are conclusively barred from benefits and have no chance to address the dependency question directly.
Before Jimenez can be relied upon as decisive precedent, however, the Supreme Court's opinion in Mathews v. Lucas, supra, must be considered. Lucas upheld the constitutionality of a Social Security Act provision related to the one struck down in Jimenez.
The program dealt with in Lucas dispenses benefits to survivors of deceased workers rather than to offspring of living but disabled workers. Eligibility is governed by many of the same statutory definitions of "child" which the Court considered in Jimenez, but the definitional scheme differs in several crucial respects to suit the characteristics of a survivors' benefit program. All legitimate children occupy one category, as in Jimenez, and receive benefits without having to make an individualized showing of actual dependency. Illegitimate children are divided into a number of classes. Those applicants who make a showing that (a) they can inherit under the applicable state intestacy law, (b) their deceased parent had gone through a marriage ceremony with the other parent which, but for a nonobvious legal defect, would have been valid, (c) their parent had acknowledged his or actual parentage in writing, (d) their parent had been decreed by a court to be the parent, or (e) their parent had been ordered by a court to support the applicant because of parentage, are then declared eligible for benefits without having to make a further showing of actual economic dependency.
The critical difference between the requirements considered in Jimenez and Lucas was that all applicants for the benefits program with which Lucas was concerned still had a chance to show "by evidence satisfactory to the Secretary" that the deceased worker "was living with or contributing to the support of " the applicant at the time the worker died. Social Security Act, 42 U.S.C. § 416(h)(3)(C)(ii). [Emphasis added.] Thus the illegitimate children involved in Lucas were given a chance to show dependency, and challenged the statute only after they were unable to make this showing. They were restricted to arguing before the Supreme Court that Congress' purpose in enacting the program of benefits in question was not to aid dependents of enrolled workers, but all children of enrolled workers, dependent or not. Lucas, supra, 427 U.S. at 508, 96 S. Ct. 2755. Plaintiffs contended further that, in any event, the statute violated equal protection principles by extending a "presumption" of dependency to all legitimates and to those illegitimates within the exceptions, while requiring that their subclass of illegitimates make a showing of actual dependency. At 508-509, 96 S. Ct. 2755. This amounted to a contention that since the Congressional authors had been over-inclusive in some respects for reasons of administrative convenience and ultimate economy, they should be compelled to be over-inclusive in all other respects for reasons of constitutional equity.
Finding plaintiffs were wrong in their assessment of legislative intent, the Court indicated that the purpose of the Social Security Act provisions was to route benefits only to dependent children. This determination meant that the statute was not at all under-inclusive, since all illegitimates had a chance to show their dependency and thus qualify for benefits, but that its presumptions made it over-inclusive. The Court then pointed out that the Act's use of presumptions was directed at avoiding "the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable," at 509, 96 S. Ct. at 2758, and concluded that these presumptions were "reasonably related to the likelihood of dependency at death." Id.
As for the contention that Congress could not be over-generous in some categories unless it was over-generous in all, the Court noted that its standard of review for legislative distinctions based on illegitimacy was "less than strictest scrutiny," at 510, 96 S. Ct. 2755, and that the statute before it did not "broadly discriminate between legitimates and illegitimates without more, but [was] carefully tuned to alternative considerations." At 513, 96 S. Ct. at 2766. In particular, a presumption of dependency was extended to some illegitimates, and was "withheld only in the absence of any significant indication of the likelihood of actual dependency." Id.
This approving language was confined to the statute before it in which Congress had granted presumptions to some children and required of others proof that they came within the law's purpose. The Court sharply distinguished situations, similar to the instant case, in which an opportunity to show proof was denied altogether:
To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the Court has invalidated legislative discriminations among children on the basis of legitimacy. . . . Under all but one of the statutes, not only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. . . . [The] conclusiveness in denying benefits to some classes of afterborn illegitimate children, which belied the asserted legislative reliance on dependency in Jimenez, is absent here, for, as we have noted, any otherwise eligible child may qualify for survivor benefits by showing contribution to support, or cohabitation, at the time of death. At 511-512, 96 S. Ct. at 2765.
Lucas represents a useful refinement of the Jimenez opinion, which did not indicate whether the core of the constitutional infirmity to the statute involved lay in its grant of benefits to some children without a required showing of dependence, its denial of benefits to others without the opportunity of a showing, or both in equal measure. Lucas established that the decisive constitutional requirement in such cases is a fair opportunity for plaintiffs to demonstrate, before being rejected conclusively for benefits, that they are in the class of people the statute is designed to serve.
It is true that the Supreme Court has sustained, in other areas of social welfare legislation, classifications which create irrebuttable presumptions of non-eligibility. Mathews v. De Castro, 429 U.S. 181, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976), involved a provision of the Social Security Act which grants benefits to a married woman whose husband retires or becomes disabled if she has a minor or other dependent child in her care, but does not grant benefits to a divorced woman in the same position. As the Court observed, the overall purpose of the Social Security system is to provide workers and their dependents with basic protection against certain hardships. At 186, 97 S. Ct. 431. Plaintiff argued, in effect, that the statutory provision at issue was fatally underinclusive in imposing an irrebuttable presumption that divorced women did not come within this purpose.
The Court decided that the legislative classification at issue was to be evaluated according to the traditional test of whether it was rationally related to the statute's overall objective. At 185, 97 S. Ct. 431. Congress, the Court concluded, "could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married." At 188, 97 S. Ct. at 436. Accord Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975).
The reason that principles like the ones applied in De Castro are not applied when the federal courts evaluate legislative classifications based on illegitimacy is that the Supreme Court has directed that illegitimacy be treated differently. Unlike distinctions turning on race, distinctions premised on illegitimacy are not "suspect" and are not subject to "strict scrutiny." Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). On the other hand, unlike divisions based on the fact of marriage as opposed to divorce, distinctions which turn on illegitimacy have inspired a special jurisprudence which sets them apart from other schemes of classification. The prospect of children being denied legal rights or government assistance because of matters beyond their control appears to disturb members of the modern court.
They have chosen to review twelve cases on the issue since 1968 and have struck down distinctions based on birth in ten of them. Trimble, supra at 764, 97 S. Ct. 1459.
While the constitutionality of legislative classifications based on illegitimacy still turns, as with other classifications, on the "character of the discrimination" and its relationship to the overall purposes of a statute, Lucas, supra, 427 U.S. at 504, 96 S. Ct. 2755, this relationship must be more than merely "rational." When statutory classifications "approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny." Trimble, supra, 430 U.S. at 767, 97 S. Ct. at 1463, quoting Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972).
In the instant case, while the relevant statute is challenged on equal protection grounds, the unequal protection involved has to do with the alleged withholding of due process from illegitimate children. See Stanley v. Illinois, 405 U.S. 645, 649, 658, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Carrington v. Rash, 380 U.S. 89, 90, 96-97, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 98 L. Ed. 884 (1954).
Since illegitimate children are given an opportunity to show that they "lived with" the deceased worker, the issue is not whether "process" has been denied altogether, but whether the process provided is that which is "due" to illegitimate children in this situation. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 263, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
As a general matter, Lucas and Jimenez indicate that when a government program aiding dependents of workers is involved, illegitimate children must be given an opportunity to show dependency. "Assuming that the appellants are in fact dependent on the claimants, it would not serve the purpose of the Act to conclusively deny them an opportunity to establish their dependency . . .." Jimenez, supra, 417 U.S. at 636, 94 S. Ct. at 2501; see Stanley v. Illinois, supra, 405 U.S. at 652-653, 92 S. Ct. 1208. Lucas held, in effect, that allowing illegitimate applicants a chance to show that the deceased worker "was living with or contributing to the support of" the applicant was commensurate with allowing them a chance to show "dependency", at least when such an opportunity was linked with other exceptions under which illegitimate children could qualify for benefits. The statute before us gives illegitimate applicants a chance to show that they "lived with the employee . . . in a regular parentchild relationship", and thus includes one of the two final qualifying factors present in Lucas.
By itself, a numerical count of the ways in which illegitimate children can qualify for benefits is a crude measure of constitutional adequacy at best, but it suggests something of the problem with the provision before us. Lucas upheld a statute under which illegitimate children may qualify to receive benefits if they meet any of seven different criteria. Jimenez struck down a statute under which afterborn illegitimates received benefits if they met any of five criteria. We have before us a statute under which illegitimates can qualify under a single criterion only. We note also that if the father of the children here had been under the Social Security system rather than the Civil Service Retirement system, his illegitimate children would have qualified for benefits under three of the criteria considered in Lucas and Jimenez. The father of these children had been decreed by a court to be the parent (and in addition had acknowledged them), had been ordered by a court to support the children because he fathered them, and was contributing to the support of the children at the time he died.
A sophisticated means of using the number as well as the substance of potential qualifying factors in order to test constitutional adequacy is the concept of "fine tuning" first presented in Lucas. The Court there, upon examining the eligibility options open to illegitimates, concluded that "the statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations." Supra, 427 U.S. at 513, 96 S. Ct. at 2766. Just six months ago in Trimble, supra, the Supreme Court considered a state statute which allowed illegitimates to inherit by intestate succession only through their mothers. The Court wrote,
[The] question of whether the statute "is carefully tuned to alternative considerations" is equally applicable here. We conclude that [the intestacy statute] does not meet this standard. . . . The facts of this case graphically illustrate the constitutional defect of [the statute]. Sherman Gordon was found to be the father of Deta Mona in a state court paternity action prior to his death. On the strength of that finding, he was ordered to contribute to the support of his child. That adjudication should be equally sufficient to establish Deta Mona's right to claim a child's share of Gordon's estate . . .. 430 U.S. at 772, 97 S. Ct. at 1466.
In the instant case, as indicated, the deceased was found to be the father of the children in a paternity action in the District of Columbia and ordered to contribute to the support of his children. Notions of "fine tuning" suggest that these facts should have been included as "alternative considerations" in the Civil Service Retirement laws, just as they were in the Social Security laws -- at least in a situation, such as this, in which there is a lack of other alternatives to the single "lived with" criterion.
The matter boils down to this: given that the overall purpose of the statute is to aid dependents of federal employees, and given that the "character of the discrimination" here revolves around use of a single criterion to determine the dependency of illegitimates, and given that the relationship between the discriminatory factor and the statutory purpose must survive an analysis of intermediate intensity, does imposition of this single criterion upon illegitimates deprive them of the equal protection of the laws? This Court decides that it does. In this day and age, cohabitation with one's parent does not correlate reliably with economic dependency upon one's parent, as any consideration of the number of divorces and separations involving the once-married will show. The law recognizes this poor correlation implicitly by not requiring a showing of cohabitation for legitimate children. Further, it is revealed by analysis of the alternative criteria contained in the statute considered in Lucas. An individual who has been decreed by a court to be a child's parent, or who has been ordered by a court, presumably without his blessing, to render child support, is unlikely to be living with the illegitimate child whom the court is attempting to help. The Social Security Act's definitional scheme for qualifying applicants for survivors' benefits thus covers children who would be excluded by a cohabitation criterion applied alone. In contrast, The Civil Service Retirement Act's definitional scheme strands these children, among whom are the children in this case.
Stated in the language of Lucas and Trimble, the statute before us discriminates between legitimates and illegitimates without the fine tuning such a sensitive distinction requires. The Court is persuaded that the character of the discrimination effected by the statutory language does not bear a relationship to the statute's overall purpose which is even rational, given that the purpose is to aid all children who are dependents of federal employees enrolled in the Civil Service's program of benefits. Much less could the relationship in question withstand a more demanding level of scrutiny.
The Court, therefore, enjoins the Civil Service Commission from imposing the "lived with" eligibility requirement of 5 U.S.C. § 8341(a)(3)(A)(ii) upon illegitimate applicants. We direct the Commission to place plaintiff's children on its rolls for receipt of child survivor annuities, and to dispense to plaintiff's children a lump sum in the amount of annuity payments the children would have received if their application had been approved when it was originally filed on January 18, 1975.