*1 It is for this reason represents. the flag and that tolerance indeed, ma- compels the is desecration flag offensive— shoddy way in no endorse that “We jority emphasize flag Ms. American treatment disrespectful and is an flag fact that mindful of the Bricker. We are particularly Pennsylvanians, symbol to millions important It armed forces.” in our nation’s for it fought those who accompa- statement political not artistic matters whether flag, message for the nies treatment disrespectful thereof, flag is that what the even in the conveyed, absence This is expres- the individual. is revered symbolizes expression. punishment suppression sion its FLAHERTY, J., concurring opinion. joins this A.2d 265 Kline
Bonita CURTIS Philip KLINE. H. Pennsylvania,
Appeal of COMMONWEALTH OF PUBLIC WELFARE. DEPARTMENT Pennsylvania. Supreme Court Argued Sept. 1995.
Decided Oct. *4 Kane, Manne, Harrisburg, A. for Pittsburgh, W. John Jason Dept, Public Welfare. for Myers, Reading,
Kenneth C. B. Curtis. Mitman, Jr., Chester, for P. Kline. West William for Amicus. Momjian, Philadelphia, Albert CAPPY, NIX, C.J., FLAHERTY, ZAPPALA, Before MONTEMURO, CASTILLE and JJ.
OPINION ZAPPALA, Justice. Blue, (1992),
In Blue Pa. we a recognize duty requiring parent declined duty had legal because no such educational or our imposed by Assembly developed been General decision, legislature law. As a result of our Blue case Act 62 of 1993. 3 of the Act states: promulgated Section may (a) rule.— ... a order either both court General divorced, are unmarried or separated, who oth- subject obligation pro- to an existing support erwise vide for costs of their child wheth- equitably educational this is made before or application er child years age. after the has reached 18 4327(a). § 23 Pa.C.S. the Act violates the
The issue now before us whether the Fourteenth Amendment equal protection clause of *5 of Pleas of States Constitution.1 The Court Common United did, resulting held that this direct County Chester appeal.2 not in is the father dispute. Appellee
The relevant facts are 12, 1991, Jason, an order of July Amber and Rebecca. On Appellee’s entered on behalf of children. court for was 2, 1993, his Appellee petition March filed a to terminate On Amber, at as to a student Kutztown Univer- support obligation Jason, University. at After sity, and a student West Chester in- was leave to promulgated, Appellee granted Act 62 was Act a basis for challenge clude a constitutional to the as seeking post-secondary support. relief from educational Attorney
In accordance with Pa.R.Civ.P. General challenge was notified of the constitutional to Act but 11, 1994, participate litigation. January declined to On Appellee’s petition the trial court to terminate granted Jason, that Act 62 violated the concluding for Amber and clause of the Fourteenth Amendment of the equal protection Appellee’s petition After to modi- United States Constitution. fy support obligation his education was dis- post-secondary (DPW) of, posed Department sought of Public Welfare leave to intervene. DPW then filed a notice of granted was appeal to this Court. clause of the Fourteenth Amendment equal protection in pertinent part provides:
of the United States Constitution life, ... deprive any person liberty, No State shall law; deny due nor property, process without jurisdiction equal protection within its person laws. principle equal
The essence of the constitutional circum protection persons under the law is like like similarly. Laudenberger be treated v. Port Au stances will County, 496 Pa. thority Allegheny Appellee equal protection that he was denied under 1. The did not assert note, however, apply We that we our state constitution. would analysis same and reach the same result under our state constitution. § 2. 42 Pa.C.S. circum- under all
However,
persons
that all
require
it does
*6
the
James v.
under
law.
protection
identical
enjoy
stances
(1984).
137,
equal
right
1302
The
Pa.
477 A.2d
505
SEPTA
the
absolutely prohibit
does not
under the law
protection
for
purpose
classifying
from
individuals
Commonwealth
treatment,
v. Penn Hills School
Robson
different
receiving
(1981),
250,
1273
and does
District,
437 A.2d
63 Pa.Cmwlth.
having
different needs.
require
people
not
equal treatment
Commonwealth,
42
Welfare,
Public
Department
Houtz v.
(1979).
406,
prohibition against
The
We are also mindful of the different types of classifications and the standards according to which they are weighed: (1) types classifications are: classifications which (2)
implicate a “suspect” class or a fundamental right; implicating “important” though not funda- classifications (3) right classification; mental or a “sensitive” classifi- cations which involve none of these. Id. Should the statu- tory in question classification fall into category, the first statute is strictly light construed of a “compelling” gov- purpose; ernmental if the classification falls into the second *7 a category, heightened standard of scrutiny applied is to an “important” governmental purpose; and if the statutory scheme falls into the category, third the statute if upheld is any there is rational basis for the classification. City 138,
Smith v.
512 Pa.
Philadelphia,
129 at
In this we are satisfied that Act 62 neither a implicates suspect class nor infringes upon a fundamental Neither right. the United States Constitution nor the Penn sylvania Constitution an provides individual right post- secondary education. The Pennsylvania Constitution provides that, only Assembly “The General shall for the main tenance and of a thorough system and efficient of public education to serve the needs of the Commonwealth.” III, Article Section 14. Through the Public School Code of 1949, 10, 1949, Act of March amended, P.L. § as 1- P.S. 101 et seq., Assembly General has a statutory established right participate in public education and has established compulsory attendance requirements that in no case extend to post-secondary § education. § See P.S. 13-1301 and 13- guided by principle 3. We are also strong presumption that a exists legislation promulgated by that all Assembly the General is constitution- § al. 1 Pa.C.S. 1922. See also Federal Communications Commission v. Communications, Inc., Commonwealth, supra; Beach Dpt. Plowman v. Transportation, 535 Pa. no appears to be from Act there Apart 1326—13-1330. an individual’s “entitlement” policy regarding expression education. post-secondary participate Likewise, implicate important not the classification does must be Act 62 right.4 Consequently, though fundamental prescribed if basis for the there exists rational upheld Act’s we review the It is in this context that classification. legal a mechanism of a and more duty, significantly creation separat- to situations of duty, of that limited for enforcement ed, divorced, their or unmarried children. test, adopted
In we applying the rational basis Commonwealth, analysis. Dpt. two-step See Plowman (1993). First, we 535 Pa. 635 A.2d Transportation, pro statute challenged must determine whether seeks so, If value. we any legitimate public mote state interest or in the adopted must next determine whether the classification reasonably accomplishing related to that articu legislation or interests. lated state interest preamble legislature’s to Act 62 sets forth the in the Superior “to decision Court codify
intention Sommerville, subsequent ... and the line case of Ulmer v. Pennsyl decision of prior cases Ulmer to the interpreting ” (Citations in Blue omit Supreme v. Blue.... vania Court ted). It also states:
Further, rational finds that has a Assembly General in some requiring interest legitimate governmental for higher assistance for a education financial parental divorced, are unmarried parents separated, children of who existing support obligation. to an subject or otherwise question legisla- begs latter statement whether This in treating children actually legitimate ture has a interest than divorced, differently parents or unmarried separated, both he and his ex-wife Appellee admits that court below argues applied. argued a basis” test be He now that “rational should applicability “heightened addressed the of a that since trial court test, Since scrutiny” argument be considered waived. that should not court, we to address it. was before the trial decline that issue not raised children of parents married "withrespect post- to the costs of secondary education.
Appellant argues with the of Act passage 62 the legislature may have chosen to treat the children of married families and differently, families not as a divorced/unmarried latter, preference towards the but out of to deference strong Commonwealth’s in protecting interest the intact mari- tal family governmental unit from interference. Alternatively, Appellant argues that legislature may have determined that children in non-intact or non-marital require families educational to advantages disadvantages overcome attendant to the lack of an intact marital family. The critical consider- ation is whether either of these any bases or other conceivable for basis distinction treatment is reasonable.
Act 62 young classifies adults according to the marital status of parents, establishing their group one an action to obtain a benefit enforceable court order that is not avail- able to the other group. category The relevant under consid- eration is children in need funds for a post-secondary education. The Act divides these persons, similarly situated respect with assistance, their need for into accord- groups ing to the marital i.e., status of their parents, children of divorced/separated/never-married parents and children of in- tact families.
It will not do to argue that this rationally classification is related to the legitimate governmental purpose of obviating difficulties encountered those in non-intact families who want parental financial assistance for post-secondary edu- cation, because such a statement of governmental purpose validity assumes the of the classification. Recognizing that category within the young adults need of help financial attend there are some having parent unwilling such help, question remains whether the authority may of the state be selectively applied empow- only er those from non-intact families to compel such help. hold may We that it not. In the absence of an entitlement on part education, individual to post-secondary or a generally applicable requirement that parents assist their *9 education,5 no perceive we obtaining such adult children only certain the to government rational basis for state difficulties overcome the legal with means to adult citizens that pursuing encounter end. a divorced today’s society that It is not inconceivable father, children, of a one born e.g., a could two parent, him and the other born of residing and not with marriage first him. Act with Under marriage residing a second and still required provide post-secondary a could to such father be second, even for first child but the support educational the to forego child be required the extent that the second would Further, a age a over the of of a education. child against died have no action woman whose husband had would education, post-secondary mother recover costs of a but married, a who never who age a child over the of woman divorced, only from separated married or even who was he to maintain such an her husband when died would be able examples demonstrating arbi- action. These are but two in Act adopted 62. trariness the classification LeClair, (1993), In LeClair v. N.H. Court was faced with issue Hampshire Supreme the New post- regarding a constitutionality of the state statute be noted that secondary support. Initially, educational must Hampshire upon this based New appeal the Court decided even contended though appellant constitution equal him under both the federal and protection statute denied state constitution. Hampshire underlying premise upon
The which New analysis undertook its constitutional Supreme Court legis- scheme was that post-secondary educational and di- parents two married lation created classifications: protect was to parents. object legislation vorced unjustly deprived from parents being children of divorced had if their they would otherwise have opportunities Quaere statutory liability legislature extend the whether could 4321(2), § applicable parents, 23 Pa.C.S. of children all status, 4323(b), duty § to include regard without to marital Pa.C.S. post-secondary pay costs? education *10 had not divorced. The statute was to ensure promulgated that children of divorced families are not deprived of edu- cational opportunities solely because their families are no longer intact. The result a heightened judicial is involvement in the financial and personal lives of divorced families with children that is not necessary with intact families with chil- dren. The New Hampshire Supreme Court concluded that because of the unique problems families, of divorced legislature could rationally conclude that judicial absent in- volvement, children of divorced may families be less likely than children of intact families to post-secondary receive educational from both parents. state,
With all due respect to our sister reject we must Hampshire New Supreme analysis Court’s in LeClair. The discriminatory adopted by classification legislature our is not focused on but rather the children. The question similarly adults, whether situated young i.e. in those need of assistance, financial may be treated differently.6 Ultimately, we can conceive of no why rational reason those similarly situated respect with to needing funds for education, should be treated unequally. Accordingly, we agree pleas with the common court and conclude that Act 62 is unconstitutional.
The Order is affirmed. MONTEMURO, J.,* a files Dissenting Opinion which Mr. Cappy joins. Justice
MONTEMURO, Justice, dissenting.
I must dissent.
out,
As Majority correctly
points
the rational basis test
to determine
first,
whether a statute is constitutional requires,
a determination of whether the challenged legislation seeks to
promote any legitimate state interest.
It must then be decid-
ed whether the statute bears a reasonable relationship to the
Childers,
592,
(1978),
6. See also Childers v.
89 Wash.2d
Majority the is government of the interest which statute legitimacy the to designed promote. expressly at education of the citizens furthering
Act 62 is directed the assumption that operates It on the of this Commonwealth. the children of necessarily disadvantage involves a divorce families, who and is intended to assure that children broken their disadvantaged the separation are thus divorce post deprived opportunity acquire are not of the effect, In attempts maintain secondary school education. they in the would position the children of divorce same Act in intact. The parents’ marriage been had their remained to, it, place rights nor on the premium is not intended does for devaluing rights of children of divorce while the same that, in merely recognizes marriage. children from intact It children, has a effect which general, upon divorce deleterious should, while insofar as is be redressed. Thus possible, result, intended a “differ- principles permit constitutional this as opinion” recognized by Legislature the ence fact or that, for Majority at least purview, within its has declared children, the children of age the distinction between simply does families and those intact families broken exist. underlying authenticity premise
In of the rejecting statute, legisla- Majority validity also challenges expressed It that intention of tive interest. contends Legislature statute “will not do” because the actually has no legitimate interest children treating marriages of broken differently than children of intact marriages. Majority The theorizes that since the children of intact may families be no education, less in purposes need of funds for of higher similarly are separated situated to children of divorced or parents, and distinction between them inconsequential.
It would be difficult to argue successfully
payment
that the
is,
of child
general,
obligation freely acknowl-
edged
willingly
and
undertaken by
parents.
non-custodial
time,
extraordinary amount of
attention
money
devoted
courts, government agencies and
legislatures
fashioning and
enforcing
orders is
testament
to the unfortunate fact
Moreover,
that
opposite
is true.1
the impact
parental
non-compliance with support orders on children in need of
obvious,
basic necessities is
hence the
purpose
stated
Support Guidelines is to provide for children’s reasonable
do,
might,
needs which
and frequently
absent enforcement of
orders,
go
established
otherwise
unmet.2
It
widely
has also been
acknowledged
among
negative effects of divorce on children are those which concern
e.cj., Smyer
education. See
higher
and Cooney, Family Rela-
tions Across Adulthood: Implications
Alimony
and Child
Decisions,
Support
American Bar
Sympo-
Association National
*12
sium on Alimony
Support
24-25, 1987);
and Child
(Apr.
Wal-
Corbin,
lerstein and
“Father Child
Di-
Relationships After
vorce; Child Support and Educational
20
Opportunity,
FAM.
(cid:127)
(1986).
L.Q. 109
Courts faced with cases similar to the one at
noted,
divorce,
bar have also
over and over
again, that
no longer apply. Ex Parte
may
normative rules of behavior
(cid:127)
1994,
$100,000,000
year
1.
Pennsylvania expended
In fiscal
over
$840,000,000 through
Support
collect over
the Child
Enforcement
Program, using
wage
various mechanisms
such as
attachment. Of
collections,
$713,000,000
these
more than
was distributed to non-AFDC
Enforcement,
(Ranking
Region
Support
families.
III States Child
1994)
Fiscal Year
1993,
Nationally,
$16.3
billion due under court orders in
about
actually paid,
$11.2
only
was
with
about half of those awarded
Enforcement,
(Child
receiving
Support
Eighteenth
the full amount.
Report
Congress)
Annual
263
(Ala.1989);
v.
Kujawinski Kujawinski,
The courts addressing uniformly issue have decided that equal protection is not offended by attempt equalize situation disparate faced children of divorce. Only means are different. facing challenges statutory Those to a provision all found that the differences between married and divorced parents necessity establishes the to discriminate classes, Childers; Others, e.g., between the Vrban. exam- ining judge-made dependency justified law found an extended all, however, They court intervention. delegated to the court authority to determine the of an propriety award. LeClair, In (1993), LeClair v. 137 N.H. Hampshire Supreme recognized New Court and addressed very concerns toward which 62 Act is directed—the disad- vantage on wrought parents, children divorce of their necessity protect for court intervention to them from the consequences disadvantage. Hampshire of this The New stat- *13 ute, 458:20, RSA Hamp- codified decisions which the New jurisdiction the recognized
shire Court had Supreme consistent with their parents, court to order divorced superior means, their expenses the educational of to contribute toward the Challengers of the statute bore college age children.3 of showing that the court had committed an abuse burden of and unfair.” Id. discretion, “improper and that the order was argument A.2d at The equal protection at similarly with parents, finding focused the them situated on However, the states that respect Majority to the issue. here children, of the because focus of Act 62 is the treatment marital of their is irrelevant.4 parents status legisla- is since child argument specious,5
This
necessarily
parents.
tion
involves the marital status
unless
by
Intact
do
suffer intervention
courts
families
Recognition of the
neglected.
their
are abused or
children
for
judicial
require support
need for
or
action to
legislative
irrefutable,
continuing
is
as
children of broken families
efforts to
collection of
attest.
governmental
improve
does,
conclude,
merely
the Majority
It is
as
unrealistic
than
are in need of
rather
because children
funds
subsistence,
their
marital
has
parents
the effect of
status
Legislature
enacting
Pennsylvania’s
3. The
23 Pa.C.S.A.
intention
Hampshire. Passage
precisely
§
as that
4327 was
the same
of New
codify
years
legislative
thirty
of caselaw
Act 62 was a
effort
worth
Sommerville,
began
Superior
Court
in Ulmer
which
with
decision
v.
(1963),
Pa.Super.
265 altered, obligation of an is no magically and that enforcement longer necessary. remembered, to Majority and what the fails
What must be
directive
mandatory
is that Act 62 does not make
explore,
4327(e)6
stan-
college.
child
lists
pay
Section
not
determining
the court
whether or
dards
assist
are, in the
Unless these criteria
appropriate.
court,
parties,
liability
estimation of the
met
no
exists.
is,
liability,
The
lies with the nature of the
which
problem
moral
Un-
quite simply,
duty, circumstantially prescribed.
62,
subject
who are
to an
only by parents
der Act
it is owed
is,
acknowledged
existing support obligation,
contract,
involuntarily through
or
voluntarily through
either
necessity
responsibility
of court order that a financial
court has thus
pay
upkeep
for their children’s
exists. The
order,
of
an
or
already
entering
become involved to the extent
mechanism,
legal
e.g., separation agree-
there exists another
ment, through
accomplished
which enforcement can be
and
families,
contribution
In
or
monitored.
intact
absent abuse
occurred,
neglect, no such initial intervention has
and the
duty
court has no forum which to enforce a
on
imposed
Reeves,
parents. Compare,
these
Reeves v.
See, 92 32 v. 406 U.S. S.Ct. Wisconsin (1972) (state compel 15 cannot school attendance L.Ed.2d are com- eighth family’s religious where beliefs beyond grade Names Society Holy Pierce v. Sisters promised); 1070 69 L.Ed. Mary, 268 U.S. S.Ct. Jesus (1925) (state for all compel not school attendance public could Nebraska, 16); ages Meyer of 8 and children between (1923) (state 625, 67 could L.Ed. U.S. S.Ct. intervention teaching language). of German Thus prohibit intact mar- requiring parents in the form of a statute *15 indeed to finance their children’s education would riage right parties. the infringe upon constitutional/privacy the of in necessarily it follow that all cases children While does not that parental support college, are of deprived of divorce all of families are the reverse is true and children intact finances, necessary encouragement with the and provided are still married continue parents children whose most often not Equal protection does support past majority.7 to receive what every separately, that be addressed permutation demand uniformity. is sought equality is has no successfully argued It cannot be that the state citizens. in the education of its legitimate furthering interest the of system, multiplicity of state university The size the designed other community colleges programs and educational low to the post-secondary training, to cost all attest the information goal bettering state’s involvement with of Majority Clearly and level of attendees. functioning focus, its to the statute accepts query this hence as whether to all acceptable only require parents would be were altered of post-secondary expenses to contribute to the educational However, above, govern- as this their children. noted kind constitutionally ap- is when ment mandated action untenable intact to families. plied parents wisdom once dictated divorced
Conventional they interact with their children in the same manner as will during marriage. Experience the life of the has dictated did Washburn, Dad," "Post-Majority Support: Oh Dad 44 TEM- 7. R. Poor L.Q. PLE n. 55 of court for enforcement viz., need otherwise,8 widespread is compliance for whom parents from support even ordered at is, all, after these It hardship. not an economic in behavior parental modifies aimed. Divorce Act 62 is whom ignore To anticipated. be always cannot ways which differences, necessarily pro- impact and the of these reality as the educational shortsighted, children upon duced the suc- critical to are generations of the next achievements world. increasingly competitive in an country of this cess not, not, change direction and should need The law social winds. change prevailing every with comport and emotion- every psychological to redress designed Nor is it However, principles wake of divorce. al ill trails which protection to the unwavering an commitment justice require Refusal our children. society, of our of the weakest members compact, the social weakness breaches recognize their the law is intended of fairness principles the basic violates divorce, deprive chil- consequences uphold. Given which economic marriages dren of broken them deny is to from nuclear families normally receive would Childers, noted, the supra, the court As equal protection. a classifica- does establish of a burden imposition However, rather than discriminatory obligations. tion with *16 classification, in- there is unjust unreasonable arbitrary, courts, that the equity special powers a collection of stead the chil- protect used to long regardless legislation, 604, P.2d at 208. The Id. at homes. dren broken away. exists; be or wished ignored it cannot disadvantage no recourse for there is Majority’s prevails, If view twice, by first children, be victimized who will these parents’ of their and psychological, financial disruptions, both theoretically de- system which is divorce, by the again Moreover, will not such a course them. protect signed which, of a marriages because of intact the children benefit visited reports of children are not study One national 40% 8. Morgan, Furstenberg, Philip S. parents. Frank F. non-custodial their Allison, Well-Being Participation and Children’s D. “Paternal and Paul Dissolution,” REVIEW AMERICAN SOCIOLOGICAL After Marital (1987): 695-701. that non-support in education or a view parental disinterest ethic, refuse to parents the work will also encourages be no improvement assist their children. The result will anyone. moral which should motivate imperative
Once the conscious effort obligations dissipated, fulfill their has That a substitute where it is able to do so. state must wisely By disregarding has done. Legislature is what the Act trans- Majority rational basis advanced for now super-Legislature. forms this Court into a I Accordingly, dissent. J.,
CAPPY, joins in dissenting opinion. this
666 A.2d BOWMAN, Bowman, Jeffry In re L. III and Joshua Minors. Cynthia
Appeal of E. SHUEY. Supreme Pennsylvania. Court
Submitted June 1995. Decided Oct. 1995. Reargument Denied Jan.