Peters v. NarickPeters v. Narick
- Reporters:
- , ,
- Before:
- McGraw
McGRAW, Justice.
In this proceeding instituted pursuant to the provisions of
In a proper case, prohibition lies to test the constitutionality of an act of the Legislature, under Code 53-1-1 which provides that prohibition lies “as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.” Syl. pt. 1, Morris v. Sevy, 129 W.Va. 331, 40 S.E.2d 874 (1946); Syl. pt. 1, Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331 (1938).
The language of
We begin by noting this statute is not shielded from this equal protection challenge because facially it discriminates against men rather than women. It has been established in other gender-discrimination cases brought by or on behalf of men that statutes such as the one in question discriminate against both men and women. E.g., Wengler v. Druggists Medical Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Therefore, it is unnecessary to inquire whether the statute is intended to benefit or burden women, because the same standard of review applies. Wengler, supra. The reasoning underlying this approach is that any gender-based classification stigmatizes women, even one which is apparently directed against men only. Gender-based classifications can constitute legally sanctioned second class citizenship and must pass constitutional review even if the classification was originally envisioned as a benefit to one gender.2
I. The Federal Constitutional Question
In the last decade, gender-based legislative classifications have become the subject of an ever-increasing number of legal challenges.3 The United States Supreme Court has struggled with such challenges in a long line of cases which reached a culmination of sorts with the decision in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). Orr presented the question of the constitutionality of Alabama‘s alimony statutes which provided that husbands, but not wives, may be required to pay alimony upon divorce. It had been established by the Court‘s prior holdings on the subject of gender-based legislative classifications that the Alabama statutes created a classification subject to scrutiny under the Equal Protection Clause,4 and that the classification was not shielded from scrutiny because it facially discriminated against men rather than women.5 To test the statute‘s constitutionality the Court applied the test first enunciated in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). To withstand scrutiny under the Equal Protection Clause “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”6 429 U.S. at 197, 97 S.Ct. at 457, 50 L.Ed.2d at 407. The Court considered several governmental objectives that might be offered to uphold the validity of the gender-based classification. They concluded the statute could not be sustained if its purpose was to legislatively reinforce a family model in which the wife plays a dependent role.7 The Court also concluded
The Court also considered whether the statute could be sustained if its purpose was viewed as attempting to compensate women for a long history of discrimination and economic disadvantage. Conceding this was a legitimate purpose,9 the Court concluded the statute actually produced perverse results by giving advantage only to the financially secure wife by relieving her of the burden of paying alimony to a dependent husband. Thus, wives benefiting from the statutory scheme were those who were not dependent on their husbands and, therefore, were the least likely to have been victims of past discrimination. Once again, the Court concluded that while the purpose was legitimate and important, the classification by gender was not substantially related to its achievement. “Where, as here, the State‘s compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex.” Orr v. Orr, 440 U.S. 268, 283, 99 S.Ct. 1102, 1113, 59 L.Ed.2d 306, 321. Upon this analysis the Court held: “[t]he Alabama statutory scheme of imposing alimony obligations on husbands but not wives violates the Equal Protection Clause of the Fourteenth Amendment.”
We conclude this holding controls the disposition of petitioner‘s federal claim. The West Virginia Separate Maintenance Statute accords the right to seek separate maintenance only to the wife, and in this regard suffers from the same fatal defect as the Alabama alimony statutes, and as did the Alabama statutes, it fails the middle-tier or important governmental objective test. We hold
II. The State Constitutional Question
Petitioner contends
Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) marked one of the earliest attempts to come to grips with gender-based classifications. Reed is cited for the proposition that classifications by gender are subject to scrutiny under the Equal Protection Clause.
In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), a majority concurred in a judgment that a United States Code provision containing a gender-based classification was a denial of due process under the
In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), the Court invalidated certain gender-based classifications contained in the Social Security Act as being violative of the Fifth Amendment. While citing Frontiero and Reed, the Court, without expressly saying so, applied the rational relationship test but ignored the question of whether classifications by gender were inherently suspect.
Then, in the case of Craig v. Boren, supra,15 the Court for the first time enunciated the middle-tier approach. “To withstand constitutional challenged, . . . classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.” 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 406. The Court applied this new test in Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), and with the Orr decision fully legitimized it.
We are unimpressed with the lineage of the middle-tier approach which we believe, as Justice Powell so candidly pointed out,16 is largely the product of “result oriented” decision-making. We find more merit in the position of the plurality in Frontiero, supra, that classifications by gender are suspect. Prior to Craig v. Boren, supra, Federal District Courts also found this reasoning to be persuasive,17 and state courts in Massachusetts, New York and Nevada have held that classifications by gender are
The first mention of the concept that eventually evolved into the compelling interest test for suspect classifications appears in United States v. Carolene Products Company, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). In footnote 4 of that opinion the Court indicated certain types of legislative classifications affecting minorities might be subject to “more searching judicial inquiry.”
The notion that these certain types of classifications might be considered suspect was first enunciated in 1944. “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.... [This] is to say that courts must subject them to the most rigid scrutiny.” Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194, 199 (1944).
Because the Court‘s decision-making in this area has been result-oriented, the Court has of necessity avoided a forthright and specific expression of those factors which mark a suspect class. We can, however, look at the results of these cases which have held classifications based upon race,20 alienage,21 national origin,22 and poverty23 to be inherently suspect, and from these results we can extrapolate certain criteria indicative of the suspect classification.
Classifications based upon a characteristic that is permanent, immutable, or a condition of birth have been held to be suspect. Korematsu, supra. Likewise, a history of past discrimination and political powerlessness is significant of suspectness. San Antonio School District v. Rodriguez, supra. Although it has been inferred that the large size and imprecise nature of a classification may be factors negating suspect status,24 size alone will not preclude suspectness.25
It is readily apparent that gender, like other classifications previously designated as suspect, possesses certain of these indicia of suspectness. Gender is biologically permanent. It is an obvious and easily recognizable characteristic which, like race, can carry with it a stigma of inferiority. Sail‘er Inn, Inc. v. Kirby, 5 Cal.3d 1, 485 P.2d 529, 95 Cal.Rptr. 329 (1971). Since gender, like race and national origin is, practically speaking, immutable, the imposition of special disabilities upon members of a particular gender violates “the basic concept of our system that legal burdens should bear some relationship to individual responsibility.” Weber v. Aetna Casualty and Surety Company, 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768, 779 (1972). Classifications based on factors that bear no relationship to ability to perform, such as classifications based upon gender, have the effect of relegating the entire class to inferior legal status
Among the various indicia of suspectness the one deserving of the most emphasis is a history of past discrimination. Classifications by gender fit this historical pattern well and women have been the victims. Women have long labored under a comprehensive legal and social system where it is difficult to separate the written and unwritten rules. Virtually the whole weight of male-dominated, male-written history seems to buttress a system that, until not so long ago, denied women the right to vote, to serve on juries, to secure credit, to own and deal with property, to sue and be sued, to make contracts, and even to refuse sex in marriage. One cannot begin to assess the crushing and nocuous effects of this system upon the personal, social and economic potential of countless women. It has created a debt that can never be repaid, only forgiven. The system‘s all-encompassing nature is evidenced by the very fact that until relatively recently not even women themselves in any significant numbers questioned the “rightness” of the scheme which assigned to all women this benignly protective but unquestionably inferior status. These sexist attitudes made sacrosanct by the legal structure have been so firmly planted in our national belief that no institution has been free from their taint.26 This long-standing and comprehensive system of discriminatory laws directed toward women should compel the strictest possible judicial scrutiny of its remaining vestiges.
The conclusion that classifications by gender are suspect is also influenced by the public policy of this State as manifested by recent legislative actions.27 These actions by a co-equal branch of government indicate that without doubt it is the public policy of this State to foster equal opportunity without regard to gender, to eliminate gender-based classifications wherever possible, and to regard such classifications with disfavor. These statements of policy lead us to conclude that in West Virginia any gender-based classification is to be regarded as suspect.
Based upon the foregoing considerations we hold that when gender-based legislative classifications are challenged as denying the right to equal protection guaranteed by
Applying the compelling interest test to
As a practical matter the State is unrepresented in this proceeding and neither the respondent nor the respondent/intervenor advances a compelling State interest to justify this classification. And, while in this void we could speculate as to what State interest is promoted by this classification, such speculation would be vain. After a careful review of the myriad cases which have discussed gender-based classifications in domestic relations statutes, we perceive no compelling State interest in the denial of separate maintenance to all men. Indeed, every indication is that the State‘s interest is entirely compatible with separate maintenance awards to husbands.28 In this regard, the classification embodied in the separate maintenance statute subverts present State policy.
The Statute fails to pass the intense scrutiny demanded under the test we have adopted today. No compelling State interest justifies its gender-based classification. Accordingly, we hold that by establishing a gender-based classification permitting wives but not husbands to seek separate maintenance,
The question now becomes one of the remedies appropriate to the instant case. Petitioner‘s counsel would have us invalidate the statute in its entirety and prohibit any further proceedings pursuant to its authority. Counsel for respondent/intervenor urges as to extend the statute to cover men as well as women by applying it in a gender-neutral fashion.
Where a statute is defective because of under-inclusion 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, 90 S.Ct. 1792, 1807-08, 26 L.Ed.2d 308, 331 (1970).
The approach of extending a statute‘s benefits by neutral application has been employed in several federal cases,29 and at least two state courts have followed it in decisions dealing with statutes substantially identical to
Choosing between invalidation or neutral extension requires an ascertainment of the predominate legislative purpose underlying the statute‘s enactment. Beal v. Beal, 388 A.2d 72 (Me.1978). That is to say, given the nature and substance of the statute, its legislative history, if any, considering it in the context of the larger domestic relations scheme of which it is a part, and considering the relevant economical, social, and historical implications, can it be validly concluded that benefits should be terminated to the class of persons who now benefit by the statute, i. e., women? We believe not. Clearly the legislative purpose embodied in the separate maintenance statute is to provide financial help to the dependent spouse and thereby preserve the economic status of the marriage pending further developments. This purpose would be thwarted by an invalidation of the statute, but by extending the statute‘s benefits to men we conclude the legislative purpose would be effectuated. This approach avoids interference with the numerous cases already decided in lower courts upon the authority of this statute, does not render such judgments voidable and permits the uninterrupted use of this important domestic relations
Accordingly, we hold that
Accordingly, we deny the Writ of Prohibition.
Writ denied.