to be providing support to the family, and while recognizing that there may have been empirical support consistent with the generalization, held that those grounds alone could not justify the gender-based discrimination. The court found offensive the assumption "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". Id. at 643, 95 S. Ct. at 1231.
In Califano v. Goldfarb, supra, the Court invalidated a statute which provided survivors benefits to a widow regardless of her dependence, but provided the same benefit to a widower only if he could demonstrate that he received over one-half of his support from his wife. Obviously the statute discriminated not only against the widower, but against his wife as well since, even though she was covered under the program, she could not assure her spouse of the same protection that she would receive if she were the survivor. Moreover, the sections of the Act under question were not based on a need that had been demonstrated, but represented a generalization that women are usually dependent. If the issue was one of dependency, it would seem that either both would be presumed to be dependent, or both would be required to prove their dependence.
The above decisions can, in most cases, be easily distinguished from those situations in which the Court upheld gender-based discrimination. In Schlesinger v. Ballard, 419 U.S. 498, 95 S. Ct. 572, 42 L. Ed. 2d 610 (1975), the Court upheld the regulation which provided that any male naval officer who had been passed over for promotion twice was subject to mandatory discharge regardless of the length of his commissioned service, while also providing that a female naval officer, who had been passed over for promotion twice, was not subject to mandatory discharge unless and until she had served at least thirteen years commissioned service. The complainant in the case was a male commissioned officer who had been passed over twice and who had nine years commissioned service. Had he been a female, he would not have been subjected to mandatory discharge unless he had reached his thirteenth year of commissioned service. Clearly this was gender-based discrimination, however, it was based upon a demonstrable fact and not an archaic and over-broad generalization. Id. at 508, 95 S. Ct. at 577. The fact was that female officers had less opportunity for promotion since their service at sea and in combat was restricted by regulation. This being the case, it was easily demonstrated that women officers might be passed over more times than men officers before receiving a promotion.
Similarly, the court upheld the statute in Califano v. Webster, supra, which allowed women insured under the Social Security Act to receive their old age benefits for less elapsed work years than men; a woman could receive her benefits at age 62, a man at age 65. The court found that the distinction was justified because it was based on need and not on dependence as in Califano v. Goldfarb, supra. The purpose was clearly set forth in the legislative history and supported by records of the Department of Labor. 430 U.S. at 318-320, 97 S. Ct. at 1195-1196. Those "facts" demonstrated that women had fewer employment opportunities than men.
One final case worthy of mention in this area is Kahn v. Shevin, 416 U.S. 351, 94 S. Ct. 1734, 40 L. Ed. 2d 189 (1974), in which the court upheld a Florida statute which gave a $ 500 real estate tax exemption to widows, but not to widowers. The court believed that the statistics established a lower median income for women than men and that that discrepancy justified the unequal tax treatment based on gender.
See also Wengler v. Druggist Mutual Ins. Co., supra, 446 U.S. 148, n.4, 100 S. Ct. 1544, n.4.
The review of the above cases is by no means exhaustive, but it does establish a guideline upon which this court can address the sections of the Act now under consideration.
As has already been noted, the challenged sections of the Act discriminate on the basis of gender and are therefore suspect; furthermore, it becomes the burden of the defendant to justify that discrimination. The defendant cites the Court to the legislative history, however, that history suggests that the statute was designed to protect a wife, whose marriage ended in divorce, at a point in time when she would be too old to build up a substantial social security earnings record. See S.Rep.No.404 (Part I), 89th Cong. 1st Sess. 101-108, reprinted in (1965) U.S.Code Cong. & Admin.News, pp. 1943, 2047-2048. That history cites no facts or statistics to support the conclusion of dependence; rather, it indicates an intent to accord benefits to the surviving divorced wife as the result of a presumed dependence. In this sense, it is subject to the same infirmities as were the statutes in Califano v. Goldfarb, supra, and Weinberger v. Wiesenfeld, supra.
The purpose of the legislation is set forth again in a statement supporting the statute at the time of its amendment in 1972. There it was stated:
(T)he intent of providing benefits to divorced women is to protect women whose marriages are dissolved when they are far along in years-particularly housewives who have not been able to work and earn social security protection of their own. H.R.Rept.No.231, 92nd Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 4989, 5041.
Again, the 1972 legislative history suggests nothing more than a presumed dependence of women without citing demonstrative facts. The underlying basis for the present statute is clearly distinguished from those in Schlesinger v. Ballard, supra, and Califano v. Webster, supra, where the statutes were designed to overcome a demonstrated problem of inequality. In Ballard it was the failure of women to have as many opportunities for promotion in the Navy as men; in Webster, it was the facts supported by labor statistics revealing that there was a need to equalize the standing of men and women, since women had not had the employment opportunities of men.
Additionally, the statutes in Webster and Ballard were not directed to dependence. Here, the legislative history presumes dependence and the statute is designed to rectify that presumed dependence. Unlike the statute in Califano v. Webster, supra, this statute is not based on need.
Even assuming arguendo that the requisite permissible purpose was demonstrated by the defendant, the statute is not substantially related to accomplish its alleged compensatory purpose. It assumes dependence and yet operates to favor all surviving divorced wives, whether dependent or not, and omits surviving divorced husbands, whether dependent or not. In that sense, it is not unlike the statute in Oliver v. Califano, Unempl.Ins.Rep. (CCH) P 15,244 (N.D.Cal. June 24, 1977).
This Court concludes then that the defendant has failed to justify the gender-based discrimination found in the statute and that, in its present form, the statute violates equal protection. It discriminates not only against the plaintiff and those similarly situated, but discriminates against the plaintiff's wife as well since she was denied the right to provide for her surviving divorced husband under the statute, and was therefore denied equal protection, since had she been a man, that protection would have been afforded her surviving divorced spouse.
The Court has entered an order directed to defendant, her officers, agents, servants and employees, and persons who are in active concert or participation with her or who receive actual notice of the order, not to deny Albert M. Baker his due benefits under 42 U.S.C. §§ 402(e) or 402(f) solely on the ground that he is a surviving divorced husband rather than a surviving divorced wife.
The Order also required the defendant to immediately pay to the plaintiff all benefits due him under the statute since the date he initially made claim therefor and to continue to pay those benefits to him until he ceases to be eligible for the benefits. The payment of the benefits shall begin immediately regardless of any appeal which may be taken in this case.
An appropriate Judgment Order has been entered.