KAHN v. SHEVIN

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Argument of Sydney Mckenzie Iii

Chief Justice Warren E. Burger: We’ll resume arguments in 73-78.

Mr. McKenzie.

Mr. Sydney Mckenzie Iii: Mr. Chief Justice, and may it please the Court.

Because of that part of the argument yesterday, I feel that it’s necessary this time to clarify some of the facts of this case.

This is a claim by a widower that he has been denied equal protection of the law both by a mandatory, self-executing provision of a Florida constitution and by a statute providing exemption from ad valorem taxation of properties with a value of $500 yearly for widows but not for widowers.

Now, that’s important for two reasons.

One, first of all, counsel in argument yesterday stated that this was a deduction from taxation.

In fact, it’s not a deduction.

It’s an exemption to the amount of $500 which, in dollar terms translated through the assessment laws of Florida, comes out to about a $15 amount.

Secondly, --

Justice William J. Brennan: What difference does that make?

Mr. Sydney Mckenzie Iii: We don’t make a de minimis argument.

I simply wanted to clarify the fact that it’s not a $500 deduction from tax but --

Justice William J. Brennan: I thought you were making a distinction between a deduction and an exemption.

Mr. Sydney Mckenzie Iii: That’s right.

Justice William J. Brennan: And I ask, is there a difference?

Mr. Sydney Mckenzie Iii: Yes, there is a difference.

The exemption--

Justice William J. Brennan: If there’s a difference, is there a significant --

Mr. Sydney Mckenzie Iii: The exemption is from the ad valorem value of the property.

In other words, if property is worth --

Justice William J. Brennan: I know what it is, but I’m asking what difference does it make?

Mr. Sydney Mckenzie Iii: It makes a difference --

Justice Potter Stewart: It makes a difference about $485.

Is that right?

Mr. Sydney Mckenzie Iii: That’s right, Your Honor.

Justice William J. Brennan: But what legal difference does it make is what I’m trying to --

Mr. Sydney Mckenzie Iii: No legal difference as far as this particular case.

I merely wanted to clarify the fact, Your Honor.

Secondly --

Justice Potter Stewart: It’s a $15-benefit.

Mr. Sydney Mckenzie Iii: It’s a $15-benefit and I was merely trying to put it in perspective.

Justice William H. Rehnquist: Actually, if the $500 were actually deductible from the taxable you refer to it as a tax credit, wouldn’t you?

Mr. Sydney Mckenzie Iii: Yes.

Chief Justice Warren E. Burger: Yesterday, we had another case involving all kinds of millions of claims $3-10, but the case was here just as well.

Mr. Sydney Mckenzie Iii: Yes, Your Honor, and we’re not making an argument that the case should not be here.

The other question --

Unknown Speaker: I’m sure you’d rather that it weren’t.

Mr. Sydney Mckenzie Iii: Yes, Your Honor.

The other question though is of more significance and that’s the fact that we are dealing with, as I say, not simply a statute but a provision of the Florida constitution.

And this is significant in that, as we noted in our brief, we know of no case providing for this Court or the Florida Court to expand a provision of the constitution to include members of a class who are not included in the class where there is no ambiguity, and I think that’s important in the discussion yesterday of whether it could be sent back to the Florida Supreme Court for the purpose of expanding the class in the statute.

It isn’t simply a statute.

It’s a Florida constitutional provision that we’re dealing with.

Justice Potter Stewart: As I understand it, the ultimate conclusion was that Mrs. Ginsburg, I think, acknowledged that that wasn’t for us to do that.

The limit of our function here was to uphold the provision of the Florida constitution and statute or to invalidate it and, if it’s invalidated, it would be remanded to the Florida Supreme Court to do with our decision what it will.

Mr. Sydney Mckenzie Iii: Very good.

They’ve made a strong argument in their briefs --

Justice Potter Stewart: As to what the Supreme Court ought to do, but that’s not for us.

Mr. Sydney Mckenzie Iii: Basically, the State of Florida has two positions.

First of all, that the compelling interest tests of the Frontiero plurality should not be applied to sex classifications and, secondly, that the classification of widows to the exclusion of widowers in view of the purpose and the factual realities of this situation does not, as applied to the appellant here, violate the equal protection either,-- whether tested by Frontiero in the plurality or by the standard in Reed, if in fact that’s different from traditional standards, or by traditional tax classification in sex standards.

And I’ll address myself first to the traditional test because I feel that, under that test, it’s clear that the distinction here meets the test.

First of all, the classification we have is a classification of widows and widowers, and the question is, what is the purpose of that classification?

The State of Florida, as noted by the Florida Supreme Court, recognizes by this classification that women and especially widows are an economically disadvantaged class in our society.

This is not in line with past cases where stereotypes were developed for the purpose of so-called protective legislation for denying women something on a basis of a stereotype that wasn’t backed up by facts but was backed up by beliefs that people had, by mythology, really.

It’s not based --

Justice William J. Brennan: (Inaudible)economically disadvantaged?

Mr. Sydney Mckenzie Iii: What?

Justice Potter Stewart: Widows.

Justice William J. Brennan: Widows?

Mr. Sydney Mckenzie Iii: Widows, yes, I would say that widows is --

Justice William J. Brennan: I thought the statistics were all over the country.

Mr. Sydney Mckenzie Iii: The statistics of the country -- the widows are to the country -- I think the widows are economically disadvantaged.

Justice William J. Brennan: Anything but an economically disadvantaged.

Justice Potter Stewart: Well, I think my brother Brennan is referring to the fact that widows own a great deal of the property in the country but that is because there are many, many, many more widows than there are widowers.

Mr. Sydney Mckenzie Iii: That’s right.

I would agree with that.

Justice Byron R. White: And it’s somewhat those are --

Mr. Sydney Mckenzie Iii: Well, if they--

Justice Byron R. White: -- don’t have any money and others do.

Mr. Sydney Mckenzie Iii: Well, I think that --

Justice Byron R. White: Like widowers.

Mr. Sydney Mckenzie Iii: I think-- but, basically, the fact is that taking a widow and a widower, the general facts are that a widow has a likelihood if she must transfer into the job market of not being able to earn as much as the widower simply, if for no other reason, then the fact is that women in general can only earn -- are only earning 60% of what men earn.

Justice William O. Douglas: You mean they are discriminated against?

Mr. Sydney Mckenzie Iii: They are discriminated against, and I think it’s a recognition of that fact.

The Florida statute really wrecking and constitutional provision merely recognizes the women not because of any inherent problem with women but with an inherent problem with our society that hasn’t been corrected yet are, in fact, discriminated against.

Justice Thurgood Marshall: Does Florida give any other provision in benefit of women in their taxation other than this?

Mr. Sydney Mckenzie Iii: Other than this particular --

Justice Thurgood Marshall: Yes, sir.

Mr. Sydney Mckenzie Iii: Provision?

I’m not --

Justice Thurgood Marshall: Because I would assume that the widow before she becomes a widow, if what you say is true, she suffers a lot too.

Does Florida recognize that in this taxing scheme?

Mr. Sydney Mckenzie Iii: Women other than widowers?

Justice Thurgood Marshall: Yes.

Mr. Sydney Mckenzie Iii: I am not familiar with any provisions that --

Justice Thurgood Marshall: Well, why single out the widows?

Mr. Sydney Mckenzie Iii: Well, it was the wills of people in adopting the constitution of Florida.

Justice Thurgood Marshall: Well, our fact says when the constitution was adopted the same as they are today?

Mr. Sydney Mckenzie Iii: Pardon, Your Honor?

Justice Thurgood Marshall: Were women allowed to make contracts when this constitution was first adopted?

Mr. Sydney Mckenzie Iii: This constitution was adopted in 1968, Your Honor.

Justice Thurgood Marshall: Wasn’t there a provision before then in the old constitution?

Mr. Sydney Mckenzie Iii: Yes.

Justice Thurgood Marshall: And it was just carried over.

Mr. Sydney Mckenzie Iii: It was --

Justice Thurgood Marshall: When was it originally in the constitution?

Mr. Sydney Mckenzie Iii: 1885, Your Honor.

Justice Thurgood Marshall: Well, aren’t women in a little disposition now than they were in 1885, little?

Mr. Sydney Mckenzie Iii: In a better position now than they were in 1885?

Justice Thurgood Marshall: Yes.

Mr. Sydney Mckenzie Iii: Yes, Your Honor.

But, clearly, they are not by any means have been given economic equality in society, and I think this is a recognition of that.

Justice Thurgood Marshall: But how can you put them in a class?

I would assume that there are some widows in the Palm Beach area that are little better off than some widowers in upper part of Florida.

Mr. Sydney Mckenzie Iii: Well, I think the law has always recognized that no class is going to be perfect even if we took $4,000 limen than anyone who earns $4,000 or less should get $500 exemption but still have the --

Justice Thurgood Marshall: That’s especially true in taxation I assume.

Mr. Sydney Mckenzie Iii: Yes, Your Honor.

We still have the problem of saying that there are people who earn $4,000 who have no dependents and there are people who earn $4,001 who have 10 dependents and are much more needy.

Obviously, for the purpose of taxation, states have never been called on to treat every case on an individual basis.

And, I think that --

Justice Thurgood Marshall: Well, of course --

Mr. Sydney Mckenzie Iii: The Court will recognize that that’s not a practical possibility.

Justice Thurgood Marshall: I’m just trying to get the reason for this singling out.

You agree this is solely on sex?

Mr. Sydney Mckenzie Iii: I would say it's sex as tied to economic reality.

In other words, the class is not simply actually --

Justice Thurgood Marshall: It’s strictly, well --

Mr. Sydney Mckenzie Iii: The fact, the class isn’t--

Justice Lewis F. Powell: This isn’t between a widow and a widower other than sex.

Mr. Sydney Mckenzie Iii: Other than sex?

Justice Thurgood Marshall: Yes.

Mr. Sydney Mckenzie Iii: One, the fact that a widower being a man is recognized as having greater earning potential in our society --

Justice Thurgood Marshall: Is there any way for a widower to become a widow?

Mr. Sydney Mckenzie Iii: Pardon?

Justice Thurgood Marshall: There’s no way for a widower to become a widow.

Mr. Sydney Mckenzie Iii: No, there is no way --

Justice Thurgood Marshall: So, it’s sex.

What’s wrong with admitting that it’s based on sex?

Mr. Sydney Mckenzie Iii: It’s based -- Let’s say that it’s based on sex is accurate, but it’s based on sex plus an underlying recognition of factual difference between the sexes are not simply a stereotype difference between men and women.

Justice Thurgood Marshall: The same constitution also that prevented women from serving on juries, didn’t it?

Mr. Sydney Mckenzie Iii: Yes, it did, Your Honor.

The law of Florida prevented women from serving on juries.

Justice Thurgood Marshall: And now they do.

Mr. Sydney Mckenzie Iii: But it didn’t prevent them from showing on juries.

Justice Thurgood Marshall: Now, they’ve been persuaded to let women serve on juries, haven’t they?

Mr. Sydney Mckenzie Iii: Women were not prevented from serving on juries.

They had to take affirmative action to indicate a desire to serve on juries.

Justice Thurgood Marshall: Back in the 19th century?

In the original --

Mr. Sydney Mckenzie Iii: At the time of the Hoyt case, Your Honor.

Justice Thurgood Marshall: In time of the original constitution?

Mr. Sydney Mckenzie Iii: At the time the original constitution of Florida.

I’m not prepared to say, Your Honor.

Chief Justice Warren E. Burger: Mr. McKenzie, are you suggesting that this is based on economic need?

Mr. Sydney Mckenzie Iii: Yes, Your Honor.

I’m suggesting that this case is very little and different than Gruenwald versus Gardner which was --

Chief Justice Warren E. Burger: Well if it was based on economic need, why doesn’t it say so instead of putting it on widowhood?

Mr. Sydney Mckenzie Iii: Well, because I think it recognizes the underlying rationale.

The class is not simply widows.

The class is widows, the blind, and the totally and permanently disabled.

I think that all those have the same line of reasoning running through them for different reasons.

But disabled or --

Chief Justice Warren E. Burger: And the works --

Mr. Sydney Mckenzie Iii: All are economically disabled.

Chief Justice Warren E. Burger: It works to benefit the wealthy widow in Palm Beach.

Mr. Sydney Mckenzie Iii: It works to benefit the wealthy --

Chief Justice Warren E. Burger: Widow and --

Mr. Sydney Mckenzie Iii: Blind person also.

Chief Justice Warren E. Burger: The wealthy widow in Palm Beach and to disadvantage the poor spinster in Tallahassee.

Mr. Sydney Mckenzie Iii: Right, but the fact is that, as a general objective analysis, women and widows are not in the same economic classification as our widowers.

They don’t have the same opportunities.

First of all, a woman who is a widow is either one of two possibilities.

One, she’s the head of the household, the same as the widower and, in that case, the distinction is exactly as I’ve said that she has to -- she does not have, as a general rule, the job opportunity that the male does.

The other case is where she has been -- she has not been the head of the household and a widow -- then the husband is the one that dies.

And, in that case, she not only has to move over into the job market but she has to get someone to replace her and take over the duties that she had, which is really a double burden compared to the man whose wife dies who simply has to replace the functions that his wife had in the family unit.

She has to do both that and move over into the job market.

Justice William H. Rehnquist: And if she moves over in the job market for the first time at age 55, I suppose her lower earnings compared to a widower who may have been in the market for 30 years aren’t necessarily attributable to discrimination.

She simply hasn’t been in the market.

Mr. Sydney Mckenzie Iii: She hasn’t -- well, I would agree that they aren’t -- that that’s true but they’re even compounded by discrimination and that the job opportunities not only to an elderly person but to her particularly are greatly lessened both by her age and by her sex.

Now, as to the general classification, the traditional test, first of all, if the Court is to use that test, then we would submit that it would be appropriate in all the tax cases where there are tax classifications, there’s a presumption of constitutionality, a heavy burden on one challenging the classification to show no conceivable permissible basis and it’s been recognized that the classification need not be exact or have mathematical nicety.

Clearly, if the no conceivable rationale purpose test is to be used, I’d submit that the appellant here has not met that burden.

Not only is there a conceivable rational purpose, I submit, but the purpose that we’ve offered to the court is in accordance with proper tax purpose concerned for the economically disadvantaged groups in society, and that that’s a valid social concern.

Secondly, under Reed versus Reed, it’s possible that that case could be read to say that there is an additional burden that the court is going to place on the state where it makes a classification, and that’s the burden of justifying a rational classification.

And, I submit again that we have not relied on stereotypes that women are either physically not capable of doing the work that men are capable of doing or the women are in some way, because they’re the creator of children, that they should stay at home.

We’re not saying that.

We believe that women have all the rights that men have, but that the facts of our society are that women have not yet been given those economic rights and that, until they do, it’s appropriate for the State of Florida to have legislation which recognizes that and gives them an affirmative chance to pull themselves to attain equality.

Justice Thurgood Marshall: Of $15?

Mr. Sydney Mckenzie Iii: Well, Your Honor, the fact that it’s a small amount is true.

But, to argue that the State of Florida should give more, the determination of the people of Florida was that it was an appropriate --

Justice Thurgood Marshall: Gesture.

Mr. Sydney Mckenzie Iii: Gesture, and it is the --

Justice Potter Stewart: It might enable her to retain the ownership of the property rather than make a distressed sale of it.

Mr. Sydney Mckenzie Iii: The fact is that someone at a low level of income, $15 -

Justice Potter Stewart: Well, $15 annually on taxes on a real estate.

Mr. Sydney Mckenzie Iii: Annually, may enable them to retain property which they would otherwise not be able --

Justice Potter Stewart: To sell.

Mr. Sydney Mckenzie Iii: -- to retain.

While we submit that the plurality opinion in Frontiero, Frontiero should not be applied.

I would submit that based on that decision, the classification that we’ve established is sufficient.

That case specifically, in a footnote, refers to in footnote 22 I believe it is, states it should be noted that these statutes and those are the statutes in Frontiero are not in any sense designed to rectify the effects of past discrimination against women citing Gruenwald versus Gardner and Jones versus Mayer and South Carolina versus Katzenbach.

And, on the contrary, these statutes seize upon a group of women who have historically suffered discrimination in employment and rely on the effects of this past discrimination as a justification for heaping on additional economic disadvantages.

That isn’t the case that we have here.

There’s no -- there is -- I mean, the second is not the case that we have here.

There is no purpose, nor result of heaping additional economic disadvantages on women.

There is a purpose of taking affirmative action if indeed women are to be determined to be a suspect classification to reduce the results of past historic discrimination, so that even under Frontiero I would submit that it would be appropriate to approve this classification.

However, I think it’s well to point out to the Court, and we submit, that this Court has, in general, limited suspect classifications to groups which sense that have been described since carrying products as discrete and insular minorities.

And, I would submit that a classification based on sex does not have within it a discrete and insular minority whether be it the plaintiff here who is a male seeking to have the statute applied to him or else struck down all together.

Clearly, the male is not a minority in a group where men and women are equal and if women are anything, it would be, I guess, a philosophical minority and that they’ve been discriminated against.

But, I know of no case where the court has found that a philosophical minority qualifies for a strict scrutiny and I think it’s proper because any group that is an interest group is a minority and it may not get everything at once out of the judicial process and it’s not for the court, every time some group other than a racial classification or an easily identifiable classification like that comes before the court to give strict scrutiny to something that doesn’t -- to a statute that doesn’t give that interest group what it wants.

And, on those grounds, Your Honor, I would submit that this classification should be upheld.

Justice Potter Stewart: Mr. McKenzie.

Mr. Sydney Mckenzie Iii: Yes.

Justice Potter Stewart: Is a property tax -- is this tax imposed on both real and personal property and as well as mixed or is this just a real property tax we’re talking about?

Mr. Sydney Mckenzie Iii: This is -- no, it’s a tax on both real and personal property.

It’s on any ad valorem taxation which, in ad valorem taxes in Florida are both on real and personal property.

Justice Potter Stewart: Real and personal property.

And how is it -- how is property appraised down there?

How is it -- what’s the assessed evaluation?

How close to realistic market value?

Mr. Sydney Mckenzie Iii: It’s assessed at 100 -- by constitution, it’s to be assessed at full market value, 100%.

Justice Potter Stewart: Well, what’s the practice?

We all know about those constitutional issues.

Mr. Sydney Mckenzie Iii: Well, that’s in the court’s now as to whether in fact it is assessed at 100% of market value.

In fact, it’s -- I would say, assessed between 80% and 100% of market value.

That’s --

Justice Potter Stewart: Does it vary by counties?

Mr. Sydney Mckenzie Iii: It varies by counties.

That’s right.

Justice Potter Stewart: It usually does.

Mr. Sydney Mckenzie Iii: The assessors of the counties do the assessing.

Justice Potter Stewart: So, this wouldn’t--

Mr. Sydney Mckenzie Iii: However, to add to that, all assessments are reviewed for the purpose of equalization by the Department of Revenue of the State of Florida.

So that, theoretically, when they approve it, it’s a determination that that county is at 100% of assessed value.

Justice Potter Stewart: The reason for my question is, I was wondering whether this exemption could validly be supported as a provision where they might enable the widow to keep their family home after widowhood rather than having to sell it at a distressed sale if this were a real relief from the real estate taxes on that home.

But, it hardly is enough, is it?

Mr. Sydney Mckenzie Iii: Well, the question is really limited.

It might be enough for one widow.

It might not be enough for another.

Justice Potter Stewart: Well, $500 is -- and that’s the reason I asked how close to realistic market prices are your actual appraisals and assessments.

Mr. Sydney Mckenzie Iii: It is directly at 100% of assessed value, Your Honor.

Justice William H. Rehnquist: What’s your typical tax rate on real property, say, in Dade County?

Mr. Sydney Mckenzie Iii: The rate would generally be 30 Mills which would translate into -- the 30 Mills would translate into a $15 exemption under this.

Justice William H. Rehnquist: Well, on a house assessed at $20,000, what property tax would you pay in Dade County?

Mr. Sydney Mckenzie Iii: That’s right.

Justice William H. Rehnquist: $600.

Mr. Sydney Mckenzie Iii: $600.

Justice William H. Rehnquist: A month?

Mr. Sydney Mckenzie Iii: $600.

Justice William H. Rehnquist: At 30 Mills, that $600.

Mr. Sydney Mckenzie Iii: That’s right.

Justice Lewis F. Powell: Mr. McKenzie, in your brief you point out relying on Bureau of the Census figures that 35.8% of the families in Florida in which a female is a head of the family below the poverty level whereas, I think, about of about 9 --

Mr. Sydney Mckenzie Iii: 7% --

Justice Lewis F. Powell: 9% of the men who had families --

Mr. Sydney Mckenzie Iii: That’s right, Your Honor.

Justice Lewis F. Powell: Are below poverty level.

Mr. Sydney Mckenzie Iii: That’s right and I think that’s just --

Justice Lewis F. Powell: Are those figures unique to Florida or how would they be compared with national figures?

Mr. Sydney Mckenzie Iii: I would imagine they would -- I really can’t answer that, Your Honor.

Those figures were drawn out because we were especially concerned with the Florida situation.

I imagine that they would probably be typical.

I know of no situation in Florida that would make them a typical on a national basis, but I can’t represent that to the Court.

Justice Thurgood Marshall: Well, you don’t have many of those owning homes, do you?

Mr. Sydney Mckenzie Iii: Pardon?

Justice Thurgood Marshall: You don’t have many of those owning homes.

Mr. Sydney Mckenzie Iii: The ones below the poverty level, Your Honor?

Justice Thurgood Marshall: Yes, they’re mostly renters, aren’t they?

Mr. Sydney Mckenzie Iii: Not necessarily in Florida, Your Honor, because you have a lot of very poor people that own property and that they own mobile homes.

That’s the typical situation in Florida.

Much more so than any other state.

I’d say a much larger percentage of those than in a typical state would be in a position where they were in property ownership.

Justice Thurgood Marshall: That wouldn’t be true up in the Turpentine area.

Mr. Sydney Mckenzie Iii: I’m sorry?

Justice Thurgood Marshall: Up in the Turpentine area, up near the Georgia boarder.

They don’t own anything up there.

Mr. Sydney Mckenzie Iii: Well, I live in the Turpentine area, Your Honor, and it’s not so much as the rest of the state but, certainly, it’s a mobile home area the same as the other part of the state, although it’s not so much of the elderly living there.

So, that’s part of the problem.

Justice Thurgood Marshall: But it’s still at rage from the lower person to the highest anywhere you go.

You admit that and I --

Mr. Sydney Mckenzie Iii: Yes, Your Honor.

Justice Thurgood Marshall: You say that’s normal for taxation and, in some areas, it is.

It’s the question of whether it’s normal here where you draw the line on sex.

Isn’t that the real problem?

Mr. Sydney Mckenzie Iii: We submit that this statute is a wreck.

This statute and constitutional provision are a recognition of the economic realities of the State of Florida.

Thank you, Gentlemen.

Chief Justice Warren E. Burger: Thank you, Mr. McKenzie.

Mrs. Ginsburg, do you have anything further?

Ms Ruth Bader Ginsburg: Yes, I do.

Chief Justice Warren E. Burger: You have about two minutes remaining.

Ms Ruth Bader Ginsburg: First, I would like to qualify that mobile homes are not subject to the ad valorem property tax.

Article VII, Section 1 of the Constitution exempts, along with motor vehicles, mobile homes.

Then, in --

Justice Potter Stewart: With wheels or without?

This probably isn’t very important but I know in many states there’s an argument about what is a mobile home.

After it comes to rest --

Ms Ruth Bader Ginsburg: Yes.

Justice Potter Stewart: And if the wheels come off it, is it still a mobile home?

Ms Ruth Bader Ginsburg: Also, I would like to qualify the statement made that this tax is subject -- real property and personal property are subject to this tax.

That’s true in the constitutional description, but a statute exempts all household goods and all personal effects for all persons whether or not they’re heads of family, and that’s Florida statute 196.181.

In fact, the legislature has twice extended this constitutional provision that we’re talking about by ordinary statute.

And then, finally, with respect to a point that came out yesterday, recent models for the disposition that appellant seeks in this case include the per curiam opinion last term in New Jersey Welfare Rights Organization against Cahill and early on, Mr. Justice Blackmun’s opinion in Graham against Richardson.

Both of those opinions dealt with constitutionally under-inclusive state rather than federal benefit statutes, and both are cited at page 27 of our main brief and in a footnote at page 8 of our reply brief.

Chief Justice Warren E. Burger: Professor Ginsburg, could I ask a question.

You’re familiar with the DeFunis case to be argued this afternoon?

Ms Ruth Bader Ginsburg: Yes.

Chief Justice Warren E. Burger: This, perhaps, is an unfair question but does your position in this case with respect to the Florida classifications bear in any way on the issues in DeFunis?

Ms Ruth Bader Ginsburg: Not at all.

The DeFunis case raises a very different issue.

DeFunis is a program of a law school that is designed to open doors to equal opportunity, to assure a law student body with diverse backgrounds and experience and to what defy the conspicuous absence of minority groups in the profession.

It is not a welfare, though assumed, based on the assumed inferior capabilities of any population group.

No rigid race line is presented, as we have here, a rigid sex line.

Race is merely one of the many characteristics assessed in that case.

But most significantly, DeFunis involves no general law classification.

It’s a measure addressed to very special selection problem that law schools have.

Law schools have the very hard task of choosing some from among many applicants that are fit to pursue their educational program.

By contrast, here we are dealing with the law, general application of the law with respect to property owners where there can be no justification for the crude device of labeling any group: racial, ethnic, or sexual as needy persons.

And, income tax is readily available to a legislature that wishes to distinguish on the basis of need, and immutable birth characteristic should be irrelevant for general law purposes.

Chief Justice Warren E. Burger: Thank you, Mrs. Ginsburg.

Thank you.

The case is submitted.