*3 light statistical norm. of all these cir- GRAAFEILAND, NEW- Before VAN cumstances, nothing there is unconstitu- PRATT, Judges. MAN and Circuit challenged practice. about the tional PRATT, Judge: C. Circuit GEORGE appeal by question presented Background
The judg summary from the the United States 5, 1923, On November Charlotte C. Wal- Hanover Trust ment Manufacturers provided in- lace established a trust (S.D. States, F.Supp. v. United Co. and, death, come to her for her life on her Stewart, N.Y.1983), Judge, Charles E. son, corpus her Howard. The income to the Internal Revenue Service’s use whether pass by the terms of How- the trust would mortality gender-based tables to value mother, by if he outlived his but ard’s will reversionary of a decedent’s es interests prede- if he terms of Charlotte’s will 2037 violates the tate under U.S.C. § February died on ceased her. Charlotte guaranteed by the due equal protection 88; by age she was survived at the of the fifth amendment. process clause Howard, years old. The was then 57 who IRS, following regulations effect if the value of provides tax law estate used mor from 1970 reversionary interest in a trust a decedent’s tality to calculate the estate tax percent immediately before death exceeds by plaintiff Manufacturers Hanover owed value, corpus trust’s then the trust Company, as executor of the estate Trust included in the estate. 26 must be The district court of Charlotte C. Wallace. (1982). 2037(a)(2) U.S.C. § practice unconstitu held that the IRS tional, plaintiff awarded and it therefore the value executor calculated Charlotte’s $455,581.71plus interest. tax refund of per- at 4.9867 her interest cent, 1 of the United using Unisex Table Although the chal We reverse. 1959-61, published by Tables: States distinguish did be lenged IRS Life States known as the United then what was females, clas males and tween Health, and Wel- Education Department of substantially related to sification was the value fell below fare. Because pro objective of important governmental cutoff, paid estate statutory percent in estate taxes moting equity and fairness corpus. reversionary inter- no tax on the trust accurately valuing Are situated regulations in A. men and Treasury effect at the differently women treated because death, however, re- time of Charlotte’s gender? quired the value of classification computed according in a trust to be government argues the IRS tables. See Treas. practice does men treat and women 20.2031-7(a), 20.2031-10(d), (e), (f), differently “[ujnder Reg. percent the 5 §§ rule of section 66-307, estates of 20.2037-l(c)(3); dece- Rev.Rul. 1966-2 includable, dents of both sexes Using gender-based tables, Cum.Bull. 429. trusts established for benefit of mem- value of the calculated the reversion- IRS bers of both key sexes are taxable. The percent ary interest at 6.654 assessed grantor’s grantee’s sex, not the aggregate deficiency, the estate grantor’s in- $458,662.98. additions, plus terest.” and, paid deficiency The estate after argument unconvincing. While it *4 claim for a an administrative refund was is true that of both estates male and fe- denied, suit. filed this refund The district male decédents are includable under the estate’s granted court the motion for sum rule, may and that trusts be taxed whether (S.D.N.Y. F.Supp. 837 mary judgment, 576 women, their men beneficiaries are or 1983), holding gender-based that use of nevertheless, government what the calls mortality equal protec the tables violated “key” the of section 2037—the value of the the fifth component tion amendment. grantor’s reversionary interest —is deter- appeal This followed. mined calculations treat
situated men and
differently.
women
As a
result
the amount of the estate tax will
Discussion
depend upon
sometimes
whether the dece-
“Statutory
classifications
distin-
dent or
male
beneficiary is
or female. This
guish
and
between males
females are ‘sub-
following
comes
way.
about
ject
scrutiny
Equal
under
Protection
purposes
tax,
For
of the estate
the value
”
Boren,
Craig
Clause.’
grantor’s reversionary
interest
in a
(1976)
50
S.Ct.
requires calculating
trust
the probability
Reed,
Reed v.
(quoting
71, 75,
U.S.
person
age
grantor,
that a
at
251, 253,
(1971)).
S.Ct.
“To just prior
death,
would outlive the
* * *
challenge
withstand constitutional
figures
beneficiary.
trust’s
on life ex-
by gender
impor-
classifications
must serve
pectancies come
standard mortality
from
governmental
tant
objectives and must be
tables,
gender-based
and
tables reflect the
substantially
related
achievement of
that,
undisputed
average,
fact
on the
wom-
objectives.” Craig
Boren,
these
longer
every age.
en live
than men
at 456. In the
statistical
fact then affects
calculation
first,
government argues,
case the
that the
of a
ways.
interest
two
challenged statutory scheme does not treat
First,
gender-based
when
tables
are
second,
men
differently,
and women
used,
the likelihood that a female trust
statutory
that even if the
scheme does
beneficiary
great-
settlor will outlive her
treat
differently,
men and women
the dif-
er than the likelihood that a male trust
justified
ferences in
are
treatment
and not
in similar circumstances will outlive
settlor
arguments support-
invidious. We find the
(Similar circumstances,
beneficiary.
his
ing
point
unpersuasive,
first
be
present purposes,
when
occur
the male
point
agree
on the second
we
with the
beneficiary
age
trust settlor’s
is the same
government
nothing
that there is
invidious
female trust
as the
settlor’s
unjustified
way
particular
this
Therefore,
beneficiary.)
gender-
when
statutory scheme makes use of distinctions
calculating
tables are used
tax,
between men
estate
the fact
the decedent
and women.
of the rever- male decedent and
increase the value
with female de-
female will
6.654%
cedent).
over what that value would
sionary interest
The table also shows that if How-
male,
were male.
if the decedent
been female
be
ard had
instead of
trust would not have
been included
using gender-based
A
effect
second
taxable estate because the value of the
played by
role
comes from the
tables
reversionary interest would have been
beneficiary.
When
expectancy
percent
corpus.
3.520
of the trust
used,
are
gender-based
tables
beneficiary will
likelihood that a female
therefore,
apparent,
It is
that under the
greater than the
her trust settlor is
outlive
using
IRS
mortali-
beneficiary in
likelihood that a male
similar
tables,
ty
similarly situated men and wom-
will outlive his trust settlor.
circumstances
differently
way
en are treated
in a
(Similar circumstances occur here when the may
taxpayer’s
affect the
ultimate tax bur-
beneficiary’s trust settlor is the same
male
den. This constitutes discrimination based
beneficiary’s
as the female
gender.
settlor).
When
conclusion,
arguing against
therefore,
used,
the fact that
bene-
government
challenged reg-
claims that the
ficiary is female will decrease the value
ulations do not discriminate because “the
from
it
what
estate,
tax here is assessed
male.
if the
were
legal
separate
fiction that is
and distinct
possible that
in certain
It is therefore
any gen-
the decedent
and that lacks
the sex of the decedent or of
circumstances
* *
der.
It is a tax not on an individual
*5
beneficiary will determine whether or
the
However, the mere fact that the taxed enti-
not the value of the
interest
impossible
ty is an estate does not make it
percent
corpus
exceeds the 5
of the trust
against
for that tax to discriminate
men or
requires the trust
to be included as
represents
legal
women. The estate
part
estate. The ef-
of the
taxable
interests of the decedent and the dece-
using gender-based
is illus-
fect of
beneficiaries,
may
dent’s
who
be individual
table,
following
trated in the
which shows
pays
men
an estate
a
or women. When
calculating
percent
to be used for
tax,
practical impact
there is an obvious
on
of a
interest in a trust
tax,
higher
the beneficiaries:
by person
died at Charlotte’s
created
a
who
to the
less the estate has to distribute
beneficiary
age.
with
Howard’s
impact
There is also an
beneficiaries.
Resulting
Percent
decedent,
since the
the estate
Prom Gender-Based
benefit,
less the decedent can
tax the
Age
Age
Decedent
88 Beneficiary
57_Tables_
estate,
through
she wishes to
thpse
her
Male
6.654
Female
governing
Estates and the laws
benefit.
Male
6.415
Male
channeling
a means of
effects
them are
3.520
Female
Female
individuals,
on estates are
upon
and taxes
Female
3.390
Male
discrimina-
just
capable,
principle,
The table demonstrates that whatever
against
as a tax on
ting
men
women
beneficiary,
sex of the
the value of a rever-
level, there-
individuals. On a substantive
sionary
greater
interest
for a female
fore,
difficulty
challenging
there is no
(6.654%
beneficiary
male
decedent
with
ground
it discrimi-
tax on the
estate
beneficiary) than for a
with female
3.520%
As for
nates
men or women.
(6.415%
decedent
similarly situated male
challenge cannot be
standing, perhaps the
beneficiary
male
for female
3.390%
es-
brought except by an executor of the
beneficiary). Similarly,
the sex
whatever
suing after death has occurred and
tate
decedent,
the value of a
allegedly
controversy concerning the
dis-
beneficiary
a female
is less with
ripened,
there can
criminatory tax has
(3.390%
decedent and
with male
3.520%
type
conten-
that this is the
decedent)
no doubt
than with
with
by an executor.
(6.415%
may be advanced
tion that
male
situated
Alabama,
449,
78 would not
NAACP
be burdened if the
ig-
IRS had
Cf.
(1958);
1163,
gender.
nored
Barrows
Jackson, 346 U.S.
short,
it does not matter that
(1953);
Society
L.Ed. 1586
Pierce v.
challenged practice calculates the rever-
Sisters,
L.Ed.
sionary
greater
percent
interest at
than 5
(1925).
of the trust whether Charlotte was male or
female,
because the
still treats
government
argues
also
men and
differently,
women
basic
challenged regulations
present case the
decision
system
gender
to use a
that takes
cannot be found to discriminate on the ba-
account,
into
rather than one which does
gender
corpus
sis
Char-
not, demonstrably burdens this estate.
have been
lotte’s
includable
the estate even if she had been male. As
B.
gender
Is the
invid-
classification
shows,
given
the table
if Charlotte
above
ious?
had
male the value of her
been
reversion-
Classifications distinguishing be
ary
percent,
interest would have been 6.415
tween males and
justified
females are
un
percent
and since that value is above the 5
der the
if they
constitution
are substantial
cut-off,
statutory
the trust would still have
ly related
important governmental objec
part
included as
been
taxable estate.
Boren,
tives. Craig v.
429 U.S. at
shows,
claims,
government
that in
S.Ct. at 456. This
imposes
test
a lower
this case there is no dissimilar treatment
standard than
scrutiny”
the “strict
test
that could count as discrimination.
race,
used for classifications such as
which
reasoning
here is flawed
two
requires that a classification be “neces
First,
ways.
argument
ignores
sary”
“compelling”
to further a
govern
beneficiary.
classifications
interest,
ment
imposes higher
but it
stan
that affect the estate tax involve Howard
dard than the
rationality
minimal
test tradi
as well as
If
Charlotte.
Howard had been
tionally required
legislative
classifica
male,
female instead of
the value of the
involving
tions not
either
or an “in
reversionary interest would have been less
herently suspect” categorization.
Mi
See
*6
percent
taxable,
than 5
and therefore not
chael M.
Superior
v.
Court
Sonoma
regardless of the sex of the decedent. The
464, 468-69,
County, 450 U.S.
101 S.Ct.
injury
estate can thus claim
because of the
1200, 1204,
(1981);
The second flaw in the
ar-
gument
ignores
consequence
is that it
Contrary
government’s
position,
using
this case of the
IRS
apply
we do not
rationality
minimal
gender-based mortality tables instead of
just
standard
because the case involves
gender-neutral
gender-neutral
tables.
If a
support
federal estate taxation. To
its
table were used to calculate the value of
claim that the standard should be one of
Charlotte’s reversionary interest her estate
rationality,
government
minimal
cites
pay
not have to
the contested tax.
primarily equal protection challenges to tax
For a
age
decedent
88 and a
regulations that
did not involve
dis-
57,
the value of a decedent’s reversion-
Regan
crimination. E.g.,
v. Taxation with
ary interest,
by gender-neutral
calculated
540,
Representation, 461
103
U.S.
S.Ct.
tables,
percent
would be 4.9867
of the trust
1997,
(1983);
Madden v.
corpus no matter what the sex of the dece-
83,
406,
Kentucky, 309 U.S.
60 S.Ct.
84
Thus,
dent or beneficiary.
(1940);
basic IRS L.Ed. 590
Burke Mountain Acade-
(2d
decision to treat men and
States,
women different- my, Inc. v. United
465
by Kahn v.
enjoyment
at or after
transfer-
sion
persuaded
we
[the
Neither are
1734,
Shevin,
351,
40
94 S.Ct.
in the transfer-
416 U.S.
death” was includable
or’s]
(1974),
accept
govern-
189
gross
L.Ed.2d
or’s
estate.
Internal Revenue Code
correct standard
position on the
202(b),
463,
ment’s
1916,
ch.
39 Stat. 778
§
equal protection
Kahn involved
review.
(1916). This rule was taken to its extreme
giving
property
a state law
challenge to
Commissioner, 335
Spiegel
in Estate
v.
not to widow-
exemption to widows but
tax
(1949),
U.S.
69 S.Ct.
claims that
its
find no fault with
ob
Since we
accuracy in valu-
interests,
challenged practice, its consti
and that
jective
ing
practice
equity and
accuracy promotes
tutionality turns on whether
increased
objective.
tax burdens. We
imposing
to that
“substantially
fairness
related”
important governmen-
this is an
agree that
test for deter
is no mechanical
While there
us
record before
objective, and the
tal
satisfies
or not a
mining whether
the chal-
to doubt
presents
test,
no reason
law
relationship
case
the substantial
actually
adopted
was
lenged practice
partic
least four
clear that at
make it
does
objective,
promoting that
intention of
explored
and
matters must
be
ular
to discriminate
and without
intent
class; (2)
(1)
impact on
aggregate
weighed:
either men or women.
(3) stereotyped
demeaning generalizations;
(4)
of statis
use
and
flawed
assumptions;
tax was first
federal estate
When the
four factors
of these
Consideration
tics.
subject
to a
property
enacted in
all
there is
us that
case convinces
posses-
to take effect
transfer “intended
nothing invidious about the IRS’s use of
greater
interest will be
gender-based mortality
purposes
tables for
when the decedent is female than when the
2037(a).
male,
decedent is
both in the case where
§
beneficiary
is male and in the case
Aggregate impact
on class.
beneficiary
where the
is female. This
shows that at least one
directly
subclass of
deciding
In
whether the substantial
affected women—female
may
satisfied,
relationship test is
it is relevant
decedents—
special way by
burdened
a
the IRS
disadvantages
whether the classification
all
practice. But it does not show that
sex,
particular
members of a
or whether it
class of women as a
any
whole is burdened
and
distributes benefits
burdens to both
differently
men,
from the class of
equally.
Aiello,
Geduldig
sexes
female
only
decedents are not the
women
2485, L.Ed.2d 256
directly
by
affected
practice.
the IRS
Fe-
(1974),
Supreme
rejected
Court
a claim
male beneficiaries are
directly
also
affect-
gender
discrimination because the class
ed,
practice actually
and the IRS
benefits
benefitting
challenged
of those
from the
them, in comparison
similarly
situated
men,
statute included
women
both
so
men. The value of the
inter-
fiscal and actuarial
benefits
“[t]he
est when the
is female is al-
[challenged] program
thus accrue to
ways lower than the value when the benefi-
members
both sexes”.
Id. at 496-97 n.
male,
ciary is
as the table set out earlier
20,
467 challenged practice. The advantage from the classifications themselves often dis- courage experimentation rejected Wengler, very of with so- the law The effects therefore, prove tax cial roles are the effects of the that would the traditional unlike assumptions wrong. us. As de- issue in the case now before with at law meaning generalizations, however, this direct benefits A law which distributes classic kind of discrimination is not at issue might men and women and burdens both present in the case. troubling if that were still be distribution unduly- equal, so one sex would be not 4. Flawed use statistics. expense at the of the other. In the favored case, however, present simply there no Satisfying the relation substantial inequality, there is of such since ship prove evidence test will difficult the extent challenged nothing to show either that the classification on is based practice places greater aggregate a generalizations IRS statistical that are unrelia ble, tax the class all women only correlations, estate burden on that show weak or men, it of all or that ways. than on class are in other Craig flawed In v. greater 190, places aggregate Boren, 451, burden on 429 97 U.S. S.Ct. for ex on the all ample, shortcomings of all men than class of required statistics women. the invalidation of an Oklahoma law which prohibited percent men from drinking 3.2 Demeaning generalizations.
2.
21,
age
until the
beer
which allowed
percent
age
women to drink 3.2
18.
beer at
or benefits which
Distribution
burdens
in support
The statistics offered
might
objec-
appear equal
still be
otherwise
difference
treatment of men and women
they are based on classifi-
tionable because
percent
showed that
.18
of females
social
ability
which demean
or
cations
years
18
old
who were
to 20
were arrested
legislature
men or
A
status of
of women.
driving offenses,
for alcohol-related
where
generaliza-
free to
overbroad
“is not
make
*
* *
percent
2
males
to 20 were
18
which demean
tions based
sex
201,
at
97
arrested
those offenses.
Id.
or
affected
ability
social status
survey
at 458-9. A roadside random
S.Ct.
347,
Hughes,
class.” Parham v.
also found a
alcohol concentration
blood
1747,
354,
1742,
60
269
99 S.Ct.
L.Ed.2d
greater
percent
percent
than .01
14.6
(1979). However,
not
this is
a concern
of females.
Id. at
percent
males and 11.5
case.
16,
at 460 n. 16.
203 n.
97 S.Ct.
defense,
Stereotyped assumptions.
Supreme
rejected
Court
state’s
percent
of 2
be-
holding that
correlation
Under the
Court decisions
driving
con-
drinking and
“must be
tween
early
1970’s which first established
202,
”,
at
unduly
tenuous ‘fit’
id.
sidered
part
gender discrimination as a
constitu
459,
sur-
and that
roadside
97 S.Ct.
law,
Reed,
71,
see
404
92
tional
Reed v.
U.S.
vey disparities
sexes were
between
251,
(1971);
30
S.Ct.
L.Ed.2d 225
Frontiero
16,
203 n.
97 S.Ct.
substantial.
Id. at
Richardson,
677,
1764,
U.S.
n. 16.
(1973); Weinberger
v. Weis
gender-
significance of
contesting
enfeld,
statistics,
in the
appellee
(1975);
Stanton
Stan
that,
to the
ton,
points
case
fact
43 L.Ed.2d
at ran-
(1975),
group of males and females chosen
significant
it
if the
dom,
all the
stereotyped
or
more than
based on
classification
deaths of
matched
about
roles.
deaths could be
assumptions
social
traditional
Bergman &
age.
See
“naturally” males of
same
or men
Arguments that women
Benefits,
Gray, Equality in Retirement
towards,
“naturally”
suited
incline
It was
Rights
Fall
at 25.
for,
roles,
Dig.,
are flawed Civ.
“traditional” social
fact,
Judge
apparently, that led
Stew-
self-fulfilling
character.
their
*9
of
say
“only
utory language forbidding
art
in this case
all
to
that
sex
discrimina-
men”,
do
actually
same,
women
outlive
576 tion and race discrimination is the
842,
conclude, therefore,
and
F.Supp.
except
at
for a few
in
differences
defenses
gender-based mortality
that
tables could
separate
pregnancy.
section on
not be used because their use results
constitution, however, imposes only
in-
an
against
discrimination
those who do not fit
scrutiny
termediate level of
for sex discrim-
reasoning
norm.
ination,
statistical
His
requiring
while
that race discrimi-
equal protection component
that the
of
subject
scrutiny.
nation be
to strict
Mi-
fifth amendment is concerned with individ-
Superior
M.
chael
v.
Court
Sonoma
of
rights,
ual
who do
fit a
that those
not
464, 468-69,
County,
statistical norm
on
not
1200,
should
1204,
(1981). Proving
Title VII.” Id. age, there- man the same and that she reasoning Manhart, expectation larg- receiving how fore had an ever, aggregate dispositive is not of the issue in the er benefits over the course of First, pension years. case for three Title case the reasons. her using gender-based VII’s standard not the is not statistics to same the stan IRS equal protection dard settlor has an component set establish that individual outliving gives expectation of the fifth Title VII his her amendment. actual tax beneficiary. sex discrimination the same level of scruti When the estate becomes ny discrimination; already In a gives it to race the stat- an issue dead. the settlor *10 moreover, cases, accuracy gender-based the actu- increased great number tables just constitutionally justifies trust expectancy of the settlor their use. al life The Indeed, challenged practice comparative to zero. prior to death will be close distributes women, men concerned benefits to both and and if tax code were with dis- comparative individual reversion- tributes burdens to both market value of men actual showing and There has as measured individu- women. been no ary interests situation, any disparate impact on rather a theo- the class of women al’s actual whole, by some as a or on the of men as value as measured statisti- retical whole. The do not average, then the classifications demean cal they gender, in a either are not rarely be included decedent’s based on stereotyped assumptions gross estate. about social might roles men or women choose. Final- concerned, fact, tax with The estate is ly, valuing reversionary the method of in- something goal The of the es- different. focuses, purposes terests tax con- with a fair accu- tax in this matter is tate legitimacy, averages, stitutional on kind special determination of a of aver- rate gender-based mortality provide tables do interests. Con- age value averages. more nothing accurate We find through regula- and the gress, its statutes challenged practice. in the unconstitutional them, has implementing determined tions way valuing reversionary We therefore reverse. a fair death use after decedent’s is to interests NEWMAN, average expectancies life of settlors Judge, JON O. Circuit dis- reject to indi- It chose senting:
and beneficiaries. determinations, and in- aimed vidualized appeal presents apparently novel making fair across the tax burden stead equal protection gender issue in the area We groups of settlors and beneficiaries. is discrimination. issue whether say that to look aver- this choice cannot mortality use of tables val- rather than to individual situations ages, ue estate interests for tax actual market for individual rever- to some equal female purposes denies decedents interests, sionary illegitimate. protection laws. The Government statistical “fit” that matters in this gender-distinct uphold seeks to use case, then, averages. accuracy In this grounds: The tables do not tables on two and, has special situation there been a where on the basis of discriminate do, choice value in terms legitimate they to define is not even if discrimination average majori- expectancies, agree rather than I unconstitutional. reasons, approxima- ty, terms of the best individualized that the though for different respect- particular person’s unavailing, actual life ex- I argument tion of first I pectancy, great fully there is a deal said that the dissent because conclude using gender-based be- also Both conten- argument tables second fails. do, fact, they give more cause accurate merit extended discussion. tions averages gen- of life than do expectancies tables. Our conclusion is that der-neutral I. the same kind of
this case does Is There Gender Discrimination? unjustified discrimination danger found in there has as was Man- contends that against individuals Government against use of more The estate tax’s hart. been no aspects averages There are two accurate decedent. First, individuals. the Government not discriminate this contention. does if the had been a points decedent out male, been liable Conclusion would still have her estate Second, corpus. upon for tax special of circumstances set Given a trust is argues that whether ease, think the Government in this we depends indudable in a decedent’s estate A. The on the decedent. The effect a variety of factors —the present value of the decedent’s reversion- *11 death, of decedent at the the benefi- ary prior interest in the just trust her death, ciary gender at the of death, the decedent’s gender-dis- calculated on the of basis decedent, gender the of the and benefi- tables, tinct mortality was of the 6.654% ciary. Recognizing that there is “some corpus. trust If the decedent had been a data,” on reliance male-female male, present value of the the Government maintains that there is “no interest, calculated in the way, same groups of on disparate treatment the basis have been of the corpus. 6.415% trust The of that data” “no classification cre- and argues Government per- that since both groups solely identifiable ation sex.” centages greater are than the threshold 5% for Appellant Brief at 15. figure at a corpus which trust is includable estate, gross in the decedent’s considering specific argu- Before there has these ments, gender no acknowledge agreement I been my with a Wallace; premise basic that underlies of Charlotte her trust each was not in- government practice them—a does con- cluded in her not estate because of her gender stitute bur- gender. discrimination unless it a solely dens class identified on the basis argument That premise carries the gender. premise That the core beyond Geduldig legitimate far scope. its in Geduldig decision Court’s thing It is one to say, as the Court did in Aiello, 484, 2485, 41 v. 417 U.S. 94 S.Ct. Geduldig, practice a gen- that constitutes a (1974), rejecting gender-dis- L.Ed.2d a 256 der-based discrimination when it disad- challenge crimination to a state’s exclusion vantages a solely class identified on the pregnancy coverage under a dis- gender. basis of It quite thing another ability program: insurance say, urges here, the Government The identity lack of ex- between the challenged practice a does not disadvan- disability cluded as such un- tage a solely class identified on the basis of program der this insurance becomes gender class, some members of the upon cursory analysis. clear the most including decedent, not sufficiently program potential recipients divides disadvantaged to suffer adverse conse- into two groups pregnant women and — precise quences at the level at which the nonpregnant persons. While the first Government has elected attach con- such female, group is exclusively the second sequences. cases, some absence includes members of both sexes. The consequences adverse may standing defeat pro- fiscal and actuarial benefits of the a particular plaintiff, but it does gram thus accrue to members of both show absence of a dis- (cid:127) sexes. example, government crimination. if a For 20,
Id. at 496-97 n. 94 S.Ct. 2492 n. employer points awarded five extra to all Feeney, See Personnel Administrator males who took civil service examination 256, 271-74, 2282, 99 2291- S.Ct. persons passed, hired all who (1979); 60 L.Ed.2d Parham v. would be a discrimi- 347, 352-57, Hughes, 441 U.S. against females, regardless nation of what (1979). Successful the employer passing score selected as a protection equal challenges grade. practices discrimination have involved challenged practice in this case—use burdened a solely by gen class identified gender-distinct mortality pro- E.g., der. Mississippi University tables— disadvantage duces to a identified Hogan, Women (1982); solely gender: on the The rever- L.Ed.2d 1090 basis Craig v. Boren, 1742, 1746-48, sionary every female decedent (1976). higher valued inter- reflecting tality tables this statistical fact male.1 Since every similarly situated est of conflicting upon the rever- has effects calculation of the in- interest, value of likely more sionary following circum- terest because in the decedent’s be included will trust taxed, ages consequent life ex- the exist- stances. and therefore gross estate pectancies of the decedent and the not defeat both dividing line does ence of beneficiary affect that value. Whatever gender-based discrimination. claim of predicted expectancy case increases standing defeated Nor is use, the trust settlor increases the likelihood that, gender-distinct tables fact beneficiary; in- that the settlor will outlive would have been *12 the decedent’s hand, whatever increases the if she had on the other gross estate even cluded her beneficiary predicted expectancy life of the presenting male. Her executor been the likelihoodthat the settlor will has violated decreases that the Government the claim beneficiary. ta- using outlive the Gender-based requirements by equal protection yield higher expectancies for fe- of a bles mortality tables instead gender-distinct every age. for males at There- trust males than the decedent’s table. Since unisex used, fore, are gross when such tables the female included in her not have been used, gender of the decedent increases the had if unisex table been estate interest, reversionary of the present make this value standing to plainly has executor the beneficiary but the female claim. present decreases the value of that inter- the class B. The on female effect est. the use Determining whether decedents. gen- complicated The situation is further is a gender-distinct compares one the outcome under against the class when discrimination der-based gender-based tables with the outcome un- complicated female decedents der a unisex Female decedents with calculating present value table. for formula have The male beneficiaries of their trusts will interest. of a decedent’s higher interests valued proba- their for calculation of the formula calls gender-based tables than under a age of the dece- under bility person that a at the likely more dent, death, table and thus will be will outlive the unisex just prior to included in their es- The have the trusts beneficiary decedent’s trust. However, female decedents with reversionary interest tates. present fe- of their trusts will nor- expectancies male beneficiaries a function of the life is thus reversionary interests val- mally have their the decedent and the both gender-based tables than ued lower under trust, of their estimated on basis and thus will be less a unisex table death. under ages just prior to the decedent’s included their likely to have the trusts as a Though undisputed it is that women contends gross estates.2 Government longer than men average live on the undercuts assortment of results3 class, mor- that this gender-distinct as a the use of case, variety possible results illustrated 3. The purposes a male and a female 1. For of this table, following percent shows the they which are the situated if decedent calculating present value of a trusts be used for age of their same and the beneficiaries by a a trust created gender. interest of age and are of the same age person at Charlotte’s bene- who died infrequent where the bene- In those instances age: ficiary at Howard’s (and ficiary both are is older than the decedent Resulting From female), reversionary interest of the dece- Percent Tables Gender-Distinct a unisex table dent will be valued lower under Decedent_Beneficiary gender-based tables. For an older under aged aged 57 6.654% 88 Male Female beneficiary, table the switch to a unisex female aged aged 6.415% 88 Male Male expectancy yields in the life a lesser reduction decedent, thereby younger aged decreas- aged of a 3.520% 88 Female Female person the dece- ing aged that a aged the likelihood 3.390% Female Male beneficiary. survived the dent's would have regulations the claim that the IRS discrimi- ated non-members of the class. Decisions gender. nate on the basis of Court implicitly have adopted view, though even precise It is clear that female decedents are not choice we face was not explicitly posed. In uniformly worse off when ta- Wengler v. Druggists Mutual Insurance bles are used than when a unisex table is Co., calculating used for value of a (1980), instance, the Court However, reversionary interest. it is also invalidated equal protection on grounds a true that the value of the rever- Missouri law that denied a widower sionary decedent, work- every interest of calculat- compensation ers’ death gender-distinct tables, ed benefits on his under is always death, work-related when the decedent is a unless he female than either wife’s was mentally physically when the or incapacitated decedent is a male. These two require issue, proved dependence facts consideration of earnings, his wife’s rarely presented cases, granted a widow death benefits with- pertinent comparison whether the equal having out her prove dependence on her protection purposes is between the treat- husband’s earnings. The recognized Court challenged ment of a class under the prac- that “the statute discriminates both tice and the treatment that class under a men and women.” Id. 100 S.Ct. at *13 practice, neutral or between the treatment It against discriminated widowers challenged of a class under similarly vis-a-vis situated widows and dis- the treatment of all similarly others situ- criminated wage female earners challenged ated under practice. similarly vis-a-vis situated wage male earn- normally issue does not arise discrimina- ers. The Court reject did not equal tion cases gender-based practice because a protection claim simply because under the disadvantages compared women to law, discriminatory (widows) some women usually men disadvantage will also women fared earners) better while others (wage compared they to how would fare under a fared worse than they would have fared neutral rule.4 gender-neutral under a law. The relevant inquiry was how women compared Once fared analytical clearly issue is focus, similarly situated men. its resolution is clear. See also purposes For Califano equal protection Goldfarb, 199, 208, analysis, 430 U.S. pertinent inquiry in determining (1977); 51 whether discrimi- L.Ed.2d 270 Wein- nation exists is pro- berger Wiesenfeld, whether members of 651-53, tected class are disadvantaged by 1225, 1234-35, the chal- 95 S.Ct.
lenged practice compared
similarly
(1975).
situ-
Male
Female
Male
Female
for a female
decedent
cedent
3.390%).
percentage
the text. Under
value
(3.520%
Decedent
female than when the
aged
aged
aged
aged
present
percentage
table
(6.654%
[88]
versus
[88]
than for a
Under such
illustrates the
Female
Female
Male
Male
always
decedent with a male
Beneficiara
6.654%;
versus
aged
aged
is
percentage
aged
aged
always higher
lower when the
[57]
tables,
6.415%;
3.390% versus
Percent
comparisons
beneficiary
tables,
situated male de-
Unisex Table
3.520% versus
always higher
4.9867%
4.9867%
Resulting
4.9867%
4.9867%
present
for a female
beneficiary
6.415%).
noted in
is male
present
value
From
4. This
based effects are
pending
beneficiaries are of
cy
tend
two
death,
the effects of the
the life
enter the calculation of the
gender-based tables than under a unisex table
ue
dent with a
(3.520%
table
under
percentage
different,
persons
(6.654%
case is
gender-based
cancel each other
expectancy
versus
on the combination of
beneficiary,
again
younger
the effects are
versus
distinctive,
involved. When decedents and
is
4.9867%).
always
augmented
gender-based mortality
the same
estimating
of the
tables than under a unisex
4.9867%).
and because
twice —once
female
lower for a female dece-
out;
if not
decedent,
present
amplified.
gender,
beneficiary
when the
the life
unique,
diminished de-
genders
those
value of the
present
just
the effects
estimating
expectan-
genders
gender-
before
under
tables
val-
gender-distinct
Since the use of
tables
The Government contends that the “im-
present
portant governmental
causes the
value of the reversion-
objective” it seeks to
promote
ary
by
gender-distinct
interests of all female decedents to be
the use of
mor-
tality tables
accuracy
than the
is actuarial
value of the rever-
in valuing
reversionary interests of
sionary interests of all
decedents’
similarly situated
trusts.
It is the achievement of
objective
male decedents and therefore
increases the
gender-distinct
which the use of
likelihood that the trusts created
must
“substantially
be
related.” Since
decedents will be included in their
class,
longer
women
men,”
live
“[a]s
taxed,
consequently
estates and
the use of
Angeles Department
Los
Water & Pow-
these tables is a discrimination
Manhart,
702, 704,
er v.
gender. Whether that discrimination is un-
1370, 1373,
(1978),
55 there is a
constitutional
Equal
under the
Protection
plausibility
surface
to the Government’s
issue,
Clause is a different
to which I now
contention that
gender-distinct
use of
ta-
turn.
bles is sufficiently related to
objective
promoting
actuarial accuracy to justify
II.
discrimination inherent in
Analysis
such use.
of the Government’s
Is the Discrimination Unconstitutional?
contention, however, demonstrates that the
To
challenge
withstand constitutional
un-
requisite justification
using
gender-dis-
equal protection
der the
component of ei-
tinct
tables is not
in the limited
Amendments,
ther the Fifth or Fourteenth
context
illustrated
litigation
—the
regulations that discriminate on the basis
valuation of the reversionary interest of a
must
“substantially
related”
decedent’s trust.
*14
promotion
“important
to the
governmen-
place,
In the first
it should be noted that
objectives.”
Boren,
tal
Craig v.
supra,
the
gender-distinct
valuation for which
ta-
197,
pends on how the estate tax attributable among corpus allocated all
persons property who would benefit from estate, male, may the taxable who CHEMICAL ALLIED INTERNATIONAL female, or neuter the case of charities. CORP., Plaintiff-Appellee, The second life tenant benefits from the corpus non-inclusion dece- in the dent’s taxable estate in those circum- DE COMPANHIA NAVEGACAO corpus stances where the trust have BRASILEIRO, LLOYD portion borne all or a of the estate taxes Defendant-Appellant. thereby be said saved. most that can No. Docket 85-7103. changing succes- Appeals, States United Court of sor life tenant from male Second Circuit. possibility tends to reduce the of an corpus, estate tax on the value of the trust Argued 8,May consequence that will all bene- benefit *17 Decided Oct. ficiaries of the estate whose interests have borne taxes that are saved and, circumstances, in some will benefit
successor life tenant of But the trust.