WEINBERGER v. WIESENFELD

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Argument of Keith A. Jones

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1892, Weinberger against Wiesenfeld.

Mr. Jones, you may proceed whenever you're ready.

Mr. Keith A. Jones: Mr. Chief Justice and may it please the Court.

This case involves a claim of sex discrimination under the Social Security Act.

Section 202 (g) of that Act provides for the payments of benefits to certain widowed mothers.

There is no comparable provision under the Act for payment benefits to widowed fathers.

The appellee in this case is a widowed father who claims that he is constitutionally entitled to the payment benefits on the same basis as if he were a widowed mother.

It is the Government's position as I will elaborate that at some length later that this statute like the property tax exemption in favor of widows in Kahn against Shevin, serves a permissible legislative objective of ameliorating the harsh economic consequences of economic job discrimination against women and that it should be sustained on that basis.

A description of the operation of the Act is essential to an understanding of this case.

The benefits payable under Section 202 (g) are paid out or on account of the Social Security Account of the diseased wage earner.

The widowed mother receives, I think, a benefit equal to three quarters of the primary insurance benefit that the diseased husband would have received had he lived and retired, reduced $0.50 cents for each dollar that the widow earns in excess of $2,400.00 per year.

The payments are made to the widowed mother so long as she has a minor child in her care and remains unmarried.

Similar benefits are provided under the Act to the child of a diseased wage earner.

A child receives benefits on the basis of the Social Security Account of his or her diseased parent, whether or not the parent is the father or the mother, it makes no difference.

But there is no provision under the Act for the payment of benefits to widowed fathers under the age of 60 on the basis of the account of their diseased wives.

The appellee in this case is a young unemployed widower.

After the death of his wife his child began receiving benefits based upon her Social Security Account.

He however, was not entitled to benefits, he I mean the appellee, was not entitled to benefits himself under the Act.

In view of this, he brought present suit for the declaratory and injunctive relief contending that he was constitutionally entitled to a distribution of benefits on the same basis as if he were a widow rather than a widower.

A three-judge court was convened.

The court determined that all sex based classifications are inherently suspect under this Court's two tiered equal protection analysis that is applied in recent years.

The court analyzed the statute and concluded that it did not served a compelling governmental interest.

And accordingly, the court held the statute on constitutional and ordered the payment of benefits to the appellee as if he were a widow.

The court stayed its order pending this appeal and the case is now here on the government's direct appeal.

At the outset, I think it can be said that the District Court clearly erred in applying the compelling governmental interest standard of review.

It has become clear in these Court's decisions in Kahn against Shevin and last week in Schlesinger against Ballard, that sex based classifications are not inherently suspect.

They're not subject to justification only on the basis of a so-called compelling governmental interest.

They are not invalid per se.

This is not to suggest that the traditionally permissive rational basis standard of review is fully appropriate in all sex discrimination cases.

Sex based classifications we believe do merit close judicial scrutiny and they've received it by this Court in the past in Frontiero against Richardson and Reed against Reed.

This Court struck down the sex classifications that merely served the purpose of administrative convenience.

Plus the Court has applied a standard of review which involves a close scrutiny, a scrutiny which is not so strict as to be inevitably fatal.

The rule that the Court seems to be applying is simply that sex based classifications must rest upon some substantial reasonable basis, or as Chief Justice Burger said in the Reed opinion, “Upon some ground of difference having a fair and substantial relation to the object of the legislation as I will now show the statute here in question easily meets that test.”

Appellee's principle attack on the statute is curiously enough, not from the point of view of the widower who has been denied benefits but rather from the point of view of the female wager who it is alleged is denied of social security coverage for her spouse that would have been granted to a male wager earner.

The appellee's argument proceeds so logistically.

First, the appellee analogizes the payment of Social Security taxes to the purchase of private insurance coverage and the appellee contends that female wager earners are not granted the right to purchase the same insurance coverage that a male wage earner purchases for his spouse under the system.

And appellee's concludes that this discrepancy and treatment -- this discrepancy in insurance coverage is in permissible.

We believe, there are two fatal flaws to this chain of reasoning.

First, the analogy to a private insurance scheme is itself fundamentally erroneous.

As this Court noted in Flemming against Nestor, the Social Security Act comprehends this scheme not of private but of Social Insurance under which, benefits are distributed and coverage provided in large part on the basis of probable need rather than on the basis of strict compe -- rather than strictly on the basis of the contributions that the insured wage earner has paid.

We even, accepting for the moment the private insurer paradigm on which the appellee relies, we think it's nevertheless clear that the female wage earner is not entitled to any additional insurance coverage under the Act that the female wage earner has not been disadvantaged in anyway.

As we pointed out on pages 21 and 22 of our brief, female wage earners under the Social Security system pay in only 28% of all Social Security taxes whereas 34% of the benefits paid out in the system are paid out on the basis of the Social Security accounts of female wage earners.

I'm not talking about the benefits that are paid to women I'm talking about the benefits that are paid out solely on the basis of the women's account as workers.

Now this means that the Social Security System is already out of actuarial balance in favor of female wage earner as against the male wage earner.

If my rough estimatical calculations are correct, right now, the female wage earners receives a 33% greater coverage under the Act, in terms of dollars than does male wage earner.

To grant the additional insurance coverage for which appellee contents here, would simply further tilt the scales in favor of the female wage earner as against her male counter part.

Justice Potter Stewart: How do you account for the existing disparity?

Mr. Keith A. Jones: I think, in large part the disparity flows from the fact that women have longer life expectancies and that their retirement benefits are spread out over a longer period of time.

They may also be attributable in part to the fact that lower wage earners are entitled to somewhat great return under the Act than are higher wage earners and women statistically are lower wage earners.

Like for those two reasons and I'm not sure which is more important, women do received on the basis of their accounts far greater return than the men.

And our position with respect to this argument, this insurance coverage argument by the appellee is that to grant further coverage, to further tilt the scales in favor of women, obviously would not serve the purposes of the Equal Protection Clause.

It therefore, seems to us that appellee's insurance coverage argument simply reduces to the complaint that appellee's individual wife as a wage earner, unlike the average female wage earner has been somehow disadvantaged that the payments made on the basis of her account are in some sense constitutionally insufficient.

There's no merit to this argument either legally or factually.

As a factual matter, I think that you can deduce from the record and that it is clear that appellee's son has already or will soon have received greater benefits under the Social Security Act than his wife ever paid into the system, that there is no ground for reviewing her account as being somehow disadvantaged but more fundamental is a legal matter.

There's no basis for an argument that a Social Security contributor has a vested interest in his or her Social Security account.

That argument which obviously is not a sex discrimination argument was firmly rejected by this Court in Flemming against Nestor in language which, I think is equally appropriate here and I would like to quote, “The Social Security System maybe accurately describe as a form of Social Insurance whereby person's gainfully employed and those who employ them are taxed, to permit the payment of benefits to the retired and the disabled and their dependents.”

A non-contractual interest of an employee covered by the Act cannot be soundly analogized to that of a holder of an annuity. His right to benefit is bottomed on his contractual premium payments.

And therefore, I think its clear that appellee's wife as a female wage earner, was not disadvantaged either in her individual capacity or as a member of a class under the Act, that she was not the subject -- was not the victim of any cognizable discrimination under Act.

For that reason, I now turn to the appellee's alternative argument which is based upon the contention that the denial of benefits to a widower constitutes a denial of equal protection to men as an impermissible discrimination against men.

That argument it seems to us, is foreclosed by this Court's decision in Kahn against Shevin.

In that case, this Court upheld a special Florida property tax exemption that was granted only to widows and not to widowers.

The objective of that legislation is like that of the statute here was to ameliorate some degree the economic difficulties that uniquely confront the lone woman who has lost her husband.

The Court in that opinion recited statistics showing that the average female workers are in approximately 40% of the income of the average male worker.

And the Court noted that this disparity in the economic capabilities would be exacerbated in the case of a widow vis-a-vis a widower and that the difference in earning power between a widow and widower was probably even greater to that between women and men generally.

Mr. Justice Douglas writing for the Court in that case observed that while the widower can usually continue in his occupation, in many cases, the widow will suddenly find herself forced into a job market with which she is unfamiliar and in which, because of her former economic dependency, she will have fewer skills to offer.

And it's also clear that, the discrimination inherent in such a statute between widows and widowers is not impermissible.

As Mr. Justice Brennan, who is dissenting on other grounds in that case, observed it's permissible to distinguish between widows and widowers because only the former and not the latter are subject to discrimination as a class.

And if I may quote again from the descending opinion, “Inclusion of needy widowers would not further the state's overriding interest in remedying the economic effects of past sex discrimination of needy victims of that discrimination.

No doubt some widowers are in financial need, no one suggests that such need results from sex discrimination.”

On the basis of these considerations, the Court in this case, Kahn against Shevin, upheld the Florida statute as resting upon some ground of difference having a fair and substantial relation to the object of the legislation.

Well, precisely the same considerations govern this case.

Congress recognized that the probable need of widows is greater than that of widowers and then enacted Section 202 (g) to provide for that need.

In doing so, Congress merely acted as it has also done in behalf of other persons such as aged dependent parents, who cannot be fairly expected to replace by their own efforts in the job market the loss of support that has been occasioned by the death of a family wage earner.

Moreover, this provision, Section 202 (g), does not suffer from the vice of over inclusiveness that led two justices of this Court to descent from the ruling in Kahn.

The amount of the benefits payable under Section 202 (g) is inversely correlated to the amount of the widow's earnings.

So that the women, who has in fact successfully surmounted, sexual job discrimination is not provided benefits under this Act.

Similarly, benefits are provided only to the widow with a minor child in her care for whom the economic consequences or job discrimination are heightened by the fact that she must additionally provide competent child care during the working hours.

At the same time, the benefits provided under the statute are considerably more substantial than those that were granted by the property tax exemption in Kahn.

Therefore, it seems clear to us that Section 202 (g) serves the permissible legislative objective of ameliorating the economic consequences of the employment discrimination that widows with children suffer with heightened severity, and that does both more thoroughly, and more carefully than the statute at Kahn against Shevin.

I would add at this point only one final point.

At the bottom, the appellee's argument here is that benefits under the Social Security Act must be distributed without regard to sex equally to men and women in all cases.

Although, we realize that program costs cannot be determined even a case such as this, we feel that it is nevertheless not without some significance that the cost of achieving this objective of paying out all benefits without regards to sex would be approximately $350,000,000.00 additional dollars per year.

Now these statistics are set fort on page 15 of the appendix.

This additional money would have to come from somewhere.

The Social Security System is supposed to remain in actuarial balance.

Therefore, to pay out these additional benefits either Social Security taxes would have to be increased or some other benefit group with the benefits payable to some other group would have to be reduced.

In this context, that we feel that this Court's statement in Dandridge against Williams is particularly appropriate.

That is that it does not sit to second guess officials charged with difficult responsibility of allocating scarce public welfare funds among the merit of potential recipients.

Now, to apply a judicial restrain of this kind in a case like this is not however to place the Social Security System in the iron grip of the status quo.

Congress has recently considered sex based classifications under the Act and it has amended the statute to eliminate one of the major sex based classifications like providing for the equalization of the method of computing retirement benefits for men and women.

And it may well act to further reduce or ultimately entirely eliminate all sex classifications under the Act.

But for the present we feel that it's clear that the exclusion of widowers under Section 202 (g) lies well within Congress' constitutional power to allocate welfare funds.

For these reasons we respectfully submit that the judgment below should be reversed.

Justice Potter Stewart: Mr. Jones --

Mr. Keith A. Jones: Yes.

Justice Potter Stewart: Do they remain in this Act any differentials based upon gender as to age, another basic one as eliminated in 1972?

Mr. Keith A. Jones: That was the only one that I am aware of.

I don't think they are anymore that remain.

It -- well, on age exclusively now there are some provisions that discriminate between men and women on the basis of age.

For example, a widower over age 60, I mean, in some cases may be entitled to benefits for as a widow might be entitled to benefits at an earlier age.

Justice Potter Stewart: Without regard the children?

Mr. Keith A. Jones: Without regard to children, that's right.

But I don't think there are many significant age qualifications in the Act of --

Justice William J. Brennan: Well, apart from widows and widowers is there another distinction that women beneficiaries on retirement that there is computed -- may retire at age 62 for as on male is at age 65?

Mr. Keith A. Jones: This was the difference that was eliminated in the 1972 Act.

Justice Potter Stewart: Who did that?

Mr. Keith A. Jones: The Congress.

Justice Potter Stewart: It's on page 15 of your appendix, under the --

Mr. Keith A. Jones: That's correct.

Pages 14 through 16 discussed the --

Justice William J. Brennan: Well, it might be but haven't you brought a case here and that we having for pending cert?

Mr. Keith A. Jones: Well, we have moved to affirm the judgment of the three judges from the Court.

Justice William J. Brennan: I know but there is such a case here, isn't it?

Mr. Keith A. Jones: That's correct.

That that's on a basis of a claim of man who are retired earlier and the --

Justice William J. Brennan: Before the -- the 1972 Amendment has now become effective until this year?

Mr. Keith A. Jones: They're not retroactive.

That's correct.

Justice William J. Brennan: And it may become effective in 1975?

Mr. Keith A. Jones: I think they were phased in over a period of time.

Justice William J. Brennan: This rather petition this morning and what you tell us there is that it become effective this year.

Justice Potter Stewart: Now, let's say a new provision will become effective starting January 1973 and will be fully effective in January 1975.

Mr. Keith A. Jones: Yes.

I think that it is phased in over three years.

It does become fully effective this year, that's correct.

Chief Justice Warren E. Burger: The Congress there elected to ignore the difference in longevity of women over men?

Mr. Keith A. Jones: Well, in fact men were disfavored under the old law and --

Chief Justice Warren E. Burger: But the point is, they ignored the fact that women as category live longer than men?

Mr. Keith A. Jones: That's correct.

Chief Justice Warren E. Burger: And that's within their legislative discussion, I supposed you would say --

Mr. Keith A. Jones: Yes.

Chief Justice Warren E. Burger: They can ignore it or they act on it?

Mr. Keith A. Jones: That's right Mr. Chief Justice Burger.

We don't think the constitutional places Congress in a straight jacket with respect to the determination of distribution this wealth for benefits.

We think either alternative is acceptable under the constitution.

Justice Potter Stewart: Through the old -- the old law was more commensurate with the idea that men lived longer than women.

Mr. Keith A. Jones: Yes, an assumption which, if ever true, is no longer --

Chief Justice Warren E. Burger: Well, that isn't supported that the American experience table of mortality or never has been, is it?

Mr. Keith A. Jones: Not that I know of.

Justice William J. Brennan: Well, what was it the basis that they argued the distinction between 62 and 65 under the old law is to favor compensated disfavored class?

Mr. Keith A. Jones: It did have the effect of providing women --

Justice William J. Brennan: Was it that the Government's argument?

Chief Justice Warren E. Burger: Congressional theory?

Mr. Keith A. Jones: I'm not sure exactly what the Government's argue was in the motion to -- we maybe speaking of different cases.

The one I have in mind is called Kohr against Weinberger.

Justice William J. Brennan: I remember it by name.

Mr. Keith A. Jones: But of course, Congress doesn't have to locked into favoring disadvantaged classes.

If there are no further questions I would like to reserve my remaining time.

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

Mrs. Ginsburg.

Ms Ruth Bader Ginsburg: Mr. Chief Justice and may it please the Court.

Steven Wiesenfeld's case concerns the entitlement of a female wage earner, a female wage earners family to Social Insurance of the same quality as that accorded to the family of a male wage earner.

Four prime facts of the Wiesenfeld family's life situation bears special emphasis.

Paula Wiesenfeld, the diseased insured worker, was gainfully employed at all times during the seven years immediately preceding her death.

Throughout this period, maximum contributions were deducted from her salary and paid to Social Security.

During Paula's marriage to Steven Wiesenfeld, both were employed.

Neither was attending school and Paula was the family's principal income earner.

In 1972, Paula died giving birth to her son Jason Paul, leaving the child's father Steven Wiesenfeld with the sole responsibility for the care of Jason Paul.

For the eight months, immediately following his wife's death and for all but the seventh month period thereafter, Steven Wiesenfeld did not engage in substantial gainful employment.

Instead, he devoted himself to the care of the infant Jason Paul.

At issue is the constitutionality of the gender line drawn by 42 U.S.C. 402 (g), the child in care provision of the Social Security Act.

However, it's established this child and care insurance in 1939, as part of that year's conversion of Social Security from a system that insured only the worker to a system that provided a family basis of coverage.

The specific purpose of 402 (g) was to protect families of deceased insured workers, by supplementing the child's benefit provided in 42 U.S.C. 402 (d) with the deceased insured worker as male.

The family is afforded the full measure of protection, a child's benefit under 402 (d), and a child in care benefit under 402 (g).

Whether deceased worker is female, family protection is subject to a 50% discount.

A child in care benefit for survivors of a female insured worker is absolutely excluded even though as here the deceased mother was the family's principle bread winner.

This absolutely exclusion, based on gender per se, operates to the disadvantage of female workers, their surviving spouses and their children.

It denies the female worker social insurance family coverage of the same quality as the coverage available under the account of a make worker.

It denies the surviving spouse of the female worker.

The opportunity to care personally for his child and opportunity afforded the surviving spouse of a male worker and it denies the motherless child an opportunity for parental care, afforded the fatherless child.

It is appellee's position that this three-fold discrimination violates the constitutional rights of Paula, Steven, and Jason Paul Wiesenfeld to the equal protection of the laws, guaranteed to them with respect to federal legislation by the Fifth Amendment.

The care with which the judiciary should assess gender lines drawn by legislation is currently a matter of widespread uncertainty.

The District of Columbia Court of Appeals recently observed in while Waldie v. Schlesinger, decided November 20, 1974, precedent is still evolving and existing decisions of this Court are variously interpreted by the Lower Courts.

Appellant had urged in his brief, that it would be sufficient if any rationality can be conceived for the overt sex discrimination operating against the Wiesenfeld family.

But this Court acknowledged in Reed v. Reed, 404 US that the legislative objective there in question, producing probate court work loads did not lack legitimacy.

Yet, in light of the differential, based on gender per se the Court required a more substantial relationship between legislative ends and means so that men and women similarly circumstanced would be treated alike.

Again, in the Court's eight to one judgment in Frontiero v. Richardson, 411 US requiring the same fringe benefits for married men and women in the military, the Court evidenced a concern to analyze gender classifications with a view to the modern world and to be weary of gross, archaic, overbroad generalizations.

As in the case at Bar, in Frontiero, the underlying assumption was wives are typically dependent, husbands are not.

Hence, the statutory scheme in this case, as this scheme in Frontiero, favors one type of family unit over another and in both cases, the basis for the distinction is that in the favored unit the husband‘s employment attracts the benefit in question.

Where the bread winner is male, the family gets more, and where the bread winner is female, the family gets less.

Kahn v. Shevin, 416 US and Schlesinger v. Ballad, this Court's most recent expression, are viewed by some as reestablishing a slack or a cursory review standard, at least when the defender of the discrimination packages his argument with the protective or remedial libel.

Kahn approved Florida's $15.00 real property tax saving for widows.

The decision reflects this Court's consistent difference to State policy in areas of local concern such as State tax systems, domestic relations, zoning, disposition of property within the state's boarders.

By contrast national workers insurance and no issue of local concern, is in question here.

The differential in Schlesinger v. Ballard, this Court appointed out, did not reflect archaic, overbroad generalizations of the kind involved in Frontiero or in the instance case.

Indeed, there might have been a certain irony to a ruling in Lt. Ballard's favor.

To this day, women seeking careers in the uniform services are barred by Federal Statute and regulations from enlistment training and promotion opportunities open to men.

The Courts majority thought it a mismatch for Federal Law to mandate unequal treatment of women officers, denial to them of training and promotion opportunities open to men, a denial not challenged by Lt. Ballard, but to ignore that anterior discrimination for promotion and tenure purposes.

Perhaps most significantly, Kahn and Ballard are among the very few situations where a discriminatory advantage accorded some women is not readily perceived as a double-edged sword, a weapon that strikes directly against women who chose to be wives and mothers and at the same time to participate as full and equal individuals in a work centered world.

But there could not be a clear a case then this one of the double-edged sword in operation of differential treatment accorded similarly situated persons based grossly and solely on gender.

Paula Wiesenfeld, in fact the principal wage earner, is treated as though her use of work were of only secondary value to her family.

Steven Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function and Jason Paul, a motherless infant with the child -- with the father, able and willing to provide care for him personally is treated as an infant not entitled to the personal care of his sole surviving parent.

The line drawn is absolute, not merely a more onerous test for one sex than the other as in Frontiero and Stanley v. Illinois, 405 US.

And a shout out is more extreme then it was in Reed, where a woman could qualify as administrator, if the man who opposed her, were closely related to the decedent.

This case, more than any other, yet heard by this Court, illustrates the critical importance of careful judicial assessment of law reinforced sex role pigeon-holing defended as a remedy.

For any degree of scrutiny that is more than cursory.

402 (g)'s conclusive presumption, automatically and irrebuttably ragging husband principal bread winner displays the pattern, Justice Brennan identified in Frontiero.

In practical effect, laws of this quality help to keep women not on the pedestal but in a cage.

They reinforced not remedy, women's inferior position in the labor force.

Appellant has pointed out that women do not earn as much as man and urges that 402 (g) response to this condition by rectifying past and present economic discrimination against women.

This attempt to wrap a remedial rational around a 1939 statute, originating in and reinforcing traditional sex based assumptions should attract strong suspicion.

In fact, Congress had in view male bread winners, male heads of household, and the women and children depended upon them.

Its attention to the families of insured male workers, their wives, and children is expressed in the scheme that heaps further disadvantage on the woman worker far from rectifying economic discrimination against women.

The scheme conspicuously discriminates against women workers by discounting the value to their family of their gainful employment and it intrudes on private decision making in an area in which the law should maintain strict neutrality for when federal law provides a family benefit base on a husband's gainful employment, but absolutely bars that benefit base on a wife's gainful employment.

The impact is to encourage the traditional division of labor between man and woman to underscore twin assumptions; first, that level for paying including attendant benefits is the prerogative of men; and second, that women but not men, appropriately reduce their contributions in the working life to care for children.

On another day, the pernicious impact of gender lines, like the one drawn by 402 (g), was precisely an accurately discerned by appellant, in common with every Government agency genuinely determined to breakdown artificial barriers and hindrances to woman's economic advancement.

Appellant has instructed that employer's fringe benefit and pension schemes must not presume, as 402 (g) does, that husband is head of household or principal wage earner.

It is surely irrational to condemn this sex line as discriminating against women when it appears in an employer's pension scheme while asserting that it rectifies such discrimination, when it appears in workers social insurance.

Justice Potter Stewart: You say the appellant has taken these inconsistent positions.

I assuming, he was -- it wasn't just his idea --

Ms Ruth Bader Ginsburg: He was --

Justice Potter Stewart: -- promulgating that for private pension schemes, but that he was carrying out his understanding of a federal statute?

Ms Ruth Bader Ginsburg: He was carrying out inconsistent congressional commands.

Guidelines that he issued pursuant to Title IX of the Education Amendments of 1972 --

Justice Potter Stewart: Right.

Ms Ruth Bader Ginsburg: -- forbid recipients of federal money from making distinctions of this kind.

In sum, the prime generator of discrimination accounted by women in the economic sector is the pervasive attitude, now lacking functional justification that pairs women with children, men with work.

This attitude is short of and reinforced by laws of the 402 (g) variety, laws that tell a woman how employment is less valuable to and supportive of the family then the employment of a male worker.

Surely, Paula Wiesenfeld would find unfathomable, it's attempt to cast the compensatory cloak over the denial to her family of benefits available to the family of a male insured nor does appellant's rationalization for discrimination even attempt to explain why Jason Paul, child of a fully insured deceased worker can have the personal care of his sole surviving parent only if the deceased wage earning parent was male.

Appellant has asserted that providing child and care benefits under a female worker's account would involve fiscal considerations.

The amount involved is considerably less than was indicated some moments ago.

He estimates the cost for this particular benefit to be 0.01% of taxable payroll in the appendix at 16, and other differentials are not now before this Court.

At the same time he maintains --

Justice Potter Stewart: Are you familiar, Mrs. Ginsburg with the little of chart on the top of page 15 on the appendix?

Ms Ruth Bader Ginsburg: Yes, I am.

Justice Potter Stewart: Could you tell us which one of these are we talking about?

Ms Ruth Bader Ginsburg: We are talking about --

Justice Potter Stewart: Which number?

Ms Ruth Bader Ginsburg: Three.

Justice Potter Stewart: Three?

Ms Ruth Bader Ginsburg: We are talking about three, that's right.

The number of person affected 15,000 thousand, estimated benefit --

Justice Potter Stewart: $20 million.

Ms Ruth Bader Ginsburg: $20 million, right and that is the only one we're talking about in this case.

Justice Potter Stewart: And the -- well --

Ms Ruth Bader Ginsburg: Of course, there is someone in consistent argument made and that is that the bulk of widowed fathers would not qualify for child and care benefits in any event according to appellant because unlike Stephen Wiesenfeld, they would not devote themselves to child care, but rather to gainful employment.

Budgetary considerations --

Justice Potter Stewart: And the children have to be under what, 18?

Ms Ruth Bader Ginsburg: Yes.

A child has to be a child entitled to child's benefit under the Act.

Justice Potter Stewart: Which means among other things that he is under 18?

Ms Ruth Bader Ginsburg: Yes.

Budgetary considerations to justify invidious discrimination should fair no better in this case than such considerations faired in cases in which relatively larger cost savings were involved.

For example, New Jersey Welfare Rights Organization against Cahill, 411 US summarily reversing 349 federal supplement.

Chief Justice Warren E. Burger: What is the justification for benefits with respect to children, persons under age 18 as distinguished from having a line at 21 or 24 or some other age?

Ms Ruth Bader Ginsburg: I don't know why the age line was set, but it's for all benefit purposes under the Social Security Act.

I think a distinction is made if a child is attending school after 18, but I'm not certain of that.

Chief Justice Warren E. Burger: But you don't need a baby sitter for --

Ms Ruth Bader Ginsburg: No, you certainly don't.

Chief Justice Warren E. Burger: While at 14, 16, and 18 year old people, do you?

Ms Ruth Bader Ginsburg: That's right.

And whether that Congress has gone too far in that direction is not of concern here.

Certainly, it has not gone too far when it considers that an infant such as Jason Paul Wiesenfeld, might benefit from the personal care of a parent.

Chief Justice Warren E. Burger: Well, is there any possibility that the reasoning for his claim depends somewhat on this age factor?

Ms Ruth Bader Ginsburg: The reasoning for --

Chief Justice Warren E. Burger: The justification?

If the justification is not warranted would that enter into it?

Ms Ruth Bader Ginsburg: Presumably, the greatest need is for very young children, preschools children, and in many cases, the sole surviving parent, male or female, may not avail herself as the statute now stands of this benefit once the child gets beyond preschool age or school age.

Remember that this is not a benefit that is paid automatically no matter what.

There is an income limitation.

Once you earn beyond, it was $2,400.00, $1.00 a benefit is removed for ever $2.00 earned.

So, the parent who receives this benefit must be performing that function, must be performing the child care function.

Chief Justice Warren E. Burger: I suppose we're not confronted with that each problem unless a 19 year old brings at equal protection benefit sometime?

Ms Ruth Bader Ginsburg: Well, but 18 years as the voting age now, I think that that is probably unlikely, but in any event, comparing the cost analysis here with the New Jersey Welfare Rights Organization case, that case involved a wholly state funded program for aid to families of the working poor.

This Court declared unconstitutional limitation of benefits under that program to families with wed parents.

Unlike New Jersey Welfare Rights Organization, the case at Bar presents no issue of federal difference arguably due to state family law policy or any other local concern.

And surely, leeway for cost saving is no broader in federal workers insurance than it is in a wholly state financed and operated welfare program, a program funded by general state revenues rather than by contributions of insured workers and their employers.

Budgetary policy like administrative convenience simply cannot provide a fair and substantial basis for a scheme that establishes two classes of insured workers, both subject to the same contributions work rate.

Male workers, whose families receive bulk protection and female workers whose families receive diminished protection.

Finally, the appropriate remedy is correctly specified in the judgment below.

That judgment declares the gender line at issue unconstitutional because it discriminates in violation of the Fifth Amendment against gainfully employed women such as Paula Wiesenfeld as well as against men and children who have lost their wives and mothers.

The judgment enjoins enforcement of the statute insofar as it discriminates on the basis of sex.

Extension of child and care benefits under Paula Wiesenfeld's account is unquestionably the cause consistent with the dominant congressional purpose to insure the family of deceased workers and the express congressional concern to ameliorate the plight of the deceased worker's child by facilitating a close relationship with the sole surviving parent.

Unequal treatment of male and female workers surely is not a vital part of the congressional plan.

Withdrawal of benefits from female parents who now receive them would conflict with the primary statutory objectives, to compensate the family unit for the lost of the insured individual, and to facilitate parental care of the child.

Under the circumstances, extension of benefits to the surviving spouse of female insured workers, to the father who devotes himself to child rearing is the only suitable remedy.

It accords with the express remedial preference of Congress in all recent matches of eliminating gender base differentials.

For example, 5 U.S.C. 7152 cited at pages 39 to 40 of our brief and with this Court's precedent in such cases as US Department of Agriculture v. Moreno, 413 US, New Jersey Welfare Right Organization against Cahill, 411 US and Frontiero v. Richardson, 411 US.

I did want to comment very briefly on the point made with respect to woman receiving social security benefits that exceed the amount of their contribution.

The reason for this, the prime reason of course, is that women live longer than men.

Most benefits are paid to retirement age beneficiaries and women happened to be 58% of the population of persons over 65 that increases in time there about 54.5% of the 65-year olds, 58.5% of the 75-year olds, and about 64.5% of the 85-year olds.

But the critical point here is that payments to the elderly are based on the individual's life span not on his or her sex.

So, that if a man should live to a 100, he will continue to receive benefits and he won't be told, “Oh!

Too bad, you should have died earlier, only women receives payments for that length of time.”

In sum, appellee respectfully requests that the judgment below be affirmed, thereby establishing that under this nation's fundamental law, the Woman Workers National Social Insurance is no less valuable to her family than is the social insurance of the working man.

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

Do you have any further Mr. Jones?

Mr. Keith A. Jones: Yes, thank you Mr. Chief Justice.

First, I would like to correct the typographical error on page 15 of the appendix.

In item number two, it says eliminate the dependency requirement of Section 202 (d) that should be 202 (f).

I point out that the appellee here is distinguished Kahn against Shevin which we rely or tried to distinguish it only on two basis.

One is by relying upon the private insurance paradigm that female wage earners are entitled to a certain amount of insurance coverage.

I discussed that at length in my opening argument.

Second is that, Kahn in some sense of represents difference towards state taxing policies that appellee claims would not be due to federal welfare policies.

I don't understand it's now analytical matter by federal distribution of public welfare funds should not be entitled to the same difference, state taxing policies.

Appellee also argues that, the child here somehow has rights independent from that of either parent.

I see no basis for that.

The child has his own benefits under the Act.

His only claim here is that one of his parents didn't get benefits.

That claim is derivative from the claim of the parent, cannot be analyzed separately.

Justice Potter Stewart: The thought of a third party beneficiary, you mean?

Mr. Keith A. Jones: That's right.

Justice Potter Stewart: You mean the purpose of giving benefits to the parent is so that he can stay home and take care of the child, right?

Mr. Keith A. Jones: Well, I don't think that this legislative history backs that up necessarily that legislative --

Justice Potter Stewart: What is its purpose then?

Mr. Keith A. Jones: Well, legislative history shows that the purpose of the statute was to distribute benefits in accordance with the probable new of beneficiaries and was made on the individual and not on the family basis.

And it simply represents the judgment that women who seek employment or less likely to find it than do men and that if they do find it, they likely to earn less than do men.

Justice Potter Stewart: Yes, but this doesn't unless I can -- if there were no children?

Mr. Keith A. Jones: If there were no children there --

Justice Potter Stewart: At those -- those conditions, those presumptive conditions would still prevail, wouldn't they?

Mr. Keith A. Jones: If there are no children.

The problems of job discrimination at least would not be exacerbated by the need to provide child care during the working hours.

There is, I think, the justifiable difference between treatment of widows generally and the widows with minor children.

If there are no further questions.

Thank you.

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

Thank you, Mrs. Ginsburg.

The case is submitted.