much as $53,640 worth of benefits ($2,980
per year times 18 years), certainly has a present value of $10,000,
whether or not the claimant was eligible for benefits on the day he
filed suit.
[
Footnote 11]
See the observations in
Frontiero, 411 U.S. at
411 U. S. 689
n. 23, that, in view of the large percentage of married women
working (41.5% in 1971), the presumption of complete dependency of
wives upon husbands has little relationship to present reality. In
the same vein,
Taylor v. Louisiana, 419 U.
S. 522 (1975), observed that current statistics belie
"the presumed role in the home" of contemporary women.
Id.
at
419 U. S. 535
n. 17.
[
Footnote 12]
Changes have been made in these provisions. For example,
benefits are now available to husbands and aged widowers of covered
workers if they can show that more than one-half of their support
has been provided by their wives. 42 U.S.C. §§ 402(c), (f).
See
also n 5,
supra.
See generally Note, Sex Classifications in the Social
Security Benefit Structure, 49 Ind.L.J. 181 (1973).
[
Footnote 13]
See, e.g., H.R.Rep. No. 728, 76th Cong., 1st Sess., 36
(1939): "[A] child is not usually financially dependent upon his
mother"; 84 Cong.Rec. 6896 (1939) (remarks of Rep. Cooper):
"[W]e now have under the provisions of this bill a program on a
family basis, and we will take care of these people who will need
this assistance because of the loss of the
father or the
husband and the loss of the pay and wages that
he
has been bringing into the family."
(Emphasis supplied.)
See also Report of the Committee
on Social Insurance and Taxes, The President's Commission on the
Status of Women 29 (1963):
"It was decided at that time that, if the determination of
dependency were based on generally valid presumptions, there would
be no need in most situations for detailed investigations of family
financial relationships. Since the husband traditionally was the
wage earner in the family and the wife was the homemaker, benefits
were provided for wives, widows, and children on the basis of
presumed dependency on the husband. . . ."
[
Footnote 14]
See supra at
420 U. S. 644.
There has been a continuing tension in the OASDI system between two
goals: individual equity, which accords benefits commensurate with
the contributions made to the system, and social adequacy, which
assures to all contributors and their families a tolerable standard
of living.
See J. Pechman, H. Aaron M. Taussig, Social
Security: Perspectives for Reform 33-34 (1968); Report of the
Social Security Board, H.R.Doc. No. 110, 76th Cong., 1st Sess., 5
(1939). Rather than abandoning either goal, Congress has tried to
meet both, by assuring that the protection afforded each
contributor is at least that which his contributions could purchase
on the private market.
See H.R.Rep. No. 728, 76th Cong.,
1st Sess., 13-14 (1939); H.R.Rep. No 1300, 81st Cong., 1st Sess., 2
(1949).
[
Footnote 15]
See 42 U.S.C. §§ 414, 415 for the correlation between
years worked, amount earned, and the "primary insurance amount,"
which is the amount received by fully insured employees upon
reaching retirement age. Benefits under § 402(g) are 75% of the
primary insurance amount of the covered employee.
[
Footnote 16]
This Court need not in equal protection cases accept at face
value assertions of legislative purposes, when an examination of
the legislative scheme and its history demonstrates that the
asserted purpose could not have been a goal of the legislation.
See Eisenstadt v. Baird, 405 U. S. 438
(1972);
Jimenez v. Weinberger, 417 U.S. at
417 U. S. 634;
U.S. Dept. of Agriculture v.
Moreno, 413 U. S. 528,
413 U. S.
536-537 (1973).
[
Footnote 17]
In certain cases, mother's benefits under § 402(g) cease
although some children are still eligible for children's benefits
under § 402(d). In particular, children continue to be eligible for
benefits while full-time students until age 22 and, in some
instances, for a few months thereafter. §§ 402(d)(1)(F) and (d)(7).
Yet, benefits to the mother under § 402(g) cease if all children
have reached 18 and are not disabled. § 402 (s)(1). This
distinction also sustains our conclusion that § 402(g) was intended
only to provide an opportunity for children to receive the personal
attention of one parent, since mother's benefits are linked to
children's benefits only so long as it is realistic to think that
the children might need their parent at home.
[
Footnote 18]
Originally, no divorced wives were entitled to benefits on the
basis of their former husbands' earnings. The provision for
surviving divorced wives who are the mothers of children entitled
to survivors' benefits was added in 1950. Social Security
Amendments of 1950, § 101(a), 64 Stat. 483. It was not until 1965
that benefits were provided for aged divorced wives and widows,
premised upon a 20-year marriage. Social Security Amendments of
1965, Pub.L. 89-97, § 308, 79 Stat. 375. Both these groups of women
were required to prove dependency upon the former husband. The
proof-of-dependency requirements were eliminated in 1972. Social
Security Amendments of 1972, Pub.L. 92-603, § 114, 86 Stat. 1348.
This separate development of benefits for divorced women with
children and those without reinforces the conclusion that the
presence of children is the
raison d'etre of § 402(g).
[
Footnote 19]
The Commission on Railroad Retirement, commenting upon a similar
provision of the railroad retirement system, significantly
stated:
"Statistically speaking, there are, of course, significant
differences by sex in the roles played in our society. For example,
far more women than men are primarily involved in raising minor
children. But if the society's aim is to further a socially
desirable purpose,
e.g., better care for growing children,
it should tailor any subsidy directly to the end desired, not
indirectly and unequally by helping widows with dependent children
and ignoring widowers in the same plight. In this example, it is
the economic and
functional capability of the surviving
breadwinner to care for children which counts; the sex of the
surviving parent is incidental."
Report of the Commission on Railroad Retirement, Railroad
Retirement System -- Its Coming Crisis, H.R.Doc. No. 92-350, p. 378
(1972). (Emphasis supplied.)
[
Footnote 20]
Precisely this view was expressed by the 1971 Advisory Council
on Social Security, whose recommendations upon which gender-based
distinctions in the OASDI system to retain and which to discard
were followed in the 1972 Social Security Amendments:
"The Council believes that it is unnecessary to offer the same
choice whether to work or care for surviving [children] to a man.
Even though many more married women work today than in the past, so
that they are both workers and homemakers, very few men adopt such
a dual role; the customary and predominant role of the father is
not that of a homemaker, but rather that of the family breadwinner.
A man generally continues to work to support himself and his
children after the death or disability of his wife. The Council
therefore does not recommend that benefits be provided for a young
father who has children in his care."
1971 Reports 30.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins,
concurring.
I concur in the judgment and generally in the opinion of the
Court. But I would identify the impermissible discrimination
effected by § 402(g) somewhat more narrowly than the Court does.
Social Security is designed, certainly in this context, for the
protection of the family. Although it lacks the contractual
attributes of insurance or an annuity,
Flemming v. Nestor,
363 U. S. 603
(1960), it is a contributory system and millions of wage earners
depend on it to provide basic protection for their families in the
event of death or disability.
Many women are the principal wage earners for their families,
and they participate in the Social Security system on exactly the
same basis as men. When the mother is a principal wage earner, the
family may suffer as great an economic deprivation upon her death
as would occur upon the death of a father wage earner. It is
immaterial whether the surviving parent elects to assume primary
child care responsibility, rather than work, or whether other
arrangements are made for child care. The statutory scheme provides
benefits both to a surviving mother who remains at home and to one
who works at low wages. A surviving father may have the same need
for benefits as a surviving mother.
*
The statutory scheme therefore impermissibly discriminates against
a female wage earner because it provides her family less protection
than it
Page 420 U. S. 655
provides that of a male wage earner, even though the family
needs may be identical. I find no legitimate governmental interest
that supports this gender classification.
* I attach less significance to the view emphasized by the Court
that a purpose of the statute is to enable the surviving parent to
remain at home to care for a child. In light of the long experience
to the contrary, one may doubt that fathers generally will forgo
work and remain at home to care for children to the same extent
that mothers may make this choice. Under the current statutory
program, however, the payment of benefits is not conditioned on the
surviving parent's decision to remain at home.
MR. JUSTICE REHNQUIST, concurring in the result.
Part
420 U. S. I
believe the Court's examination convincingly demonstrates that the
only purpose of § 402(g) is to make it possible for children of
deceased contributing workers to have the personal care and
attention of a surviving parent, should that parent desire to
remain in the home with the child. Moreover, the Court's opinion
establishes that the Government's proffered legislative purpose is
so totally at odds with the context and history of § 402(g) that it
cannot serve as a basis for judging whether the statutory
distinction between men and women rationally serves a valid
legislative objective.
This being the case, I see no necessity for reaching the issue
of whether the statute's purported discrimination against female
workers violates the Fifth Amendment as applied in
Frontiero v.
Richardson, 411 U. S. 677
(1973). I would simply conclude, as does the Court in Part III-B of
its opinion, that the restriction of § 402(g) benefits to surviving
mothers does not rationally serve any valid legislative purpose,
including that for which § 402(g) was obviously designed. This is
so because it is irrational to distinguish between mothers and
fathers when the sole question is whether a child of a deceased
contributing worker should have the opportunity to receive the
full-time attention of the only parent remaining to it. To my mind,
that should be the end of the matter. I therefore concur in the
result.