CALIFANO v. GOLDFARB

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Argument of Keith A. Jones

Chief Justice Warren E. Burger: We will hear argument next in 75-699 Mathews against Goldfarb.

Mr. Jones, you may proceed whenever you are ready.

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

This case is here on appeal from the United States District Court for the Eastern District of New York.

The issue concerns the imposition of a support test on widowers, but not widows as a condition on eligibility for Social Cecurity survivors’ benefits.

The appellee is a retired federal employee and a widower.

Following the death of his wife he applied for Social Security widower’s benefits, under his deceased wife’s earnings account.

That is he sought to tack Social Security retirements benefits, Social Security survivors’ benefits on to his existing civil service pension.

If appellee had been a private employee rather than a civil servant, he would not have been able to tack benefits in this way even without regards of the support test he challenges here.

Reason for this is that both widows and widowers to be eligible for survivors’ benefits must pass what may for convenience be called the PIA test.

PIA refers to the Primary Insurance Amount, which is the maximum monthly old age benefit to which a veteran is entitled under his or her own earnings account.

Only a survivor whose PIA is less than that of the deceased spouse is entitled to a survivors’ benefits and it is undisputed that if appellee’s lifetime earnings have been covered by Social Security, he could not have passed this test.

The PIA test bars a widower from tacking a smaller survivors’ benefit on to an existing Social Security old age benefit.

The theory behind this rule is that Social Security benefits are not vested rights, but are payable on the basis of probable need.

If a widower is already receiving old age benefits in access of the survivors’ benefits to which he would otherwise be entitled, he probably is not needy.

But the PIA test standing alone is insufficient, inadequate to weed out non-needy federal pensioners, such as appellee.

It is inadequate to weed out this category of non-needy widowers.

To achieve this end of weeding out such widowers, Congress has imposed a second test, the support test that is at issue in this case.

Under this test a widower must prove that he was receiving more than one half of his support from his wife at the time of her death, disability or retirement.

The practical effect of the support test is suggested in the Appendix to our Brief.

In short, if the support test were eliminated, approximately $447 million annually would be required to be distributed to non-needy widowers and out of this from $300 million to $350 million would be required to be distributed to non-needy pensioners such as appellee.

Justice Potter Stewart: Mr. Jones, it is been a while that I have read these briefs in this case, they might write in understanding that the basic PIA test is applicable alike to males and females.

Mr. Jones: That is correct Mr. Justice Stewart.

Justice Potter Stewart: That is only this additional test that differentiates...

Mr. Jones: That is correct, it is correct.

Justice Potter Stewart: ...between men and women.

Mr. Jones: The problem in this case is that the support test does not apply to women.

A widow age 60 year older who passes the PIA test is entitled to survivors’ benefits without regard to support.

Thats is a woman, similarly situated to appellee that is a retired female civil servant whose husband’s lifetime employment had been covered by Social Security, would be entitled to survivors’ benefits and this loophole in the Social Security law does not appear ever to have received explicit congressional attention.

And it is upon the existence of this loophole that creates different treatment for this small narrow class of men and women upon which appellee’s case largely depends.

Justice John Paul Stevens: Mr. Jones I am also a little rusty on the case.

This $440 million figure which applies to the small narrow class, is that based anything on the record or is that something you have developed subsequently just in the briefs here?

Mr. Jones: It is not in the record Mr. Justice Stevens.

The methodology underlying the estimate is spelled out in the Appendix to our Brief on the merits.

The amount involved was not for an issue in the District Courts as far as I understanded it.

The appellee could not pass the support test, he had not in fact been dependent upon his wife and for that reason he was denied widower's benefits.

He then brought this suit in District Court and the District Court declared the support test as to widowers unconstitutional.

Relying in large part upon this Court’s opinions in Wiesenfeld that is Weinberger against Wiesenfeld and Frontiero against Richardson.

Before turning to a discussion of those two cases which underpin the appellee’s arguments here, I would like to make some general observations about the appellee’s arguments on the merits.

Although appellee is a man and it is the denial of benefits to himself that he complains of, he has sought to portray the statutory classification as discriminating principally against women.

He contends that the real discrimination here is against the deceased working wives whose widowers must now prove support.

That is largely against the deceased working wives of civil servants.

Of course, as an analytical matter the discrimination if any, bears equally upon these widowers and their deceased working wives.

These two categories, one male and one female, necessarily are present here in a one to one ratio.

That suggests that this case does not involve sex discrimination at all, but rather discrimination, if any, against certain kinds of families that is appellee’s kind of family.

But putting that aside at a minimum, all other things being equal, the choice of which sex to characterize is the disadvantage class here would appear to a matter of purely rhetorical significance, yet all other things are not equal.

There is no legislative motive here to discriminate against women.

Congress plainly designed the support test, simply to deny benefits to non-needy widowers, such as appellee.

The difference in treatment is aimed at men not at women.

Since this is so it may seem all the more puzzling, why the appellee has worked so hard to characterize the support test as discriminating principally against women.

But there are suspect three good reasons for this approach.

First, appellee is attempting to obscure the fact that what he seeks here is a double benefit that is it is a windfall in a nature of Social Security survivors’ benefits on top of the civil service pension.

Justice Potter Stewart: Yeah, but if he were -- if the genders were reversed she would get this windfall, right?

Mr. Jones: That is correct Mr. Justice Stewart that is the loophole.

Widows would get the benefit.

Justice Potter Stewart: Well, anytime if somebody does not like a provision of the law he calls it a loophole, this is a provision of the law.

Mr. Jones: Sometimes they call it unconstitutional.

But it does seem to me that the appellee understandably seeks to divert the Court’s attention away from the obvious rationality of Congress’ decision to deny him this double benefit.

In that purpose I would like to frustrate that it is claimed here that what he seeks is a windfall.

It is true, it is a windfall that is available to women and of a special narrow class, but that does not mean it is a constitutional matter.

It should also be made available to him.

Justice Potter Stewart: Well that is the question in this case, isn’t it?

Mr. Jones: That is correct Mr. Justice Stewart.

I think the second reason that the appellee seeks to characterize this as a women’s rights case, but that the cause of women’s is now a fashionable one and the appellee seeks to ride on its skirt tails, but it is the responsibility of this Court to act on the basis of what reflects a proper accommodation of the respective roles of Congress and the Courts and not to act on the basis of what maybe favored by the shifting tides of extra judicial legal fashion.

But the third reason by appellee maybe characterizing this as a women’s rights case is the one that disturbs me the most.

Appellee maybe implicitly suggesting, that the rights of women are constitutionally entitled to higher protection than the rights of men.

As a lawyer and as a member of the class that would thereby be disadvantaged I would urge this Court to reject any such settled suggestion.

Women constitute a majority of the voting age population in this country, unlike racial minorities for example, women have the political power, if they choose to use it to remedy any statutory inequality of which they perceive themselves to be the victims.

In short, women are not a discrete insular minority that requires special judicial protection against an indifferent or a hostile legislature.

This is not to say that women have not been subject to legal and social discrimination in the past.

That history of discrimination justifies remedial legislation that extends to women certain benefits or opportunities that may not be made available on the same basis to men.

This Court so held in Kahn against Shevin, but further than that, the Courts may not go.

Men and women are entitled to the same stature under the constitution.

The ssame constitutional analysis must apply whether the discrimination of which appellee complaints is directed against men or against women.

With these preliminary thoughts in mind, I would now turn to discussion of this Court’s opinions in Frontiero and Wiesenfeld.

Statutory classification at issue in Frontiero was conceitedly, superficially quite similar to the one involved here.

But superficial similarities of that kind are largely irrelevant to equal protection analysis.

At the heart of any equal protection inquiry is whether the challenge classification is rationally related to a permissible and a substantial legislative objective.

In Frontiero the differential treatment accorded men and women, furthered no objective other than mere administrative convenience.

The Government so conceited and this Court so held, and that objective the Court held was insufficiently substantial that justified the difference in treatment.

That rationale is not applicable here.

The statutory classification challenged here is not routed in mere administrative convenience.

Instead, as I will show momentarily, the classification reflects Congress’ legitimate efforts rationally to allocate source that scarce, Social Security’s moneys on the basis of the probable needs of competing classes, special beneficiaries.

Yes Mr. Justice Stevens.

Justice John Paul Stevens: Would it not be correct that the decision not to require a support test in the converse situation is just justified by administrative convenience?

Mr. Jones: It is justified by several factors and administrative convenience is one of them.

Justice John Paul Stevens: What are the others?

Mr. Jones: It is not rooted in the administrative convenience.

Well, the rational bases or the social welfare considerations on which the Government relies here are spelled out at length at Pages 15 to 36 of our main Brief.

But I can summarize them here.

The Social Security provisions for widows and widowers have a separate and different history.

In 1939, Congress determined to pay monthly benefits to those groups of survivors whose probable need was the greatest and it identified those groups, its elderly widows, dependent children and aged dependent parents and although a major purpose of the support test, excuse me, of the survivors’ benefits was to replace the support lost by a dependant upon the death of the wage earner.

Congress did not restrict widow’s benefits to those women who were in fact dependant upon their husbands and the reasons for this Mr. Justice Stevens were too full.

First, in 1939 and for many years thereafter, very few aged women were in fact economically dependent upon their husbands and to impose the support test, would have placed a substantial burden upon all of those widows and upon the administrative agency as well.

That burden would have been incurred to weed out a very small percentage of non-dependent women.

The appellee here conceits, that the imposition of the support test upon widows would entail, and I quote from Pages 65 and 68 of his Brief, "an exorbitant administrative burden, a potentially monstrous proportion".

That is the appellee’s language that is not our language, so that to some extent Mr. Justice Stevens, you are correct that the extension of benefits to women does have some basis at administrative convenience, but at the same time, the non-dependent women who would have been weeded out by a support test, are very likely to have been needy in any event.

Then the women who had passed the support test that is the women who receive less than half their support from their husbands are very likely to have been either deserted or to have been living in other circumstances of substantial need.

Very few aged widows were truly self sufficient and it was both reasonable and should remain for Congress to extend widow's benefits to these women without regard to dependency.

Justice John Paul Stevens: Does not your argument suggest that there is not necessarily a correlation between the ability to pass the support test and probable need at the time of the applicant applies for benefits?

Mr. Jones: That is certainly true as to widows and it was truer perhaps, in 1939 than it is today.

But at that time -- and I must confess that these statistics are very rough, but at that time, it is a fair inference that considerably fewer then 10% of all women would have passed the support test at any given point in time. Not only…

Justice John Paul Stevens: Would have thought for support test.

Mr. Jones: Would have thought for support test, that is correct.

They would have been non dependent, that is correct.

At any given point in time, at any point during their employment history.

As to women age 55 and older, there was a decrease in their participation in the job market.

So that, it would be considerably less than 10% for this age group, but not only that, these are women who probably did not work over the full course of their working lives, who may have worked sporadically, but who probably did not build up substantial social earnings, entitlements or other retirement benefits, so that has to these -- as to this class of working women, it is a fair assumption I think that even those women who were non dependent at the critical point, still existed in circumstances of need.

Now, the same is not true I submit generally as to widowers.

A program of widower’s benefits was established later in 1950 and at that time, Congress reasonably identifies as presumptively needy only those widowers who had been dependent upon their wives for support.

With few exceptions, non-dependent men either had substantial Social Security entitlements or they had been gainfully employed in positions outside the Social Security systems like the appellee, and they therefore, fell outside the category of probable need.

The support test served to weed out approximately 97% of all widowers, whereas they would have only weeded out less than 10% of widows, and if the support test had not been imposed from 75 to 90% of the additional moneys, that would have been required to be paid out, would have been paid to non-needy pensioners such as the appellee, and Congress rationally chose not to spend its scarce Social Security moneys in that manner.

Justice Byron R. White: But I suppose there are some widowers who are needy, but who cannot pass the support test.

Mr. Jones: It depends upon what you mean by needy Mr. Justice White, it is conceivable that there may…

Justice Byron R. White: I mean what is considerable as a support test, what is the purpose of the support test in the first place?

Mr. Jones: To weed out the non needy basically.

Justice Byron R. White: Oh, yes to weed out the needy which implies that there are some that are not needy or you would not have to weed anybody out.

Mr. Jones: Well, I think as a practical matter -- well, it implies that some are not -- excuse me, I misunderstand you, implies that some widowers are not needy…

Justice Byron R. White: Well, my additional question was, aren't there some widowers who are needy even though they can not pass the support test?

Mr. Jones: Again, Mr. Justice White, I say that that may well depend upon the standard of neediness that you use in a welfare system.

It is certainly hypothetically possible that there are some men who were self supporting, who nevertheless were needy.

Now, there are of course, supplementary programs which are designed to alleviate the need of those people whose need has not been entirely met by the Social Security action.

Justice Byron R. White: Has the man involved in this case ever indicated that he was needy?

Mr. Jones: He has not, it was our understanding that…

Justice Byron R. White: Would the case here be any different if he had?

Mr. Jones: Well, it would certainly be more attractive on facts for the other side.

But as a statistical matter Mr. Justice White, 85% roughly of the benefits that we are talking about, go to civil service pensioners.

They are plainly not needy and of the other percentages where we can not say with certainty that no needy person would thereby be given benefits, but as a practical matter, it is a rare member of the so-called disadvantaged class here who in fact is needy.

Unknown Speaker: Maybe I misunderstood, but as I understood my Brother White's question it was directed, or at least my question is directed to this proposition.

Why is the fact that a widow or a widower may have received more than one half of his support during the lifetime of his spouse, from his spouse relevant to his present neediness?

Mr. Jones: Well, the time in which it is measured is not during the lifetime, that is the time of the death, retirement or disability of spouse.

At the time of the spouse’s death, why is that fact relevant to his present state of need?

Mr. Jones: If he was dependent upon his wife at that point and if he is a retired widower, then it is unlikely that he has extrinsic sources of support and the retirement, excuse me, the survivors’ benefit serves to replace the support he has in fact lost.

We may say that he is presumed needy by virtual impact.

Unknown Speaker: It is really equivalence, isn't it, or it could be non-equivalence, isn’t that the case?

Mr. Jones: Well, I do not think it could be said to be a non-equivalence except in those rare instances of perhaps not so rare, but in those instances where the woman has substantial independent wealth which the man will inherit upon her death.

But, other than, in those situations, if he was in fact dependent upon her at the time of her death, it is very probable that he has lost support, support which the Congress has deemed, he needs to have replaced.

Justice Byron R. White: Well then how about the consequences if he was not dependent upon her at the time of her death.

Mr. Jones: Then he is ineligible for benefits.

Justice Byron R. White: Well, I know but what has that got to do with need now?

Mr. Jones: If he were not dependent upon her at the time of her death, then he has lost little in the way of support and can be presumed to be continuing on whatever sources of support that he had in the past.

Now, it is true that this is not a means test; it does not definitively distinguish between those persons acutely in need and those who are not.

Justice Byron R. White: Weel, to that extent, it is an administrative convenience argument, I suppose.

Mr. Jones: Well, I think that any support test, any dependency test is only roughly equivalent to need, for example, in Mathews against Lucas, last term, this Court upheld a statute which imposed upon illegitimate children a dependency test or support test, even though a similar test was not imposed upon legitimate children.

The criterion was considered substantially, rationally related to a need to distinguish between those who would need additional support and those who did not and this statute serves exactly the same purpose.

Now, it is true that we have here, as we did in Lucas, a problem of overinclusiveness.

The statute provides benefits to certain women, federal, retired, civil servants and certainly other women that are not made available, benefits are not made available to similar situated men.

But mere overinclusiveness, without more, does not render a statute unconstitutional.

Well, let me backtrack for a moment to make a few comments about the Wiesenfeld opinion on which appellee and the Court below had partially relied.

The Wiesenfeld opinion must be conceded contains language that have taken a face value, but requires a widower support test to be struck down.

The Court stated that “The constitution forbids gender based differentiation that results in the efforts of female workers producing less protection for their families and as produced by the efforts of men.”

But that statement can not be lifted bodily and applied out of context.

In the first place, the statement was made with regard to a statute that the Court found have no rational basis.

The Court’s rationale in Wiesenfeld was that the statutory bar against father’s benefits was inconsistent with the legislative purpose providing children deprived with one parent with the opportunity for the personal attention of the other.

Neither that rationale, nor any similar rationale, is available here.

The support test for widowers is fully consistent, I submit with the underlined legislative purpose of restricting benefits to those groups that may largely be presumed to be non-need, excuse me, to be needy.

But secondly, if the statement in Wiesenfeld were detached from its factual context, it would amount to a per se constitutional rule, that is what appellee suggest that it is.

But the Due Process Clause affords no basis for such a rule, such a flat declaration of what Congress may not do in the Social Security Act would, I submit, constitute a radical and unwise departure from historical principles of equal protection that would allow no way to be given to governmental interest that might be served by a particular gender based classification.

This Court has always given way to such interest in equal protection cases in the past and it should do so here. Mr. Chief Justice, I would like to reserve my remaining time.

Chief Justice Warren E. Burger: Very well. Mrs. Bader, Mrs. Ginsburg.

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

Leon Goldfarb’s case concerns a differential in the quality of social insurance accorded men and women.

Pursuant to the Federal Insurance Contributions Act, payments into Social Security's old age and survivors’ insurance program are exacted from gainfully employed men and women without regard to the sex of the contributor, whether the wage earner is a man or a woman, equal earnings require equal contributions.

In contrast to the gender neutral contribution system the program draws a sharp line between the sexes amid pay outside.

Benefits to a spouse available under a male wage earner’s account are not equally available under a female wage earner’s account.

The Court below ruled that this separate and unequal payout system discriminates invidiously against the wage earning woman and her spouse.

That decision and all other, five other, the Federal Court judgments on the same point. Solidly anchored to this Court’s 1973 judgment in Frontiero v. Richardson and 1975 decision in Weinberger v. Wiesenfeld.

Thus the issue on which this appeal turns is cleanly posed, do Frontiero and Wiesenfeld impart principled cses for deciding gender discrimination cases formed from the same mould or all the Frontiero and Wiesenfeld precedence shallow and evanescent as the Secretary would have it today.

In Wiesenfeld the Court declared unconstitutional, the Social Security Act's provision of a mother’s benefit, but no father’s benefit.

When Wiesenfeld was presented to this Court, the Solicitor General described the gender differential varied issue as very closely analogous to the one at par, and in Frontiero the Court held unconstitutional a military fringe benefit arrangement displaying a gender line, virtually identical to the one at par.

In defending the Frontiero classification, the Solicitor General noted similar distinctions are found in other federal laws.

He supplied as a sole example, 42 U. S. C. Section 402 the very Social Security provision now before the Court.

Like Stephen Wiesenfeld and Sharron and Joseph Frontiero, Leon Goldfarb challenged an employment related benefit scheme that attributes to the male wage earner, status, dignity and importance not attributed to the female wage earner.

As the Secretary recites the old age and survivors’ insurance at issue, took shape in two stages: First, in 1939, Congress ordered that the male workers’ Social Security account should attract benefits for his spouse without regard to husband’s and wife’s respective contributions to family income.

Justice Potter Stewart: Mrs. Bader may I interrupt for a moment.

You heard about what is your -- what our friend Mr. Jones had to say preliminarily about whether or not this is anti-female discrimination or anti-male discrimination, and I suppose you would agree that it can be cast either way you cast it as anti-female discrimination, anti-female wage earner discrimination that could be equally cast as anti-male beneficiary discrimination, but in any event, do you think there is any constitutional difference?

Let us say the statute wherever it says widow, it said widower and vice versa, let us just turn the coin around and say the statute was the other way, would it make any constitutional difference?

Would you have just as strong or and no more strong or any constitutional argument?

Ms Ruth Bader Ginsburg: At the lines what he has like virtually, every gender discrimination is a two edged sword.

It works both ways.

Justice Potter Stewart: Because some of the opinions of this Court and other Courts have when they have seen anti-female discrimination have relied for their constitutional decisions upon the history of anti-female discrimination, there has been so such history of anti male discrimination.

I guess as a matter of historic fact.

Ms Ruth Bader Ginsburg: Because most anti-female discrimination was dressed up as discrimination favoring the woman.

Justice Potter Stewart: I know that, but should the Courts through help of those advocates such of you as a view I have been able to see through that?

Ms Ruth Bader Ginsburg: The point is that the discriminatory line almost inevitably hurts women.

Justice Potter Stewart: No, my question is if this were purely an anti-male discrimination and let us assume it were, would you have a stronger constitutional argument in your view?

Ms Ruth Bader Ginsburg: My argument would be the same because I do not know of any purely anti-male discrimination.

In the end, the women are the ones who end up hurting.

I should point out that in 1950, when Congress authorized these benefits under the female workers account, the dependency test that was attached was very stringent dependency test.

It was not a question of whether the woman…

Justice John Paul Stevens: Can I interrupt you just to be sure to understand your position in response to Justice Stewart, is it your view that there is no discrimination against males?

Ms Ruth Bader Ginsburg: I think there is discrimination against males.

Justice John Paul Stevens: Now, if there is such a discrimination is it to be tested by the same or by a different standard from discrimination against female?

Ms Ruth Bader Ginsburg: My response to that Mr. Justice Stevens is that almost every discrimination that operates against males operates against females as well.

Justice John Paul Stevens: Is that a yes or a no answer?

I just do not understand you and are you trying to avoid the question or...

Ms Ruth Bader Ginsburg: No, I am not trying to avoid the question.

I am trying to clarify the position that I do not know of any line that does not work as a two edged sword as we heard both...

Justice John Paul Stevens: But we hear a case this morning just to be pre-involving a law that would not permit males to make certain purchases that females could make.

It was attacked as a discrimination against male.

Ms Ruth Bader Ginsburg: Yes.

Justice John Paul Stevens: My question is whether we should examine that law under a same or a different standard when if it were a discrimination against the other sex?

Ms Ruth Bader Ginsburg: My answer to that question is no, in part because such a law has an insidious impact against females.

It stands then docile compliance and safe to be trusted.

Justice John Paul Stevens: If your answer always depends on their finding some discrimination against females, you seem put that in every answer to this question.

Ms Ruth Bader Ginsburg: My answer was that I have not yet come across the statute.

It does not have that effect.

Justice John Paul Stevens: But if there were one you would say it should be tested under a different standard?

Ms Ruth Bader Ginsburg: If there were such a statute, I would reserve judgment on what the standards should be.

In any case I have not come across such a statute in my…

Justice John Paul Stevens: So, your case depends then on our analyzing this case as a discrimination against female?

Ms Ruth Bader Ginsburg: No, my case depends on your recognition that using gender as a classification resorting to that classification is highly questionable and should be closely reviewed.

Unknown Speaker: There is always in fact a discrimination against females.

Ms Ruth Bader Ginsburg: Yes, as far as I have seen.

Unknown Speaker: That is your position.

Ms Ruth Bader Ginsburg: That is the ultimate effect of such line drawing.

Unknown Speaker: How, in fact you should use this Court's opinion in Shevin against Kahn into this follow through you are having with my brothers.

Ms Ruth Bader Ginsburg: In Kahn against Shevin, that the Court analyzes that classification as helpful to some women harmful to none.

If you accept that analysis well then you might rationalize that as a compensatory classification that could survive constitutional review, in addition, it was a very small matter involved in Kahn v. Shevin.

Unknown Speaker: But it did survive a constitutional certainly here.

Ms Ruth Bader Ginsburg: Yes, but what we have in this case is a classification that is harmful for women.

Unknown Speaker: Mrs. Ginsburg speaking of the test which is to be of my understanding that has not been a holding or a decision of a majority of the full Court that says in so many words that sex is a suspect classification.

Would you say that the existing precedents from this Court requires sex to be scrutinized more or less carefully than a classification based on illegitimacy such as the one in Mathews against Lucas last term?

Ms Ruth Bader Ginsburg: Yes, I think that was a clear indication of the Mathews against Lucas decision.

Unknown Speaker: Well, but the question is which is the strictest scrutiny, sex or illegitimacy in your construction of our case?

Ms Ruth Bader Ginsburg: Sex and let me say that has been a very recent development because as we know at the time these lines came into Social Security in 1939 and 1950 virtually, anything goes within the state of equal protection law with respect to gender classification.

But anything always is certainly not the law as to gender classification today.

Equal Protection Principle is part of our Constitution, intended to govern American society as it evolves overtime and inevitably, keeping pace with the Nation’s progress toward maturity, notions of what constitutes the equal protection of the laws do change and as to sex discrimination, they have changed.

Thus the gender line in question here is no more secure because it solidified in 1950 than it would be if a program had taken shape in 1970.

The Court has not yet acknowledged sex as a suspect criterion, but it has plainly identified the vice of legislative resort to gender pigeonholing.

Last term, in Mathews v. Lucas Mr. Justice Blackmun writing for the Court referred to the severity and pervasiveness of the historic, legal and political discrimination against women, discrimination made ever so easy because sex like race.

Unknown Speaker: Yeah that case upheld the classification largely on a justification of administrative convenience, doesn't it?

Ms Ruth Bader Ginsburg: Mathews v. Lucas did not involve a sex classification.

Unknown Speaker: No, the classification of illegitimacy.

Ms Ruth Bader Ginsburg: And in the process of so doing distinguished sex classifications and race classifications, both of which present, as Mr. Justice Blackmun said an obvious badge.

Yet women’s history has been a history of purposeful, unequal treatment. women have been subjected to unique disabilities based on stereotype characteristics, not truly indicative of their abilities.

Further in Mathews v. Lucas, the Court pointed to the generalization harmful to women underlining this one way three to one support test.

The woman spouse does not qualify unless the woman supplied all of her own support plus half of his at the 75% as support test, at issue here, it is not enough that she earns 51% of the family’s income, but the Court pointed out in Mathews v. Lucas that such a gender specific classification reflects the familiar over broad stereotypical assumption that earnings of men are vital to the family and earnings of women are not, but the Secretary has told you that this discrimination in the old age and survivors’ insurance is discrimination helpful to women discrimination rationally responsive to the low economic status of many wives and widows?

Yes, Congress did attend to the man’s wife in 1939 in the same paternalistic spirit it attended to his children.

But the warranted congressional attention to wives and widows is expressed in his scheme that heaps further disadvantage on the gainfully employed woman.

A law that benefits a woman as wife or widow but does not denigrate woman as wager and that might be rationalized as benign and the gender criteria in ranks as an appropriate means to a legitimate end.

But the Section 402 differential can not be rationalized as favorable to some women, harmful to none.

The wage earning woman is disfavored, her worked is devalued, when the earnings dollar she contributes to Social Security is worth lifetime protection for her family than the earnings dollar of an identically situated male worker.

In sum, the line Congress drew with Section 402 does not ameliorate gender discrimination, it does not alter conditions that relegate women to an inferior place in political and economic endeavor, rather the gender line drawn in the old days and survivors’ insurance program reflects and reinforces constraining stereotypes.

The differential favors and rewards men’s employment more than women’s.

It casts the law's weight on the side of arrangements in which man’s work comes first, woman’s second, together with other incentives.

It helps steer the married couple in one direction and discourages independent choice by the pair.

Unknown Speaker: Mrs. Ginsburg let me come back to Kahn and Shevin again, really it was not too clear on whether yourself you have decided that case strongly or what is your view is.

That is not too important but in that case did we not hold that the state had enacted there the special benefit for women which was not given to, it is for widows, not given to widowers because -- and this is the language of the opinion it was reasonably designed to further a state policy of questioning the financial impact of spousal loss on the sex for which that loss imposes a disproportionately heavy burden.

Now, isn't there something of that same undertone in this case?

Ms Ruth Bader Ginsburg: The critical difference is that in Kahn that small tax break was unlikely to reinforce significantly.

Unknown Speaker: What does it make, what is the difference whether it is small or large on a constitutional basis?

Ms Ruth Bader Ginsburg: The question, the critical issue is whether the distinction reinforces stereotype characterizations of the way women or men are or whether such align influences men and women’s...

Unknown Speaker: I think such a small benefit might be more invidious as a sex stereotype than a large benefit, wouldn’t it?

Ms Ruth Bader Ginsburg: It is unlikely to affect the decisions of men and women concerning the work that they do a, $15 annual tax benefit is not likely to have such an impact but it is also security differential if it is a question of which one will be the dominant bread winner and if it is a question of thousands of dollars that can sway decisions one way or another, $15 tax break is not likely to have that.

Unknown Speaker: Well, what you are saying is that Congress cannot legislate on the basis of the assumption that in the great majority of cases, the man is the primary, is the dominant bread winner in the society?

Ms Ruth Bader Ginsburg: Congress can use a gender neutral standard but it cannot simply assume that the men are the bread winners and that the women are the dependents.

Unknown Speaker: What is the fact statistically?

Ms Ruth Bader Ginsburg: The fact statistically as to this three to one dependency test I think it is quite clear that millions of American women could not meet such a test.

It is not a small group of women involved here.

The Secretary has noted that the median average computation of the wife’s family income is 27%, when she works fulltime it is 38% but even 27% is too high to qualify her under this three to one dependency test.

So, most women could not meet that test.

Secretary’s ultimate...

Unknown Speaker: Mrs. Ginsburg can I ask -- would you find objection of all on equal protection or due process grounds an application of support test across the board to both men and women?

Ms Ruth Bader Ginsburg: If that is the line Congress chose to draw there would be no problem with such a line.

The question whether the legislature should do it…

Unknown Speaker: That is another -- that is a different question, but you would not -- if Congress said, “Our overall aim is to provide for need and we are going to have a simple rule to serve that and namely a support test and we are going to apply to both men and women.”

You would not find that objected?

Ms Ruth Bader Ginsburg: There would not be a constitutional infirmity with that line.

Unknown Speaker: Thank you.

Ms Ruth Bader Ginsburg: Secretary’s position here is that -- although this is not clearly stated as justification for discrimination, it is cheaper to adhere to this gender criterion, but that is not necessarily true nor is it material to this Court’s function.

It should be underscored that the remedial issue in this case calls for tentative adjudication, not final resolution by this Court, authority and responsibility for the punitive disposition remain with Congress.

Striking the gender criterion leads to the legislature, the full range of gender neutral options, Congress may extend benefits, it may retract them, it may apply across the board that have support test or a less blunt limitation.

This Court’s interim disposition should be guided by the preference, Congress has consistently indicated when a gender line infects a benefit program.

The reshaping has taken the same form on each occasion, removal of the gender based differential by dropping the dependency test.

That is the course unexceptionally recommended in every official report recently made regarding gender lines in Social Security including the reports so extensively quoted in the Secretary’s Brief.

Unknown Speaker: Well, what does -- suppose you win the case what kind of a judgment should the Court enter?

Just the declaration that the…

Ms Ruth Bader Ginsburg: Court should affirm the judgment below.

Unknown Speaker: Which is just the declaration that the distinction is unconstitutional on equal protection grounds?

Ms Ruth Bader Ginsburg: Affirm the decision below which held the one way dependency test unconstitutional, the consequence of that was that Leon Goldfarb qualified for benefits and is presently receiving them.

An application of across the board dependency test, though open to Congress is unlikely in view of the very drastic program change that approach would effect.

It would remove from the beneficiary category, not a small percentage of wives and widows as the Secretary asserted.

But based on that 27% figure clearly, millions of wives and widows would fail that three to one dependency test.

Nor has the Secretary supplied a shred of evidence in this case as to dollars saved by presuming the wife’s dependence as -- there was a reference to a lower Court hearing in Maryland in the Jablon case in which the Government Counsel did tender a guess that the administrative expense could run as high as a billion dollars, but in a subsequent hearing, Government Counsel stated if there was no factual basis whatever for that figure or any other figure.

In short there is no factual basis in this record, nor in the record of any other case for comparison of administrative dollars saved as against benefit dollars paid out to wives and widows who would be ineligible under the three to one dependency test.

The Congress never attempted to determine whether any saving would be effected by assuming men independent and women dependent.

It appears that what Congress did have in mind in 1939 and 1950 was not so much administrative convenience as the notion that husband whatever his actual earnings ought to be ranked the family’s dominant bread winner.

Further, as even the Secretary’s Brief reveals albeit sotto voce, most of the husbands and widowers who would qualify where this three to one support test eliminated are not their family’s principal bread winners.

Rather, on the basis of the Secretary’s projections, the majority of these men earned less than their wives, the life’s partner of these men, are women whose earnings ranged from over 50% to just under 75% of the family income.

Finally, as to that cost computation, the computation introduced for the first time in the Secretary’s Brief to this Court.

It is a one eye illusive estimate that both exaggerates and obscures.

It does not offset against new secondary beneficiaries with ever increasing extent to which wives and widows are removed from that category because they qualify as primary beneficiaries.

Entitled to maximum benefits under their own accounts, does not take account of the probability of continued movement towards the announced congressional goal of universal Social Security primary coverage for all gainfully employed persons.

It does not place the estimates in context, the total sum of Secretary conjunctions amount to just about two thirds of 1% of annual Social Security receipts.

In 1975 those receipts exceeded $66.7 billion.

As significantly it appears to hypothesize the condition that does not correspond to reality.

The projections suppose that every newly eligible man would retire forthwith as early as age 60 or 62 and take full advantage of his eligibility, left out of the calculation is the Social Security Act’s vitally important retirement test.

Most individuals do not retire at ages 60 to 64.

Many potential Social Security recipients worked well past the age of 65.

Leon Goldfarb for example retired when he was approaching 67.

All potential Social Security beneficiaries under age 72 are subject to the ex-retirement test, otherwise, eligible individuals under 72 if they have earnings in excess of the income ceiling will receive no benefits.

Under the retirement test a high percentage of the husbands and widowers counted by the Secretary as eligible likely would receive no benefits at all or would have their benefits cut down substantially because they earn an excessive $2760, the current income ceiling for full benefits.

Unknown Speaker: Do we have any reliable figures on that Mrs. Ginsburg?

Ms Ruth Bader Ginsburg: I have no access to figures concerning these tentative people who could not get full of benefits or whose benefits would be reduced.

Unknown Speaker: Wouldn't that be likely a fluctuating group?

Ms Ruth Bader Ginsburg: But, we know that the computation appears to count every person who is eligible in that estimate and we know that it does not appear to take account of anybody, not retiring at the first available opportunity. We do…

Unknown Speaker: Is it possible that is why they have revised their figures downward from a billion dollars to four hundred and some million?

Ms Ruth Bader Ginsburg: No, they have never revised the figures downward.

The billion dollars was suggested once as the cost of applying the dependency test to wives, requiring wives to prove that they supplied less than a quarter of the total family income.

That is another -- that billion dollars have nothing to do with this estimate.

This estimate has constantly escalated.

In the Wiesenfeld case, it was suggested that it was 300 million and now it is up to 447 million.

But, it appears that no account was taken over the retirement test and that is the significant omission and it is underscored by the emphasis that the Social Security administration has placed on the enormous expense of eliminating or scaling down the retirement test through legislative provision.

In any event, it is impossible to rationalize a gender criterion allocating benefits on the ground that it is cheaper to perceive that way.

If all that is required to uphold the statutory classification is the conclusion that it affects economies, then any statutory scheme can be established and no arbitrarily excluded group can complain.

That case ago, now senior Federal District Court Judge Burnita Shelton Matthews in her days at the Bar as Counsel to the National Women’s Party, explained like why a gender line, such as the one at par, helps to keep women not on a pedestal, but in a cage.

Such classification she said fortifies the assumption, harmful to women that label full pay with attendant benefits for one’s family is primarily the prerogative of men.

Appellee Goldfarb respectfully requests that the judgment below be affirmed thereby establishing that under the equal protection principle, the women workers’ national social insurance is of no less value than is the social insurance of the working man.

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

Mr. Jones do you have anything further?

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

I would like to point out that the beneficiaries with which we are largely concerned here are retired civil servants who receive government pensions and that this Court should not likely require a largely irrational distribution of benefits that the appellee seeks.

Now, the appellee’s arguments here largely depend on changing employment statistics.

His reliance is upon the fact that today very much unlike 1939 and 1950, there is a substantial proportion of non-dependent women in the job market, perhaps aside has 20% at this point or roughly in that area.

Justice John Paul Stevens: Mr. Jones, do you think that constitutionality of this statute turns on the statistic says they existed in 1939, 1950 or today?

Mr. Jones: Mr. Justice Stevens, if you believe that this statute was constitutional when first enacted and that recent social history has largely eroded the factual basis on which the classification originally depended, I would think that the appropriate remedy would not be to determine in the first instance that this statute is unconstitutional.

I do not think that this Court should sit as a committee of revision on the Social Security Act in the first instance.

It seems to me that if you believe that recent social history has undercut the foundation of the act in this respect, you should advice Congress of the fact that changing events have cast serious doubt upon the continued viability of this distinction.

But you should give to Congress the opportunity to sort out this very complicated matter which -- no matter how this Court would dispose off it -- would result in an irrational and unfair allocation of Social Security moneys.

Justice John Paul Stevens: Let me change the question a little bit.

Supposing we were convinced that the statute was constitutional in 1950 and that conditions have totally changed, whenever we get to the case, would we be bound to say it is still constitutional?

Mr. Jones: I think that to give due deference to Congress which has a primary responsibility of sorting out the difficult questions of the proper allocations Social Security moneys, it would be appropriate for this Court to hold at this point that the statute remains constitutional but advice Congress that if current social trends continue, the factual basis for that final constitutionality would have been completely eroded, but give to Congress some opportunity to sort this matter out.

Justice Thurgood Marshall: (Inaudible).

Mr. Jones: Well, I think that that opinion to the effect would sufficiently apprise Congress of -- to solve this matter.

Unknown Speaker: Do you do (Inaudible).

Justice John Paul Stevens: This is an odd role which you are recommending to this Court.

Mr. Jones: Well, it is not unlike the role you played in the Federal Election Commission case.

Unknown Speaker: Well, in the half a dozen cases…

Justice John Paul Stevens: Sorry to hear that.

Unknown Speaker: Half a dozen cases have been decided where the Court has done almost precisely what you are suggesting and making recommendations about legislature.

Mr. Jones: Well, I think that in the matter such as this where to affirm the decision below, would require an irrational allocation of benefits, that it just makes plain good sense to give Congress the primary opportunity to take care of, what seem to be an unfair...

Justice Thurgood Marshall: Do you say that the statute is constitutional or unconstitutional?

Mr. Jones: Constitutional.

Justice Thurgood Marshall: You would say that it is constitutional despite the fact that we think it is unconstitutional.

Mr. Jones: Well, I submit that the fact that more women are now in the job market than in 1939 does not, at this point, standing alone, necessitate our finding of unconstitutionality.

I do not think we have yet reached that point, my submission is that…

Unknown Speaker: Mr. Jones, what do you think your primary -- what are your points anyway, earlier in your argument was that, merely in the fact that they are paying widows something you are not paying widowers, did not prove unconstitutionality.

You just said accessed over…

Mr. Jones: That is quite right, I stand by it…

Unknown Speaker: ...overinclusiveness…

Mr. Jones: That is correct.

Unknown Speaker: Is that Congress’ aim as to pay this to take care of needy people?

Mr. Jones: The appellee’s argument, as I understand it, is that what was once overinclusiveness as to 5 to 10% of the women is now overinclusiveness as to perhaps 20 or 25% of women.

It may well be that -- and I would submit to the contrary, but it may well be that if the Court concludes that that kind of broad overinclusiveness is of doubtful constitutionality that might apprise Congress of that fact, that my submission would be that mere overinclusiveness without more does not render the statute unconstitutional.

That the statute need not be mathematically precise as to the categories of beneficiaries…

Unknown Speaker: Why does that worth 30% instead of 2%?

Would you say that degree of overinclusiveness is not a matter?

Mr. Jones: Well, it is a matter of degree, if it were 100%, then obviously, it would be very difficult to sustain.

Where 30% stands in relation to that other than being about 30% toward 100%, I am not sure I am prepared to say at this moment.

Thank you.

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

Thank you Mrs. Ginsburg.

The case is submitted.