The opinion of the court was delivered by: PENN
The issue presented in this case is whether Section 202(e)
of Title II, of the Social Security Act (Act), as amended, 42 U.S.C. § 401, et seq., which provides for the payment of social security benefits to surviving divorced wives, on the basis of their deceased spouses' earning records, but does not provide for the payment of similar benefits to surviving divorced husbands, is constitutional.
The case now comes before the Court on the motion for judgment on the pleadings filed by the defendant
, and the motion for summary judgment filed by the plaintiff. After giving careful consideration to the arguments advanced by both sides to the controversy, this Court concludes that the statute as it presently reads is unconstitutional.
There is no dispute as to any material fact in this case; those facts are as follows: The plaintiff was married to Ruth Baker in Laguna, California, on January 30, 1928. The marriage was dissolved by a final decree of divorce filed on March 7, 1956. Mrs. Baker died on January 25, 1974, and at that time was a fully insured individual within the meaning of the Act. See 42 U.S.C. § 414(a). Plaintiff has, since January 25, 1974, met all of the requirements for dependent benefits under 42 U.S.C. §§ 402(e) and 402(f) save for the fact that he is a surviving divorced husband instead of a surviving divorced wife. He is 79 years old, a citizen of the United States and a resident of the District of Columbia.
Plaintiff filed a timely claim for dependent benefits as the surviving divorced husband of Ruth Baker and that claim was denied. His request for reconsideration was also denied. He then filed a "expedited appeal" of the denial of his claim pursuant to 20 CFR § 404.916a, et seq. Thereafter, the plaintiff and the Secretary entered into an Agreement
stipulating the facts and isolating the constitutionality of the pertinent sections of the Act as the "sole issue in dispute". They agreed that, but for the provisions of the Act which prohibit entitlement of a surviving divorced husband to benefits under the Act, the rights of the plaintiff to such benefits have been established. Finally, they agreed that the denial of plaintiff's request for reconsideration represents the final decision of the Secretary in accordance with 42 U.S.C. § 405(g), and both have waived the necessity to pursue the remaining steps in the administrative appeal process.
The Court has jurisdiction to hear this case.
The Act provides that the widow and "every surviving divorced wife" of a fully insured individual, subject to certain requirements, "shall be entitled to a widows insurance benefit". 42 U.S.C. § 402(e). However, the Act, while providing for the payment of similar benefits to the widower of a fully insured individual, makes no provision for the payment of such benefits to the surviving divorced husband. See 42 U.S.C. § 402(f). While Title II of the Act defines "divorced wife", 42 U.S.C. § 416(d)(1), and "surviving divorced wife", 42 U.S.C. § 416(d)(2), it neither uses nor defines "divorced husband" or "surviving divorced husband". See 42 U.S.C. § 416(f) & (g). The defendant concluded, based upon the failure of the statute to include any reference to divorced husband or surviving divorced husband, that plaintiff was not entitled to the claimed benefits.
There is no dispute then, that the pertinent sections of the Act provide for a classification based upon gender. Any such classification is "inherently suspect and must therefore be subjected to close judicial scrutiny". Frontiero v. Richardson, 411 U.S. 677, 682, 93 S. Ct. 1764, 1768, 36 L. Ed. 2d 583 (1973). See also Reed v. Reed, 404 U.S. 71, 75, 92 S. Ct. 251, 253, 30 L. Ed. 2d 225 (1971). This is so because such a classification is arguably a denial of equal protection, and if a denial of equal protection, the classification is unconstitutional. Moreover, the fact that the classification discriminates against a male (surviving divorced husband), rather than a female (surviving divorced wife), does not protect it against scrutiny. See Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 1111, 59 L. Ed. 2d 306 (1979). To withstand scrutiny under the equal protection clause, "classification by gender must serve important governmental objectives, and must be substantially related to the achievement of those objectives". Califano v. Webster, 430 U.S. 313, 316-317, 97 S. Ct. 1192, 1194-1195, 51 L. Ed. 2d 360 (1977). See also Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 100 S. Ct. 1540, 1545, 64 L. Ed. 2d 107 (1980).
Before discussing the constitutionality of the challenged section of the Act, it is useful to briefly review a series of cases decided by the Supreme Court involving similar challenges to gender-based statutes.
The burden is on those defending the discrimination to demonstrate that the statute serves an important governmental objective and is substantially related to the achievement of that objective. Wengler v. Druggist Mutual Ins. Co., supra, 446 U.S. at 151, 100 S. Ct. at 1546. In Wengler, the court considered the constitutionality of a Missouri statute which denied a widower benefits on his wife's work related death unless he was either mentally or physically incapacitated or could prove dependence on his wife's earnings. The same statute granted a widow death benefits without any proof of dependence. The Court found that the statute violated equal protection. Those who argued that the statute was valid noted that in 1925 the state legislature thought that widows were more in need of prompt help than widowers, and further that the substantial difference in economic standing between men and women justified the advantage given to widows. The Court noted that such a bare assertion "falls far short of justifying gender-based discrimination on the grounds of administrative convenience". 446 U.S. at 151, 100 S. Ct. at 1546.
The Court had likewise rejected a claimed justification of administrative convenience in several earlier cases. In Frontiero v. Richardson, supra, the Court struck down a provision which required a female military officer to prove that her husband was dependent upon her for more than one-half of his support before she could obtain increased quarters allowance and medical benefits while a male similarly situated officer could obtain the increased benefits for his wife without a showing that she was dependent upon him for more than one-half on her support. This provision was based on the Government's claim that wives were frequently dependent on their husbands while husbands were rarely dependent upon their wives. The Court concluded that the claimed justification failed to save the discrimination. See also Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977); Reed v. Reed, supra.