CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. WESTCOTT ET AL.
No. 78-437
Supreme Court of the United States
June 25, 1979
443 U.S. 76
*Together with No. 78-689, Pratt, Commissioner, Department of Public Welfare of Massachusetts v. Westcott et al., also on appeal from the same court.
William H. Alsup argued the cause for appellant in No. 78-437. On the brief were Solicitor General McCree and Sara
Henry A. Freedman argued the cause for appellees in both cases. With him on the brief for appellees Westcott et al. were Kenneth P. Neiman and Michael B. Trister. Solicitor General McCree filed a brief for the federal appellee in No. 78-689.†
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Section 407 of the Social Security Act, 75 Stat. 75, as amended,
I
The Aid to Families with Dependent Children (AFDC) program, 49 Stat. 626, as amended,
As originally enacted in 1935, the AFDC program provided benefits to families whose dependent children were needy because of the death, absence, or incapacity of a parent. Batterton v. Francis, 432 U. S. 416, 418 (1977). This provision, which forms the core of the AFDC program today, is gender neutral: benefits are available to any family so long as one parent of either sex is dead, absent from the home, or incapacitated, and the family otherwise meets the financial requirements of eligibility.
In 1961, and again in 1962, Congress temporarily extended the AFDC program to provide assistance to families whose dependent children were deprived of support because of a parent‘s unemployment. Batterton v. Francis, 432 U. S., at 419; Philbrook v. Glodgett, 421 U. S. 707, 709-710 (1975). Again, this provision was gender neutral. A “dependent child,” for purposes of determining eligibility for AFDC benefits, was defined to include “a needy child . . . who has been deprived of parental support or care by reason of the unemployment . . . of a parent.” 75 Stat. 75 (emphasis added).
In 1968, as part of a general revision of the Social Security Act, Congress made this extension permanent. In so doing, however, it added a gender qualification to the statute. The
Appellees are two couples who, it is stipulated, satisfy all the requirements for AFDC-UF benefits1 except for the requirement that the unemployed parent be the father. Cindy and William Westcott are married and have an infant son. They applied to the Massachusetts DPW for public assistance, but were informed that they did not qualify because William, who was unable to find work, had not previously been employed for a sufficient period to qualify as an “unemployed” father under the Act and applicable regulations. Cindy, until her recent unemployment, was the family breadwinner, and would have satisfied the “unemployment” criteria had she been male.
Susan and John Westwood are also married and have an
Appellees instituted this class action in the United States District Court for the District of Massachusetts, naming as defendants the Secretary of HEW and the Commissioner of the DPW. Appellees alleged that § 407 and its implementing regulations discriminate on the basis of gender in violation of the Fifth and Fourteenth Amendments. They sought declaratory and injunctive relief.
The District Court certified the case as a class action,3 and granted appellees’ motion for summary judgment. 460 F. Supp. 737 (1978). The court found that the gender qualification of § 407 was not substantially related to the achievement of any important governmental interests. 460 F. Supp., at 748-751. It was, rather, the product of an “archaic and overbroad generalization“—that “mothers in two parent families
The District Court then turned to the question of relief. The court saw two remedial alternatives: a simple injunction against further operation of the AFDC-UF program, or extension of the program to all families with needy children where either parent is unemployed. Id., at 753. The court decided that extension, rather than nullification, was the proper remedial course; it noted the strength of Congress’ commitment to the “specific goal of assisting needy children,” and emphasized that if provision of benefits “were halted because of the constitutional defect, many persons would lose their very means of subsistence.” Id., at 753-754. The court therefore, by order dated April 20, 1978, enjoined the Commissioner from refusing to grant benefits to families made needy by the unemployment of the mother “in the same amounts and under the same standards” as he grants benefits to families made needy by the unemployment of the father. App. to Juris. Statement in No. 78-437, pp. 41A-42A. The court likewise enjoined the Secretary from refusing to provide federal matching funds for payment of such benefits. Id., at 40A-41A.
Although the Commissioner originally had agreed that this was the appropriate remedy, Juris. Statement in No. 78-689, p. 6, he later sought modification of the District Court‘s order, so as to effect a more limited extension of the AFDC-UF program. The Commissioner requested that he be permitted to pay benefits “only to those families where needy children have been deprived of parental support or care by the unemployment of the family‘s principal wage-earner.” App. to Juris. Statement in No. 78-689, p. 3a (emphasis added).4 This
The Secretary, pursuant to
II
THE SECRETARY‘S APPEAL
The Secretary advances two arguments in support of the constitutionality of § 407. First, he contends that although § 407 incorporates a gender distinction, it does not discriminate against women as a class. Second, he urges that the distinction is substantially related to the achievement of an important governmental objective: the need to deter real or pretended desertion by the father in order to make his family eligible for AFDC benefits.
A
The Secretary readily concedes that § 407 entails a gender distinction. Brief for Appellant in No. 78-437, p. 36. He submits, however, that the Act does not award AFDC benefits to a father where it denies them to a mother. Rather, the grant or denial of aid based on the father‘s unemployment
We are not persuaded by this analysis. For mothers who are the primary providers for their families, and who are unemployed, § 407 is obviously gender biased, for it deprives them and their families of benefits solely on the basis of their sex. The Secretary‘s argument, at bottom, turns on the fact that the impact of the gender qualification is felt by family units rather than individuals. But this Court has not hesitated to strike down gender classifications that result in benefits being granted or denied to family units on the basis of the sex of the qualifying parent. See Frontiero v. Richardson, 411 U. S. 677 (1973) (military quarters allowances and medical and dental benefits); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975) (survivor‘s benefits); Califano v. Goldfarb, 430 U. S. 199 (1977) (survivor‘s benefits); Califano v. Jablon, 430 U. S. 924 (1977), summarily aff‘g 399 F. Supp. 118 (Md. 1975) (spousal benefits). Here, as in those cases, the statute “discriminates against one particular category of family—that in which the female spouse is a wage earner.” Goldfarb, 430 U. S., at 209 (plurality opinion).
The Secretary appears to acknowledge the force of these precedents, but suggests that each involved benefits that either were a form of compensation earned by a woman as a member of the labor force, or were directly related to such compensation. In the present case, in contrast, the benefits are part of a noncontributory welfare program. Thus, the Secretary argues, the gender qualification of § 407 is distinguishable from those contained in the earlier cases, for it does not denigrate “the efforts of women who do work and whose earnings contribute significantly to their families’ support.” Wiesenfeld, 420 U. S., at 645.
The distinction between employment-related benefits and other forms of government largesse may be relevant to equal
B
The Secretary next argues that the gender distinction imposed by § 407 survives constitutional scrutiny because it is substantially related to achievement of an important governmental objective. Orr v. Orr, 440 U. S. 268, 279 (1979); Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190, 197 (1976). The Secretary identifies two important objectives served by § 407.
First and most obviously, the statute was intended to provide aid for children deprived of basic sustenance because of a parent‘s unemployment. H. R. Rep. No. 28, 87th Cong., 1st Sess., 2 (1961). As then HEW Secretary Ribicoff put it in
Second, the statute was designed to remedy a structural fault in the original AFDC program. Under that program, a family was eligible for benefits if deprived of parental support because of the “continued absence from the home . . . of a parent.”
We perceive, however, at least two flaws in this argument. Although it is relatively clear that Congress was concerned about the problem of parental desertion, see S. Rep. No. 744, 90th Cong., 1st Sess., 160 (1967); H. R. Rep. No. 28, 87th Cong., 1st Sess., 2 (1961), there is no evidence that the gender distinction was designed to address this problem. See Weinberger v. Wiesenfeld, 420 U. S., at 648. Both the original AFDC program, and the temporary versions of the AFDC-UF
“This program was originally conceived by Congress as one to provide aid for the children of unemployed fathers. However, some States make families in which the father is working but the mother is unemployed eligible for assistance. The bill would not allow such situations. Under the bill, the program could apply only to the children of unemployed fathers.” S. Rep. No. 744, at 160.
See also H. R. Rep. No. 554, 90th Cong., 1st Sess., 108 (1967). This suggests that the gender qualification was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.6 Congress was concerned that certain States were making AFDC-UF assistance available to families where the mother was out of work, but the father remained fully employed and able to support
Even if the actual purpose of the gender qualification was to deal with the problem of paternal desertion, it does not appear that the classification is substantially related to the achievement of that goal. The Secretary argues there is “[s]olid statistical evidence” that fathers are more susceptible to pressure to desert than mothers, and thus that Congress was justified in excluding families headed by unemployed mothers from the AFDC-UF program. Brief for Appellant in No. 78-437, p. 33. We may assume, for purposes of discussion, that Congress could legitimately view paternal desertion as a problem separate and distinct from maternal desertion. Even so, the gender qualification of § 407 is not substantially related to the stated purpose. There is no evidence, in the legislative history or elsewhere, that a father has less incentive to desert in a family where the mother is the breadwinner and becomes unemployed, than in a family where the father is the breadwinner and becomes unemployed. In either case, the family‘s need will be equally great, and the father will be equally subject to pressure to leave the home to make the
We conclude that the gender classification of § 407 is not substantially related to the attainment of any important and valid statutory goals. It is, rather, part of the “baggage of sexual stereotypes,” Orr v. Orr, 440 U. S., at 283, that presumes the father has the “primary responsibility to provide a home and its essentials,” Stanton v. Stanton, 421 U. S. 7, 10 (1975), while the mother is the “center of home and family life.” Taylor v. Louisiana, 419 U. S. 522, 534 n. 15 (1975). Legislation that rests on such presumptions, without more, cannot survive scrutiny under the Due Process Clause of the Fifth Amendment.
III
THE COMMISSIONER‘S APPEAL
A
“Where a statute is defective because of underinclusion,” Mr. Justice Harlan noted, “there exist two remedial alternatives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.” Welsh v. United States, 398 U. S. 333, 361 (1970) (concurring in result). In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course. See, e. g., Jimenez v. Weinberger, 417 U. S. 628, 637-638 (1974); Frontiero v. Richardson, 411 U. S., at 691 and n. 25 (plurality opinion). Indeed,
The District Court ordered extension rather than invalidation by way of remedy here, and equitable considerations surely support its choice. Approximately 300,000 needy children currently receive AFDC-UF benefits, see 42 Soc. Sec. Bull. 78 (Jan. 1979), and an injunction suspending the program‘s operation would impose hardship on beneficiaries whom Congress plainly meant to protect. The presence in the Social Security Act of a strong severability clause,
There is no need, however, to elaborate here the conditions under which invalidation rather than extension of an underinclusive federal benefits statute should be ordered, for no party has presented that issue for review. All parties before the District Court agreed that extension was the appropriate remedy. Juris. Statement in No. 78-689, p. 6; Motion to Affirm 5; Juris. Statement in No. 78-437, p. 6 n. 5. Appellees
B
The narrower question presented by the Commissioner‘s appeal concerns not the merits of extension versus nullification, but rather the form that extension should take. The District Court ordered that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act. The Commissioner agrees that either the mother‘s or the father‘s unemployment should be able to qualify a needy family for benefits, but proposes to award them only if the parent in question can show that he or she is both unemployed and the family‘s “principal wage-earner.” Citing the legislative history of the AFDC-UF program, the Commissioner argues that his proposed remedy comports with Congress’ intent to aid families made needy by their breadwinner‘s unemployment. This argument, as the preceding portions of this opinion show, is not without force. We may assume arguendo that, if Congress knew in 1968 what it knows now, it might well have adopted the “principal wage-earner”
First, the Commissioner‘s proposed remedy would have the effect of terminating benefits to many families currently receiving them. Under the Act and implementing regulations, benefits are paid to needy families of all unemployed fathers, whether or not the father is actually the “principal wage-earner.” See
Second, the Commissioner‘s proposed remedy would involve a restructuring of the Act that a court should not undertake lightly. Whenever a court extends a benefits program to redress unconstitutional underinclusiveness, it risks infringing legislative prerogatives. The extension ordered by the District Court possesses at least the virtue of simplicity: by ordering that “father” be replaced by its gender-neutral equivalent, the court avoided disruption of the AFDC-UF program, for benefits simply will be paid to families with an unemployed parent on the same terms that benefits have long been paid to families with an unemployed father. The “principal wage-earner” solution, by contrast, would introduce a term novel in the AFDC scheme,9 and would pose definitional and policy questions best suited to legislative or administrative elaboration. The Commissioner, with his “principal wage-earner” gloss on parental unemployment, in essence asks this Court to redefine “unemployment” within the meaning of the
The remedy the Commissioner proposes, of course, undeniably would be cheaper than the remedy the District Court decreed, in part because it would terminate some current recipients’ eligibility. Although cost may prove a dispositive factor in other contexts, we do not regard it as controlling here. The United States, which will bear the main burden of added coverage through federal matching grants, urges that the District Court‘s remedy be affirmed. The AFDC-UF program, furthermore, is optional with the States, id., at 431, and any State is free to drop out of it if dissatisfied with the added expense. This Court, in any event, is ill-equipped both to estimate the relative costs of various types of coverage, and to gauge the effect that different levels of expenditures would have upon the alleviation of human suffering. Under these circumstances, any fine-tuning of AFDC coverage along “principal wage-earner” lines is properly left to the democratic branches of the Government. In sum, we believe the District Court, in an effort to render the AFDC-UF program gender neutral, adopted the simplest and most equitable extension possible.
The judgment of the District Court accordingly is affirmed.
It is so ordered.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, concurring in part and dissenting in part.
I agree with the Court that § 407 violates the equal protection component of the Fifth Amendment. In my view, how-
As Mr. Justice Harlan observed:
“Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Welsh v. United States, 398 U. S. 333, 361 (1970) (concurring in result).
In choosing between these alternatives, a court should attempt to accommodate as fully as possible the policies and judgments expressed in the statutory scheme as a whole. See id., at 365-366, and n. 18. It should not use its remedial powers to circumvent the intent of the legislature.
The Court correctly observes that “the gender qualification [of § 407] was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.” Ante, at 87. It is clear that Congress intended to proscribe the payment of benefits to families where only one parent was unemployed and where the principal wage earner continued to work.
“From all that appears, Congress, with an image of the ‘traditional family’ in mind, simply assumed that the father would be the family breadwinner, and that the mother‘s employment role, if any, would be secondary.” Ante, at 88.
Yet the result of the Court‘s decision affirming the District
Rather than thus rewriting § 407, we should leave this task to Congress. Now that we have held that this statute constitutes impermissible gender-based discrimination, it is the duty and function of the Legislative Branch to review its AFDC-UF program in light of our decision and make such changes therein as it deems appropriate. Leaving the resolution to Congress is especially desirable in cases such as this one, where the allocation and distribution of welfare funds are peculiarly within the province of the Legislative Branch. See Califano v. Jobst, 434 U. S. 47 (1977); Maher v. Roe, 432 U. S. 464, 479 (1977); Dandridge v. Williams, 397 U. S. 471 (1970).
We cannot predict what Congress will think to be in the best interest of its total welfare program. The extension of AFDC benefits to families suffering only from unemployment was a relatively recent development in the history of the program, a development that Congress made permanent only on the understanding that payments could be limited to cases where the principal wage earner was out of work. We cannot assume that Congress in 1968 would have approved this exten-
The Court emphasizes the hardships that may be caused by enjoining the program until Congress can act. There is the possibility, not mentioned by the Court, that other hardships might be occasioned in the allocating of limited funds as a result of court-ordered extension of these particular benefits. In any event, Congress has the option to mitigate hardships by providing promptly for retroactive payments. An injunction prohibiting further payments at least will conserve the funds appropriated until Congress determines which group, if any, it does want to assist. The relief ordered by the Court today, in contrast, ensures the irretrievable payment of funds to a class of recipients Congress did not wish to benefit.2
Because it is clear that Congress intended to prevent the result mandated today, and that the re-examination of § 407 required under our decision properly should be made by Congress, I dissent.