KING v. SMITH
Legal provision: Aid to Families with Dependent Children (AFDC--provisions of the Social Security Act)
Argument of Mary Lee Stapp
Chief Justice Earl Warren: Number 949, Reuben K. King, Commissioner of the State Department of Pensions and Security of Alabama et al.
Appellants versus Sylvester Smith, individually on behalf of her minor children et al.
Mrs. Stapp, you may proceed with your argument.
Ms Mary Lee Stapp: May it please the Court and Mr. Chief Justice in this honorable Court.
I represent the appellants, Mr. Reuben K. King and the State Board of Pensions and Security which is the host in making Single State Agency in the Department of Alabama responsible for the title for of the Social Security Act, the public assistance title known as Aid to Dependent Children in Alabama and on the national level, Aid to Families With Dependent Children.
We have been designated as a single State agent, said to effectuate the purposes of the Social Security Act.
And we are here on a suit of class action, suit in which the three judge panel starts down to Alabama substitute parent regulation as being violated by the Equal Protection Clause.
The lower court essentially held that the regulation of deprived, needy children of Equal Protection, and we are here to state the validity of the regulation and to show this Court that it is a reasonable classification particularly in the light of the Alabama Program and in the effort we are trying to make in the program.
The facts stated in the opinion by the lower Court are essentially facts that both counsel agree upon, there is -- I will briefly state them.
The plaintiff was the mother of four children who had been receiving a Dependent Children.
The policy, the substitute parent policy, was the plot against her, particularly I would say part two of the policy.
She went into the District Court and eventually secured an hour of which struck down the entire regulation.
We all contend that when one of our main contentions is that the lower Court was incorrect in striking down all aspects of the regulation when only a portion of it are applied to the plaintiff.
We are concerned of the differences and facts that the lower Court stated with our version.
The case worker who terminated the Aid in applying this substitute parent policy against her learned of the relationship between the plaintiff and a person we described as a substitute father but for the purposes of this court, you might think of it in terms of a substitute spouse.
We have a difficult semantic problem sometime with HEW and in trying to arrive at a good way to say things.
We sometimes are misstating the essence of what we want to tell you.
This regulation which was applied against the plaintiff purported to and did describe what we call in Alabama as informal relationships.
And our purpose is to try to place these informal relationships for purposes of public assistance in the same situation as persons who are married.
And the reason is it’s because persons who are married that is needy families do not get Aid in Alabama.
The program is restricted to able bodied persons, who do not have any kind of espouse, for the living in a common law relationship, one that is not recognized by law at all.
The plaintiff in this case considered that the case worker had learned of the relationship from some third party, I believe our version of it is that she had read it from the case record but had known about the relationship at the time when the policy was not in effect or the new case worker who came in.
And therefore went to the plaintiff and asked her about this.
And the plaintiff admitted or stated to the case worker, “Yes this is true.
I do have this relationship which fits part two of the regulation.”
And on that basis Aid was terminated.
Chief Justice Earl Warren: I'm looking at the page 427 of the appendix, at Roman V, isn’t that the regulation we we’re talking about?
Ms Mary Lee Stapp: Yes, it is and that’s mentioned in several places but that is the best place to look on page 427.
Chief Justice Earl Warren: But that’s Roman V, not part—
Ms Mary Lee Stapp: Excuse me.
Let me see that (voice overlap).
Yes it just began to follow the substitute.
Chief Justice Earl Warren: Yes, the child and that was filed up there to the father and mother substitute and Aid, five Aid.
That is on page 427.
Ms Mary Lee Stapp: And this is the best version because it shows you how it relates to the rest of the -- to the program.
Justice Abe Fortas: Was any action instituted against the substitute, whatever it was spouse or whatever?
Ms Mary Lee Stapp: No and we have (voice overlap).
And I think we might as well get this out on the table right now.
There is no duty of support necessarily in the substitute parent regulation.
This is not based on that concept at all.
This is a lesser election on the part of the state to include informal groups.
Sometimes the substitute father the may owe a duty of support to some of the children.
Sometimes he just may be living life -- sort of the stepfather as it were without the benefit of marriage.
Justice Abe Fortas: Well, then what you’re telling us is that the substitute father rule regulation applies even though the substitute father is not the father of any of the dependent children.
Ms Mary Lee Stapp: We stated that in that jurisdiction statement.
And in coming up here, we wanted to make that perfectly clear that it’s based on the informal living situation of the families.
And I would like also get this out on the table while we are talking about it.
Anyway you move in this case, in the classification you are affecting insular minorities, there is no way that (voice overlap).
I believe this Court has described, is it insular minorities?
We are concerned in welfare with persons who are very needy, who have many needs.
And any way we move in the welfare program, we are affecting many people.
And this is because we have a very limited program and we are trying to raise the variance.
I would like to state that the purpose of this policy was to take money that was being used on the broad case load basis and utilize it on a small case load.
And the basis of doing this was to eliminate persons who live in informal living arrangement --
Justice Abe Fortas: Yes ma’am, but our problem is one of equal protection --
Ms Mary Lee Stapp: Yes, that’s right.
Justice Abe Fortas: And therefore a problem of reasonable classification.
Ms Mary Lee Stapp: That is correct.
Justice Abe Fortas: Now, the reason that these dependent children are otherwise eligible for Aid, are not getting the welfare payments as if their mother is having a relationship with a man, period, end of the story, is that right?
Ms Mary Lee Stapp: No, I think it is (voice overlap)
Justice Abe Fortas: It doesn’t matter whether the man is or is not the father of the children.
Is that right?
Ms Mary Lee Stapp: If you are approaching this purely from a duty of support point of view, I can certainly see why you are asking this question.
It is true in many marriage situations that the father also does not support the children.
In the testimony we attempt to elicit the reasonableness of using this as a method.
And you will notice out through the testimony, they kind of direct us -- of being questioned show that many instances in the married families you do not have an actual support coming in.
Justice Abe Fortas: Yes ma’am, but you’re telling us that this father under Alabama Law, this is spouse or—
Ms Mary Lee Stapp: Substitute spouse.
Justice Abe Fortas: This man, let’s call him a man and we’re so -- that this man under Alabama Law has no duty to support these children, is that right?
Ms Mary Lee Stapp: And if you think Social Security Act never permitted states to make these classifications, I think you’re right in asking this question.
Chief Justice Earl Warren: No ma’am, you let me ask a question, and then we’ll see.
This man under Alabama Law has no duty to support the children.
Ms Mary Lee Stapp: May or may not.
In this particular instance, in this particular case that was true.
Chief Justice Earl Warren: The children are dependent children.
Other dependent children are entitled to aid under your program and the federal program.
These children do not receive aid because this man who owes them no duty of support is having a relationship with their mother.
Ms Mary Lee Stapp: I think you had just hit the thing that puts shock and horror in the hearts of everybody who hears it.
I think you have exactly summed up the thing that distresses most people when they --
Chief Justice Earl Warren: I didn’t say I was distressed.
Ms Mary Lee Stapp: Initially.
Initially think in terms in this policy, we consider that the actual ADC grant is a low paying amount to a mother to help her in her primary duty of support, take care of the children.
It is therefore of the nature of the grant we are speaking of that gives rise to the question of why we are here.
Justice Thurgood Marshall: Mrs. Stapp, the money is for the child.
Ms Mary Lee Stapp: I think we would consider, it is to be used for the child and we would certainly hope that if the state and the federal government is going to own this trouble it is going to be used for the child.
Justice Thurgood Marshall: Is there anything under the sun that this child can do in order to qualify for this money?
Ms Mary Lee Stapp: I know of nothing other than the mother herself going to the office and stating --
Justice Thurgood Marshall: There’s nothing that child can do.
Ms Mary Lee Stapp: We know of nothing that the child in this family or the child in the married family can do.
I might point out -- in Alabama the mere fact that the people are married disqualifies the child.
Justice Thurgood Marshall: What I'm saying is the child’s mother who is living alone.
And that child gets aid because the child needs milk.
And next door, there is another child with another mother, but that child’s mother is running around with the man so you’re discriminating those two children.
Ms Mary Lee Stapp: I would say that we maybe discriminating in the long run more against the married mother who has a husband who is not doing to will for a few weeks.
They have no funds and she looks at those and sees the postman.
And this was true before the regulation.
She sees the postman deliver a check to a woman who is living out of wedlock.
And I am speaking here of the first part of the policy which we would say is the true living situation.
She sees him deliver the check to the mother and she does not get a -- because she is married.
Justice Thurgood Marshall: But I can’t see why the child is denied milk.
Ms Mary Lee Stapp: Well I would hope that.
Justice Thurgood Marshall: It was what her mother did.
Ms Mary Lee Stapp: I would hope the mother when she gets a public assistance check does use the check for daycare purposes but there’s no requirement that she do so.
So we usually think of surplus commodities is taking care of their food.
Justice William O. Douglas: Is the child cut off when the mother is an alcoholic?
Ms Mary Lee Stapp: The relationship which simulates the marriage relationship is the only one we are concerned with here.
Justice William O. Douglas: No but I mean under the—
Ms Mary Lee Stapp: No indeed, we’re not concerned—
Justice William O. Douglas: Under Alabama law regulation --
Ms Mary Lee Stapp: No indeed, unless we can make a case to you.
Justice William O. Douglas: I am just worrying how far Alabama takes the releasing of the sins of the mother.
Ms Mary Lee Stapp: If it does not simulate the marriage relationship then I would think that we would not have a classification under deprivation of real support and our theory on it is this, that the relationships that these persons live in simulate the marriage relationship.
And since we do not give aid two able-bodied married persons, we do not think it makes sense for a case worker in interpreting the program to have to not give aid to one and not give aid to the other two.
In other words it should be --
Chief Justice Earl Warren: Mrs. Stapp, I tried translating that in the state interest.
What’s the state interest that justifies--
Ms Mary Lee Stapp: I would say that two or three very important state interest, the main one is the tremendous necessity from the point of view of money in the state program to limit it.
This was true before the ADC freed.
We're not trying to say that it was only the ADC frees that (Inaudible) do us to do this because the (voice overlap)
Justice William O. Douglas: You mean there are more dependent children than there is money to take care of--
Ms Mary Lee Stapp: The low, very low grants that we have been giving for many, many years.
Justice William O. Douglas: And this is the way you say that you--
Ms Mary Lee Stapp: 36% of me you know--
Justice Potter Stewart: This is the way you get more milk to some children by giving none to others.
Ms Mary Lee Stapp: We think it permits a fair classification because we would say --
Justice Potter Stewart: No, as far as the children are concerned, that's what it comes down to isn't it?
You can give more milk to some children by giving none to others.
Ms Mary Lee Stapp: I think you would have to consider in the light of the total program, the fact of the tremendous number of children that are not helped at all.
Justice Potter Stewart: Now what others state interest do you see?
Ms Mary Lee Stapp: The economic interest is the real state interest involved here.
The desire to give what is near 50% of meeting of need.
We're not meeting 100% of our needs, and the--
Justice Potter Stewart: Is that the only justification then?
Ms Mary Lee Stapp: No, I think we've got a much more profound one and I would --
Justice Potter Stewart: And that is?
Ms Mary Lee Stapp: It is the public's problem and what they consider underwriting these persons who live in infallible relationships and putting a financial premium on them.
I think this seriously is what the -- (voice overlap)
Justice Potter Stewart: That's no different than saying that morally this kind of relationship is wrong therefore--
Ms Mary Lee Stapp: I think you have to stick with—
Justice Potter Stewart: Therefore the state can penalize dependent--
Ms Mary Lee Stapp: I think you do have to look at it from the point of view of the public and the tax.
They would separate that from the agency.
I would say there are three very important interests to be considered here.
One is the interest of the state itself in rendering a more responsible program to reduce case loads to give an effective service keeping in mind that we have such a tremendous number of children that are not even beginning to be reached in the program.
The second thing is this great public concern and I think it's much greater than you may realize of underlying situations that are tend to bring about illegitimacy for example.
This is a great one.
Justice Potter Stewart: This is one way I suppose, one way of limiting case loads is to try to prevent--
Ms Mary Lee Stapp: I would point out to you on a bit.
t's a tremendous problem and we do try to mention that all the way during our brief.
Since 1935, we have given case work services to these families coming from the informal living situations.
And I think it can be fairly said on the books and information we give you that we have virtually done nothing to change the behavior if this is what we're supposed to do.
Of the persons caught up in these informal living arrangements.
And therefore it is seemed to many people that it's time for a fresh approach.
I had a great reluctance in coming to this point of view and saying --
Justice Potter Stewart: Well, I gather there are other message though and they're not reaching that (voice overlap)
Ms Mary Lee Stapp: The 1967—
Justice Potter Stewart: What I read everyday (voice overlap), there are other ways of reaching that then by depriving those children who are already here of any milk at all --
Ms Mary Lee Stapp: Well we hope surplus commodities and food stamps are taking care of the food problem.
Our children deprived of this Aid are eligible for that.
This is the money grant to the mother.
And we hope very much that the mother would use it.
We have the same in Alabama that the substitute father is the one that is bringing a way of support to the mother.
And I want to point out that the regulation looks to the future conduit.
It is not concerned with what the mother has done in the past.
It presents to her a choice whether she wants to --
Justice Potter Stewart: Well, I gather your regulation say if they come down and said, “I gather your regulations says if she comes down to the case worker and says, I have smaller amount.
Ms Mary Lee Stapp: That's it.
Justice Potter Stewart: Then the check is resumed.
Ms Mary Lee Stapp: I would say it puts her back into the situation of a person who does not have a spouse.
And this is the basis of classification, purely in sentence.
It is she then and gets back in the situation of a person, of a family where they is deprivation of --
Justice Potter Stewart: And this reaches the mother whether she carries on the relationship in her house or in his.
Ms Mary Lee Stapp: We think--
Justice Potter Stewart: Or anywhere else.
Ms Mary Lee Stapp: We may need some help on part three.
This was not before the Court.
And I don't think any of the candid directors in their testimony indicated that it had been used.
I would say, we need help from the Court not a definition if this does not purport with a good definition of a marital relationship.
Justice Byron R. White: Mrs. Stapp, if the federal regulations of the federal law, the federal regulations define the parent as the natural parent, and said that benefits shall not be denied because the mother is living in an informal arrangement.
The federal law said that expressly during the statute by regulation.
Ms Mary Lee Stapp: By regulation.
Justice Byron R. White: And then the Alabama regulations came out in this form.
Ms Mary Lee Stapp: You have certainly hit what the law of Court said in suitable home policy.
I believe that's what you're referring to.
Justice Byron R. White: But now would you find -- would you think the Alabama regulation could stand in the face of the federal regulation -- (voice overlap)
Ms Mary Lee Stapp: I think it stands up very well with the Georgia regulation which has been approved since it was patterned on Georgia regulation and it has been approved.
Justice Byron R. White: Let's assume for the moment that the federal law clearly did the contrary.
Ms Mary Lee Stapp: I want to reserve 10 minutes -- I found that my light went on --
Justice Byron R. White: If it was clearly -- in Alabama, if the federal law was clearly contrary to the Alabama regulations, could the Alabama regulation stand?
Ms Mary Lee Stapp: We don't think it's clear in the first place.
The second place (voice overlap)
Justice Byron R. White: I know you don't but let's assume for the moment.
Let's assume for the moment that the federal law was clearly did the contrary.
Ms Mary Lee Stapp: If it prevented us from making a classification which might put married persons in a deprived situation.
I'm not sure that you would want us to a –
Justice Byron R. White: I'm just wondering whether it's some issue here short of the Equal Protection issue whether it's really (voice overlap)
Ms Mary Lee Stapp: We do have a question with that.
Now I'll try to reach it in my next 10 minutes.
Chief Justice Earl Warren: Mr. Garbus.
Argument of Martin Garbus
Mr. Martin Garbus: May it please the court.
The history of the regulation indicates that its sole function was not to save money but to restrict case loads, to act cumulatively against certain families.
At page 710 of the appendix as set forth in the minutes of the Board in Alabama when they passed this particular regulation, and Commissioner King in response to the question of Mr. Justice Fortas was asked at the trial.
“Mr. King, are you aware of any legal machinery which can make it mandatory to such so called substitute parents carry on the responsibility of supporting the child?”
He answered, no.
The next question, “Do you know of any one case whereas the result of the application of the substitute parent rule, the alleged father or parent has contributed to the support of the children?”
The answer was no.
And when Alabama some 23,000 people were cut off from Aid.
In Georgia some 23,000 people were cut off from Aid.
And in Louisiana, some 10,000 people were cut off from Aid for the same regulation.
According to HEW, there are nearly one half a million children in the country at the present time being denied aid because of this regulation.
Justice Potter Stewart: How many other states have this?
Mr. Martin Garbus: 18 states have this regulation or similar regulations and is set forth in the appendix to my brief.
Justice Potter Stewart: Is it typical of the states not to give ADC to the children of married couples, no matter how impoverished --
Mr. Martin Garbus: Throughout the country, there are ADC programs and ADCU programs.
I think some 18 and 19 states have adopted the program whereby they give Aid even though the man is in the house even though the married spouse is living there.
It's a regulation that was passed on a test basis in 1961, was that thereafter an experimental regulation is presently in effect.
The States have the option with respect to whether they want to adopt it or not.
Justice Potter Stewart: And then you say a minority of the states have this?
Mr. Martin Garbus: Yes.
But the thrust of-—
Justice Potter Stewart: The majority of the states do not give Aid to Dependent Children if their parents are married, no matter how poverty stricken, is that correct?
Mr. Martin Garbus: Yes, I'd like to add supplemental to the Court, give you the list of those states and I will also furnish you with the regulations.
The other analogy that Mrs. Stapp makes, that if the substitute father marries the man, in other words, it encourages immorality, if the substitute father marries the man, then it's not that his interest, in other words to marry them because Aid will be lost.
That's not the way that federal regulation is written.
The federal law provides that if the man does marry the woman, and if the man is the step parent, he's still not legally responsible for the child, and Aid should go to that as family.
Now what Alabama has done, it compounded the substitute parent law, with the provision that the step parent doesn't -- the presence of the step parent cuts off the children from Aid.
And therefore that family has denied Aid.
Justice Byron R. White: Does federal program permit a state to cut off the Aid to a child who suddenly acquires a stepfather.
Mr. Martin Garbus: The handbook transmittal which is the federal interpretation of those regulations is very clear and specific in the sense, that Aid should be given even though the man and the woman marry --
Justice Potter Stewart: As long as he doesn't adopt the children.
Mr. Martin Garbus: Right, or as long as he's not the natural father—
Justice Potter Stewart: So a state regulation to that effect cutting off the child and if he suddenly acquires a stepfather who doesn't adopt him, a state regulation in that effect would be invalid--
Mr. Martin Garbus: It should be disapproved and that is the interim regulation which Alabama has passed in this case, pending the disposition of this case, pending the disposition of this case.
And if this Court narrowly interprets this case just to strike down the classification based on sexual morality, rather than the classification based on support, Alabama and all the other states will then pass other regulations unrelated to the question of support.
For example, they will deny Aid to a child if the father funded the child.
Where if the man in the house funded the child or if the man in the house takes the child to church, or if the man in the house indicates any kind of interest in the child, the basic issue is placed by Mr. Justice Fortas is the question of support.
And the only grant for the denying a child Aid is when that man is legally obligated to support them is removed from the house.
Justice Lewis F. Powell: Has HEW ever passed on the Alabama plan I remember?
Mr. Martin Garbus: HEW has passed on the Alabama plan.
Justice Lewis F. Powell: And what did it do?
Mr. Martin Garbus: They disapproved the plan.
Justice Lewis F. Powell: What's the effect of that?
Mr. Martin Garbus: The HEW in December 11th of 1964 sent back the last Alabama (Voice Overlap), in other words Alabama wrote and said, “Here's our plan HEW be applied to it in a serious negotiation of conversations and said, and it set forth in the decision that the Alabama plan is out of conformity with the Fleming ruling, is out of conformity with the constitution, is out of conformity with the Social Security Act.
Then Alabama was asked again to negotiate, to send another submission, and Alabama never did.
Now under Section 602 of the Social Security Act, the only remedy that HEW has, is to disapprove an entire plan.
In other words HEW was so upset about the plan, they would stop any Aid going to any children in Alabama.
The drastic measure which HEW has to take if they want to enforce something results in HEW being handcuffed.
Justice Byron R. White: But why in a case like this could you just say the Alabama plan is contrary to the federal statute and the federal regulations, and that's all you have to show?
Mr. Martin Garbus: We say that, we also say that—
Justice Byron R. White: What is the next part that you have to go?
Mr. Martin Garbus: What I am concerned about in a sense is the feeling that in Georgia and in Louisiana, those plans have been disapproved.
And I can see the argument being made that if they were that inconsistent, they should have been approved.
I don't think one has to go further than that.
I think the statutory holding in this case will affect the 18 other states that we're talking about, I think a definition from this Court—
Justice Byron R. White: Of what a parent is.
Mr. Martin Garbus: Yes.
Should be, if I may say the decision of this Court—
Justice Byron R. White: That's the reading of the statute.
Mr. Martin Garbus: That's the reading of the statute, and that would cut against the substitute kind of regulation that Alabama has passed.
It was litigated below.
It will cut against the Alabama substitute parent regulation that is the interim regulation.
And it will cut against the substitute parent regulations against the other states.
Justice Potter Stewart: Do I understand you Mr. Garbus to say that you think this case that can be decided in your favor purely on the basis of statutory structure rather than on any constitutional, is that right?
Justice Byron R. White: Yes, it will still be a supremacy clause then.
Mr. Martin Garbus: Yes, you have in this instance and this is the first case before you like this, the relationship between HEW and the states that administer Aid.
And you have specific authority in HEW to approve proper state plans.
And I suppose one of the significances of the Fleming ruling was it again reasserted the right of HEW to pass on state plans.
And of course, the Fleming rule by implication then became more of a statute in section 604.
Now with respect to the question of the step for the support, the federal handbook exception at Section 3412 Subdivision 4 states as follows, “In the absence of a legal obligation to assume a parental role, a step parent is no more of a parent than any other person acting on local apprentice.
In these situations, the only safeguard to the child's right to assistance is its eligibility under the condition of being deprived of the support or care of the natural parent.”
Now the other parent spoken of in Section 3412 are all natural parents, whether married or not.
In other words, in Alabama if the man forced as an illegitimate child, he still can be compelled to support that child so long as he's the father.
Justice Byron R. White: What definition do you suggest that it would be given to parents from the statute, the one that you just read?
Mr. Martin Garbus: The definition would be that states must treat his parents for the purposes of ADC eligibility only persons with a legal obligation to provide support and that's the purpose of HEW.
Justice Abe Fortas: Provided they are the parents.
Mr. Martin Garbus: Oh, yes.
The reading of the statutory history in this case justifies that interpretation.
The word parent is used several times in the statute itself and an analysis of how it's used in the statute leaves no doubt but then they're talking about the natural parent.
Under Section 602, a state plan must have a provision which “provides a prompt notice to appropriate law enforcement officials of the furnishing of Aid to Families with Dependent Children in respect of the child who has been deserted or abandoned by a parent.
Now the function of that notice provision to law enforcement officials is so that they can go out and compel support.
Now under Alabama Law, and under the law of most of the states in this country, you can't compel support from anyone other than a natural parent or one who has adopted the child.
Now HEW then in its handbook, in transmittal which again is the official regulation concerning what is a parent, directs states to give notice regarding only those persons who under state laws are defined as parents for the support of minor children.
Alabama's own welfare regulation states with respect to that notice provision, report parents who are legally responsible under Alabama Law.
These are the natural or adoptive parents of a child.
A natural parent includes the father of a child born out of wedlock, if paternity has been legally established.
It does not apply to a stepparent.
So the provision -- this attempted analogy that Mrs. Stapp was trying to make about an inconsistency, it's because the facts that she's talking about inconsistent with Alabama Law itself.
Justice Hugo L. Black: Would you mind that the pointing out rather under the statute is the particular language where I could find that in the brief that you think is complex federal section. --
Mr. Martin Garbus: I'm sorry the section - no, I find that consistent, I'm sorry.
I find that consistent.
Justice Hugo L. Black: I thought you said--
Mr. Martin Garbus: I mean if that's inconsistent well what Mrs. Stapp was saying, with respect to how you should --
Justice Hugo L. Black: We can decide this under federal statute to say that it violates the federal statute.
That's what I want to know --
Mr. Martin Garbus: That would be Section 606 which defines--
Justice Potter Stewart: Where is it in your brief?
Justice Hugo L. Black: Where is it?
Have you added in your brief?
Justice Potter Stewart: Probably in the appendix to the appellant's brief, isn't it?.
Mr. Martin Garbus: It is set forth that at page 45 of the appendix.
Justice Hugo L. Black: 45 of the--
Mr. Martin Garbus: 45 of the appendix and it's in the decision of the Board.
Justice Hugo L. Black: Volume one.
Mr. Martin Garbus: Yes it is.
In Alabama it's about 80%.
Well first of all, the Alabama statute which relates to the federal statute requires Alabama to furnish Aid to needy dependent children as defined in the Federal Act.
That's the Alabama Enabling Act.
So Alabama in passing that particular piece of legislation has decided to be bound by how the federal government defines dependent child, as have all the other states.
Now with respect to HEW, beside in the sense, Mr. Justice Harlan, you have the statute which specifically states that the state acts as the agent for the federal government with respect to dispersing of these funds.
You also have under Section 602, the obligations and the powers that are placed upon HEW in dealing with the states.
In other words, there is a greater power that HEW has in dealing with respect to the creation of welfare programs.
And one finds in many other areas because of the history that existing project on the Social Security Act came into existence.
Now Court below, when I think a good deal further than Mrs. Stapp indicated they did go.
First of all, they call the right is involved here a statutory entitlement.
They called it in other words, a right to receive eligible assistance.
And Secretary Fleming when he promulgated to set the Fleming Rule which is set forth at page 19 of the brief, talks about the right where the funds to “provide the basic essentials of life itself”.
Now if the Court does get involved in an Equal Protection argument, and the Court finds it necessary to determine which standard one is going to use, then I submit that the standard that should be used in this case is one of strict scrutiny.
That the right involved the right to eligible assistance, the right to life, the right to shelter, the right to food, the right to clothing, is the kind of a right that the man in this Court to closely and carefully analyze the kind of regulations that are being passed against them.
Secondly, the nature of the group that's involved in this case, the most helpless, the impoverished, and the destitute. Those people who are unable, these needy children unable to come into Court and clarify the kinds of regulations that we're faced here with today.
I think that the lower Court was proper, in it's decision every respect, I think the implications of the Fleming Rule will namely with respect to what is the function of these ADC program, what is impermissible, an impermissible attempt under the federal program namely in the Fleming Ruling to control illegitimacy suitable homes.
Justice Potter Stewart: -- equal protection point of view but purely from the statute, and you concluded that the Alabama regulation was contrary that either the federal statute or to a federal regulation, or to a federal rule, would you say then that it's supremacy clause question or is it a matter of treating the State as an native federal government in administering the Act and that the Alabama regulation is simply doesn't authorize but a statute anymore than the similar regulation by HEW might not be authorized by the statute itself.
Mr. Martin Garbus: I would think that it's something other than a Supremacy Clause because of the existence-- because of the power in HEW to regulate the agency which it's specifically set forth.
I would think though that this case could be decided on the grounds that the regulation is inconsistent with the purposes of a Social Security Act, and is inconsistent with the Alabama regulation.
Justice Lewis F. Powell: Can HEW instruct Alabama as to what it should do with this program?
Mr. Martin Garbus: No, all that HEW can expect of Alabama is that it makes reasonable classifications with respect--
Justice Lewis F. Powell: The only power that HEW has is to cut off funds, isn't it?
Mr. Martin Garbus: Yes, and to approve state plans, which then release funds.
Its power only is tied into the funding question.
Justice Potter Stewart: But require a potential beneficiary of these grants.
This child comes in and says if you're going to have an ADC program, you're going to have to have it in compliance with the Federal Law.
Mr. Martin Garbus: That's right.
Justice Potter Stewart: And I insist that you comply with the Federal Law if you're dispensing federal money.
That's what you're claiming?
Mr. Martin Garbus: Yes.
Justice Potter Stewart: But there is that question I gather, that this Federal Law does, in terms, authorize the state to do something in this area, does it?
Mr. Martin Garbus: Oh, it authorizes the State.
Justice Potter Stewart: Oh, it does?
Then what your argument really is that what is authorized does not embrace a regulation of this kind because the statute permits this kind of regulation only in the context of parent with an obligation of support, is that it?
Mr. Martin Garbus: Yes.
Justice Potter Stewart: So whether or not you phrase this as a supremacy argument, or simply a regulation outside the authority to the States under the statute to come out the same way?
Mr. Martin Garbus: I do, yes.
And that's why the argument below-- and that's why the court below sort of treated the issues together.
Justice Byron R. White: Well, maybe they went on to equal protection.
Mr. Martin Garbus: They also talked about the relationship between the statutes, and they also talked about the state plan and the obligation that it puts on HEW, and on the federal government.
And they also relied in great length, on the Fleming Ruling both again, for its interpretation of the regulation, what's proper, what's not proper.
There are just two final points I'd like to make to make.
Justice John M. Harlan: Before you do that, will you tell me just as precisely as you can, in respect in what you think the Alabama program violates Section 606 if that's right.
Mr. Martin Garbus: In defining, as a dependent, in defining, as a parent, which is the language of Section 606, the man who has been described as a substitute father, someone who has no obligation to support them, and he never had seen the child, has not fathered any of the child, does not have custody, has no relationship to the children at all, nonetheless they lose Aid because of it.
Justice John M. Harlan: Well, your position then is that, the State Welfare Agents say would have no authority to talk to a definition of a parent, because that is defined in 606?
Mr. Martin Garbus: No, that definition is not in 606, right?
Justice John M. Harlan: I did not say it was in 606.
Mr. Martin Garbus: No.
The definition I'm concerned with what is the word “deprivation of a parent” mean, and parent, what I have suggested is, that you look to the HEW transmittals that you look to the legislative actual language.
Justice John M. Harlan: Well, of course, the actual language is -- I want you to ask me, if you will, to tell me again precisely, in what provision of the federal statute do you think is violated by the Alabama plan?
Mr. Martin Garbus: The manner in which HEW has interpreted the word “parent”.
Pardon me, the manner in which Alabama has interpreted the word “parent”.
Justice John M. Harlan: With what provision of the statute does that conflict?
Mr. Martin Garbus: The purposes of the statute, it sets forth in Section 601, the purposes of the statute, the sole purposes of the Aid to Dependent Children Program, but to furnish assistance to needy dependent children.
And what I'm suggesting is that by adopting this interpretation of the word “parent”, Alabama is acting in a manner inconsistent with Section 601.
Justice Potter Stewart: Well, I wonder if you really mean that or the statute says that a needy child who has been deprived of parental support, that's the actual language.
Mr. Martin Garbus: Yes.
Justice Potter Stewart: And what you're saying really is that these children, not withstanding this relationship with the mother with some other man, remain deprived of parental support, even though she has that relationship with another man.
Is that what you're saying?
Mr. Martin Garbus: That's what I'm saying.
Justice Potter Stewart: And therefore, it's inconsistent with the statute since this child remains deprived of parental support, to say that he's not entitled to the benefits, is that it?
Justice Byron R. White: You may have a tougher argument if Alabama imposed a duty to support these children on men having this kind of relationship with the mother.
Mr. Martin Garbus: Surely.
Justice Hugo L. Black: Do I understand that if the mother of four children has occasional illicit relations with a man who is not the father of those children, that those children under this Act can be deprived of their rights under the statute.
And that there is no obligation at all on the man who is called a “substitute father”.
That's correct, isn't it?
Now, do I understand that if she marries this man, and he becomes a stepfather of these children that he is not liable for their support?
Mr. Martin Garbus: That's right.
Justice Hugo L. Black: But the children lose the support under the Act, just the same.
Mr. Martin Garbus: They should not to be consistent with HEW.
Justice Hugo L. Black: No, I didn't ask you what's consistent under the Alabama statute.
Do the children still lose their rights under the--
Mr. Martin Garbus: They have just passed another regulation which says they will lose their rights in that situation.
That's the interim regulation which they passed after we were successful in striking down the first.
And I would submit that that--
Justice Potter Stewart: Even if she marries the man?
Even if she marries the man, will the children continue to be getting--
Mr. Martin Garbus: If she marries the man, under Alabama Law-- under--
Justice Potter Stewart: The children are not his.
And she marries the man, and he does not adopt them, the children continue not getting any support, is that it?
Mr. Martin Garbus: Yes.
Justice Potter Stewart: And he has now a legal obligation to support them, under Alabama law?
Mr. Martin Garbus: Yes.
Now, with respect to the argument about how this saves funds, if you have a case load of 150,000 people, and you're interested in saving funds, there's a reasonable way to do it.
You just allocate your funds among the most needy.
Quite apart from the fact that that sole justification for regulation that it saves funds in this case, would be impermissible.
Chief Justice Earl Warren: Mrs. Stapp.
Rebuttal of Mary Lee Stapp
Ms Mary Lee Stapp: In our answer to Mr. Justice White's lies question, we must comply with the federal regulation, yes.
HEW has not disapproved our policy.
It is under an AO, a negotiation statues.
We consider that it is very much like those States who have been approved, and therefore--
Justice Potter Stewart: Yes, but the other side claims that--
Ms Mary Lee Stapp: There's a disagreement on this.
Justice Potter Stewart: That properly construed the statute itself.
Ms Mary Lee Stapp: If you construed the statute like Mr. Garbus suggests, then HEW would never have had authority to permit any State to carve out lesser classifications.
Our theory and a theory all over the country for years, has been a child doesn't get Aid if there are two able-bodied persons in the home.
And this able-bodied person does not have to be a person who owes a duty of support.
Our regulation sets out to define the (Inaudible) of an able-bodied person who is not married to the mother.
So I think you'd want to remember--
Justice Abe Fortas: (Voice Overlap) the household doesn't it.
Ms Mary Lee Stapp: We're asking for help on that part of --
Justice Abe Fortas: (Voice Overlap) of the man who's not there is there.
Ms Mary Lee Stapp: As I said, that part of the regulation has not been used, and we would like your help on that.
If you'd see fit to permit states to continue to make classifications based on two able-bodied parents.
I would say that many States may decide that this would be the basis to elect whether or not to continue on having an ADC program, because this does affect case loads quite a bit.
And I would--
Justice Abe Fortas: How do you want our help on this?
Ms Mary Lee Stapp: We would like you to reverse the lower Court.
We would like you to hold Alabama regulations valid, particularly, parts one and two.
And then if you think part three needs a little further clarification, I think this Court could do adopt to that up a little.
Justice Abe Fortas: You'd like us to relieve your misgivings?
Ms Mary Lee Stapp: I'd like to.
Justice Thurgood Marshall: Did I read correctly that in one of these cases, this parent was lawfully wedded to another woman, and had some children?
Ms Mary Lee Stapp: I would like to point out that this is one of the--
Justice Thurgood Marshall: My question is, how can it be two parents at the same time?
Ms Mary Lee Stapp: We call this informal polygamy (laughter).
And we don't think it should be favored.
We do not think it should be favored in public assistance programs.
Justice Thurgood Marshall: Well, I didn't say you would call him a parent.
Ms Mary Lee Stapp: I think a substitute spouse is a better word.
Some States just ought to not use the term “substitute spouse”.
I think in some societies, polygamy has been recognized as a way of life.
We do not think that this reflects the way in which we do things in his country, and therefore, should be discouraged.
We have finally come to the position that this type of situation, the-- excuse me.
Justice Byron R. White: Do you think you'll be successful?
Ms Mary Lee Stapp: I think there's great problems involved in making a decision eventually, that welfare departments, who cannot disassociate themselves from the informal practices.
And I wish this Court is really considering our problem with us.
If you do take the course that's suggested by Mr. Garbus, you will not abolish informal practices.
You will not make it possible for a case worker to explain why she terminates a grant.
She will still have the problem of saying to a family who lives out of wedlock, “Yes, you get a check, but if you're married, you do not.”
The Court suggested here does not obviate the problems, the real problems of informal relationships, and what to do about them.
And we think there's a --
Justice Hugo L. Black: Mrs. Stapp, is it true that if a woman has informal relations, as you call them, with a man, that her children lose their standing under your welfare laws?
Ms Mary Lee Stapp: If they have a standing, that is separate from her as a grantee relative receiving a check to spend it.
Justice Hugo L. Black: That's right if they're otherwise qualified.
Ms Mary Lee Stapp: If they have a standing that is separate from hers, then we may-- we may misconceive and put an ADC program
Justice Hugo L. Black: Well, now, let's not talk about that.
Let's take some very simple facts.
Here's a woman who has been deserted by her husband.
She has four children.
She has what you call “informal relations” with another man.
Ms Mary Lee Stapp: Is this part two of the regulation you're speaking of?
Justice Hugo L. Black: I'm giving you facts.
Ms Mary Lee Stapp: Part one is the true living.
Justice Hugo L. Black: Never mind.
Ms Mary Lee Stapp: Justice, I would like to mention in connection with the statutory construction, there are excellent briefs that have been submitted on this point, rely on the house version of what the house bill suggested.
I do not have this in my brief, and I would appreciate if you're looking at the remarks of Senator Harrison, who is construing what deprivation of parental support meant.
And I believe Senator Black was answering here that there -- in senate, he stated “a state will not have to aid every child which it finds to be in need.”
Obviously, for many states, that would be too large a burden.
It may limit Aid to children living with their widowed mother.
Oh, it can include children without parents living with near relatives.
This is not included in my brief, and it is in the congressional record at -- in the 1935 congressional record.
Justice John M. Harlan: What's the volume of that record?
Ms Mary Lee Stapp: I will have to-- I think it's on my other notes.
I would like you to consider this but the senate was listening to it in the debate, as well as the house.
I hope I'll be able to print this that changes to me.
Justice John M. Harlan: Why not just put it on a piece of paper and give it to me?
Ms Mary Lee Stapp: Thank you.
Justice John M. Harlan: My pleasure.
Ms Mary Lee Stapp: Let's see.
This regulation is not supposed to relate to occasional relationships.
My time is up.