U.S. Supreme Court

CALIFANO v. GOLDFARB, 430 U.S. 199 (1977)

430 U.S. 199

CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. GOLDFARB

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT

OF NEW YORK

No. 75-699.

Argued October 5, 1976

Decided March 2, 1977

Under the Social Security Act survivors' benefits based on the earnings of a deceased husband covered by the Act are payable to his widow regardless of dependency, but under 42 U.S.C. 402 (f) (1) (D) such benefits on the basis of the earnings of a deceased wife covered by the Act are payable to her widower only if he was receiving at least half of his support from her. In a suit challenging these provisions, a three-judge District Court held that the different treatment of men and women mandated by 402 (f) (1) (D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than is provided to male employees. Held: The judgment is affirmed. Pp. 204-217; 217-224.

396 F. Supp. 308, affirmed.

MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE POWELL, concluded that the gender-based distinction created by 402 (f) (1) (D) violates the Due Process Clause of the Fifth Amendment. Weinberger v. Wiesenfeld,  420 U.S. 636 ; Frontiero v. Richardson,  411 U.S. 677 . Pp. 204-217.

(a) Such distinction, which results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of male workers, is constitutionally forbidden at least when supported by no more substantial justification than "archaic and overbroad" generalizations or "old notions," such as "assumptions as to dependency," that are more consistent with "the role-typing society has long imposed" than with contemporary reality. Pp. 204-207.

(b) Equal protection analysis here cannot center solely on the distinction drawn between widowers and widows but must be focused as well on the gender-based discrimination against covered female wage earners. Pp. 207-209.

(c) The fact that a covered employee's interest in future social security benefits is "noncontractual" does not preclude any claim of

equal protection denial, but benefits "directly related to years worked and amount earned by a covered employee, and not to the needs of the beneficiaries directly . . . must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex," Wiesenfeld, supra, at 647. Pp. 210-212.

(d) It appears from 402 (f) (1) (D)'s phrasing and legislative history as well as from the general scheme of the Old-Age, Survivors, and Disability Insurance benefits program, that the differential treatment of nondependent widows and widowers results, not from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent. The only justification for a classification based on this latter presumption is the unverified assumption that it would save the Government time, money, and effort simply to pay benefits to all widows rather than to require proof of dependency of both sexes, and such an assumption does not suffice to justify a gender-based discrimination in the distribution of employment-related benefits. Pp. 212-217.

MR. JUSTICE STEVENS concluded that the relevant discrimination is against surviving male spouses, rather than against deceased female wage earners, that such discrimination is merely the accidental byproduct of a traditional way of thinking about females, and that something more than accident is necessary to justify under the Fifth Amendment the disparate treatment of persons who have as strong a claim to equal treatment as do similarly situated surviving spouses. Pp. 217-224.

BRENNAN, J., announced the Court's judgment and delivered an opinion, in which WHITE, MARSHALL, and POWELL, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 217. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and STEWART and BLACKMUN, JJ., joined, post, p. 224.

Deputy Solicitor General Jones argued the cause for appellant. With him on the brief were Solicitor General Bork, Assistant Attorney General Lee, Howard E. Shapiro, and William Kanter.

Ruth Bader Ginsburg argued the cause for appellee. With her on the brief were Melvin L. Wulf and Nadine Taub.

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE POWELL joined.

Under the Federal Old-Age, Survivors, and Disability Insurance Benefits (OASDI) program, 42 U.S.C. 401-431 (1970 ed. and Supp. V), survivors' benefits based on the earnings of a deceased husband covered by the Act are payable to his widow. Such benefits on the basis of the earnings of a deceased wife covered by the Act are payable to the widower, however, only if he "was receiving at least one-half of his support" from his deceased wife.[^{Footnote 1} ] The question in this case is

whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.

A three-judge District Court for the Eastern District of New York held that the different treatment of men and women mandated by 402 (f) (1) (D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than is provided to male employees, 396 F. Supp. 308 (1975).[^{Footnote 2} ] We noted probable jurisdiction. 424 U.S. 906 (1976). We affirm.

I

Mrs. Hannah Goldfarb worked as a secretary in the New York City public school system for almost 25 years until

her death in 1968. During that entire time she paid in full all social security taxes required by the Federal Insurance Contributions Act, 26 U.S.C. 3101-3126. She was survived by her husband, Leon Goldfarb, now aged 72, a retired federal employee. Leon duly applied for widower's benefits. The application was denied with the explanation:

"You do not qualify for a widower's benefit because you do not meet one of the requirements for such entitlement. This requirement is that you must have been receiving at least one half support from your wife when she died."[^{Footnote 3} ]

The District Court declared 402 (f) (1) (D) unconstitutional primarily on the authority of Weinberger v. Wiesenfeld,  420 U.S. 636 (1975), stating:

"[Section 402 (f) (1) (D)] and its application to this plaintiff, `deprive women of protection for their families which men receive as a result of their employment.' Weinberger v. Wiesenfeld,  420 U.S. 636, 645 . . . (1975). See also Frontiero v. Richardson,  411 U.S. 677 . . . (1973)

. . . . .

"Whatever may have been the ratio of contribution to family expenses of the Goldfarbs while they both

worked, Mrs. Goldfarb was entitled to the dignity of knowing that her social security tax would contribute to their joint welfare when the couple or one of them retired and to her husband's welfare should she predecease him. She paid taxes at the same rate as men and there is not the slightest scintilla of support for the proposition that working women are less concerned about their spouses' welfare in old age than are men." 396 F. Supp., at 308-309

II

The gender-based distinction drawn by 402 (f) (1) (D) - burdening a widower but not a widow with the task of proving dependency upon the deceased spouse - presents an equal protection question indistinguishable from that decided in Weinberger v. Wiesenfeld, supra. That decision and the decision in Frontiero v. Richardson,  411 U.S. 677 (1973), plainly require affirmance of the judgment of the District Court.[^{Footnote 4} ]

The statutes held unconstitutional in Frontiero provided increased quarters allowance and medical and dental benefits to a married male member of the uniformed Armed Services whether or not his wife in fact depended on him, while a married female service member could only

receive the increased benefits if she in fact provided over one-half of her husband's support. To justify the classification, the Secretary of Defense argued: "[A]s an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, . . . Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact." 411 U.S., at 688-689. But Frontiero concluded that, by according such differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statute violated the Fifth Amendment. See Reed v. Reed,  404 U.S. 71, 76 (1971); Stanley v. Illinois,  405 U.S. 645, 656 -657 (1972); cf. Schlesinger v. Ballard,  419 U.S. 498, 506 -507 (1975).

Weinberger v. Wiesenfeld, like the instant case, presented the question in the context of the OASDI program. There the Court held unconstitutional a provision that denied father's insurance benefits to surviving widowers with children in their care, while authorizing similar mother's benefits to similarly situated widows. Paula Wiesenfeld, the principal source of her family's support, and covered by the Act, died in childbirth, survived by the baby and her husband Stephen. Stephen applied for survivors' benefits for himself and his infant son. Benefits were allowed the baby under 42 U.S.C. 402 (d) (1970 ed., Supp. III), but denied the father on the ground that "mother's benefits" under 402 (g) were available only to women. The Court reversed, holding that the gender-based distinction made by 402 (g) was "indistinguishable from that invalidated in Frontiero," 420 U.S., at 642, and therefore:

"[While] the notion that men are more likely than women

to be the primary supporters of their spouses and children is not entirely without empirical support, . . . such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.

"Section 402 (g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. . . . [I]n this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others." Id., at 645.

Precisely the same reasoning condemns the gender-based distinction made by 402 (f) (1) (D) in this case. For that distinction, too, operates "to deprive women of protection for their families which men receive as a result of their employment": social security taxes were deducted from Hannah Goldfarb's salary during the quarter century she worked as a secretary, yet, in consequence of 402 (f) (1) (D), she also "not only failed to receive for her [spouse] the same protection which a similarly situated male worker would have received [for his spouse] but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others." Wiesenfeld thus inescapably compels the conclusion reached by the District Court that the gender-based differentiation created by 402 (f) (1) (D) - that results in the efforts of female workers required to pay social security taxes producing less protection

for their spouses than is produced by the efforts of men - is forbidden by the Constitution, at least when supported by no more substantial justification than "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra, at 508, or "`old notions,'" Stanton v. Stanton,  421 U.S. 7, 14 (1975), such as "assumptions as to dependency," Weinberger v. Wiesenfeld, supra, at 645, that are more consistent with "the role-typing society has long imposed," Stanton v. Stanton, supra, at 15, than with contemporary reality. Thus 402 (f) (1) (D) "`[b]y providing dissimilar treatment for men and women who are . . . similarly situated . . . violates the [Fifth Amendment].' Reed v. Reed,  404 U.S. 71, 77 . . . ." Weinberger v. Wiesenfeld, supra, at 653.

III

Appellant, however, would focus equal protection analysis, not upon the discrimination against the covered wage earning female, but rather upon whether her surviving widower was unconstitutionally discriminated against by burdening him but not a surviving widow with proof of dependency. The gist of the argument is that, analyzed from the perspective of the widower, "the denial of benefits reflected the congressional judgment that aged widowers as a class were sufficiently likely not to be dependent upon their wives that it was appropriate to deny them benefits unless they were in fact dependent." Brief for Appellant 12.

But Weinberger v. Wiesenfeld rejected the virtually identical argument when appellant's predecessor argued that the statutory classification there attacked should be regarded from the perspective of the prospective beneficiary and not from that of the covered wage earner. The Secretary in that case argued that the "pattern of legislation reflects the considered judgment of Congress that the `probable need' for financial assistance is greater in the case of a widow, with young children to maintain, than in the case of similarly situated

males." Brief for Appellant in No. 73-1892, O. T. 1974, p. 14. The Court, however, analyzed the classification from the perspective of the wage earner and concluded that the classification was unconstitutional because "benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex." 420 U.S., at 647. Thus, contrary to appellant's insistence, Brief for Appellant 12, Wiesenfeld is "dispositive here."

From its inception, the social security system has been a program of social insurance. Covered employees and their employers pay taxes into a fund administered distinct from the general federal revenues to purchase protection against the economic consequences of old age, disability, and death. But under 402 (f) (1) (D) female insureds received less protection for their spouses solely because of their sex. Mrs. Goldfarb worked and paid social security taxes for 25 years at the same rate as her male colleagues, but because of 402 (f) (1) (D) the insurance protection received by the males was broader than hers. Plainly then 402 (f) (1) (D) disadvantages women contributors to the social security system as compared to similarly situated men.[^{Footnote 5} ] The section then "impermissibly discriminates against a female wage earner because it provides her family less protection than it provides that of a male wage earner, even though the family needs may be identical." Wiesenfeld, supra, at 654-655 (POWELL, J., concurring).

In a sense, of course, both the female wage earner and her surviving spouse are disadvantaged by operation of the statute, but this is because "Social Security is designed . . . for the protection of the family," 420 U.S., at 654 (POWELL, J., concurring),[^{Footnote 6} ] and the section discriminates against one particular category of family - that in which the female spouse is a wage earner covered by social security.[^{Footnote 7} ] Therefore decision of the equal protection challenge in this case cannot focus solely on the distinction drawn between widowers and widows but, as Wiesenfeld held, upon the gender-based discrimination against covered female wage earners as well.[^{Footnote 8} ]

IV

Appellant's emphasis upon the sex-based distinction between widow and widower as recipients of benefits rather than that between covered female and covered male employees also emerges in his other arguments. These arguments have no merit.

A

We accept as settled the proposition argued by appellant that Congress has wide latitude to create classifications that allocate noncontractual benefits under a social welfare program. Weinberger v. Salfi,  422 U.S. 749, 776 -777 (1975); Flemming v. Nestor,  363 U.S. 603, 609 -610 (1960). It is generally the case, as said, id., at 611:

"Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as [Social Security], we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification."

See also Weinberger v. Salfi, supra, at 768-770; Richardson v. Belcher,  404 U.S. 78, 81 , 84 (1971); Dandridge v. Williams,  397 U.S. 471, 485 -486 (1970).

But this "does not, of course, immunize [social welfare legislation] from scrutiny under the Fifth Amendment." Richardson v. Belcher, supra, at 81. The Social Security Act is permeated with provisions that draw lines in classifying those who are to receive benefits. Congressional decisions in this regard are entitled to deference as those of the institution charged under our scheme of government with the primary responsibility for making such judgments in light of competing policies and interests. But "[t]o withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to

the achievement of those objectives." Craig v. Boren,  429 U.S. 190, 197 (1976).[^{Footnote 9} ] Such classifications, however, have frequently been revealed on analysis to rest only upon "old notions" and "archaic and overbroad" generalizations, Stanton v. Stanton, 421 U.S., at 14; Schlesinger v. Ballard, 419 U.S., at 508; cf. Mathews v. Lucas,  427 U.S. 495, 512 -513 (1976), and so have been found to offend the prohibitions against denial of equal protection of the law. Reed v. Reed,  404 U.S. 71 (1971); Frontiero v. Richardson,  411 U.S. 677 (1973); Weinberger v. Wiesenfeld,  420 U.S. 636 (1975); Stanton v. Stanton, supra; Craig v. Boren, supra. See also Stanley v. Illinois,  405 U.S. 645 (1972); Taylor v. Louisiana,  419 U.S. 522 (1975).

Therefore, Wiesenfeld, supra, at 646-647, expressly rejected the argument of appellant's predecessor, relying on Flemming v. Nestor, that the "noncontractual" interest of a covered employee in future social security benefits precluded any claim of denial of equal protection. Rather, Wiesenfeld held that the fact that the interest is "noncontractual" does not mean that "a covered employee has

no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment," nor does it "sanction differential protection for covered employees which is solely gender based." 420 U.S., at 646. On the contrary, benefits "directly related to years worked and amount earned by a covered employee, and not to the need of the beneficiaries directly," like the employment-related benefits in Frontiero, "must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex." 420 U.S., at 647.

B

Appellant next argues that Frontiero and Wiesenfeld should be distinguished as involving statutes with different objectives from 402 (f) (1) (D). Rather than merely enacting presumptions designed to save the expense and trouble of determining which spouses are really dependent, providing benefits to all widows, but only to such widowers as prove dependency, 402 (f) (1) (D), it is argued, rationally defines different standards of eligibility because of the differing social welfare needs of widowers and widows. That is, the argument runs, Congress may reasonably have presumed that nondependent widows, who receive benefits, are needier than nondependent widowers, who do not, because of job discrimination against women (particularly older women), see Kahn v. Shevin,  416 U.S. 351, 353 -354 (1974), and because they are more likely to have been more dependent on their spouses. See Wiesenfeld, 420 U.S., at 645; Kahn v. Shevin, supra, at 354 n. 7.[^{Footnote 10} ]

But "inquiry into the actual purposes" of the discrimination,

Wiesenfeld, supra, at 648, proves the contrary. First, 402 (f) (1) (D) itself is phrased in terms of dependency, not need. Congress chose to award benefits, not to widowers who could prove that they are needy, but to those who could prove that they had been dependent on their wives for more than one-half of their support. On the face of the statute, dependency, not need, is the criterion for inclusion.

Moreover, the general scheme of OASDI shows that dependence on the covered wage earner is the critical factor in determining beneficiary categories.[^{Footnote 11} ] OASDI is intended to insure covered wage earners and their families against the economic and social impact on the family normally entailed by loss of the wage earner's income due to retirement, disability, or death, by providing benefits to replace the lost wages. Cf. Jimenez v. Weinberger,  417 U.S. 628, 633 -634 (1974). Thus, benefits are not paid, as under other welfare programs, simply to categories of the population at large who need economic assistance, but only to members of the family of the insured wage earner.[^{Footnote 12} ] Moreover, every family member other than a wife or widow is eligible for benefits only if a dependent of the covered wage earner.[^{Footnote 13} ] This accords

with the system's general purpose; one who was not dependent to some degree on the covered wage earner suffers no economic loss when the wage earner leaves the work force. Thus the overall statutory scheme makes actual dependency the general basis of eligibility for OASDI benefits, and the statute, in omitting that requirement for wives and widows, reflects only a presumption that they are ordinarily dependent. At all events, nothing whatever suggests a reasoned congressional judgment that nondependent widows should receive benefits because they are more likely to be needy than nondependent widowers.

Finally, the legislative history of 402 (f) (1) (D) refutes appellant's contention. The old-age provisions of the original Social Security Act, 49 Stat. 622, provided pension benefits only to the wage earner himself, with a lump-sum payment to his estate under certain circumstances.[^{Footnote 14} ] Wives' and widows' benefits were first provided when coverage was extended to other family members in 1939. Social Security Act Amendments of 1939, 53 Stat. 1360, 1364-1366. The general purpose of the amendments was "to afford more adequate protection to the family as a unit." H. R. Rep. No. 728, 76th Cong., 1st Sess., 7 (1939). (Emphasis supplied.) The House Ways and Means Committee criticized the old lump-sum payment because it "make[s] payments to the estate of a deceased person regardless of whether or not he leaves dependents." Ibid. The Social Security Board, which had initiated the amendments in a report transmitted by the President to Congress, recommended the adoption

of survivors' benefits because "[t]he payment of monthly benefits to widows and orphans, who are the two chief classes of dependent survivors, would furnish more significant protection than does the payment of lump-sum benefits." H. R. Doc. No. 110, 76th Cong., 1st Sess., 7 (1939).[^{Footnote 15} ] In addition to recommending survivors' benefits, the Board suggested the extension of old-age pension benefits "for the aged dependent wife of the retired worker."[^{Footnote 16} ] Id., at 6. On the Senate floor, Senator Harrison, the principal proponent of the amendments, criticized the then-existing system of benefits because under it "no regard is had as to whether [the covered wage earner] has a dependent wife, or whether he dies leaving a child, widow, or parents." 84 Cong. Rec. 8827 (1939). There is no indication whatever in any of the legislative history that Congress gave any attention to the specific case of nondependent widows, and found that they were in need of benefits despite their lack of dependency, in order to compensate them for disadvantages caused by sex discrimination. There is every indication that, as Wiesenfeld recognized, 420 U.S., at 644, "the framers of the Act legislated on the `then generally accepted presumption that a man is responsible for the support of his wife and children.' D. Hoskins & L. Bixby, Women and

Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973)."[^{Footnote 17} ]

Survivors' and old-age benefits were not extended to husbands and widowers until 1950. 64 Stat. 483, 485. The legislative history of this provision also demonstrates that Congress did not create the disparity between nondependent widows and widowers with a compensatory purpose. The impetus for change came from the Advisory Council on Social Security, which recommended benefits for "the aged, dependent husband . . . [and] widower." The purpose of this recommendation was "[t]o equalize the protection given to the dependents of women and men" because "[u]nder the present program, insured women lack some of the rights which insured men can acquire." Advisory Council on Social Security, Recommendations for Social Security Legislation, S. Doc. No. 208, 80th Cong., 2d Sess., 38 (1949). (Emphasis supplied in part.) It is clear from the report that the Advisory Council assumed that the provision of benefits to dependent husbands and widowers was the equivalent of the provision of benefits to wives and widows under the previous statute, and not a lesser protection deliberately made because of lesser need. Although the original bill, H. R. 6000, that became the Social Security Act Amendments of 1950 did not contain a provision for husbands' and widowers' benefits, the Senate Finance Committee added it, because "the committee believes that protection given to dependents of women and men should be made more comparable." S. Rep. No. 1669, 81st Cong., 2d Sess., 28 (1950). In 1950, as in 1939, there was simply no indication of an intention to create a differential treatment for the benefit of nondependent wives.

We conclude, therefore, that the differential treatment of nondependent widows and widowers results not, as appellant

asserts, from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent. This presents precisely the situation faced in Frontiero and Wiesenfeld. The only conceivable justification for writing the presumption of wives' dependency into the statute is the assumption, not verified by the Government in Frontiero, 411 U.S., at 689, or here, but based simply on "archaic and overbroad" generalizations, Schlesinger v. Ballard, 419 U.S., at 508, that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes.[^{Footnote 18} ] We held in Frontiero, and again in Wiesenfeld, and therefore hold again here, that such assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits.

Affirmed.

Footnotes

MR. JUSTICE STEVENS, concurring in the judgment.

Although my conclusion is the same, my appraisal of the relevant discrimination and my reasons for concluding that it is unjustified, are somewhat different from those expressed by MR. JUSTICE BRENNAN.

First, I agree with MR. JUSTICE REHNQUIST that the constitutional question raised by this plaintiff requires us to focus on his claim for benefits rather than his deceased wife's tax obligation. She had no contractual right to receive benefits or to control their payment; moreover, the payments are not a form of compensation for her services.^{Footnote 1} At the same salary

level, all workers must pay the same tax, whether they are male or female, married or single, old or young, the head of a large family or a small one. The benefits which may ultimately become payable to them or to a wide variety of beneficiaries - including their families, their spouses, future spouses, and even their ex-wives - vary enormously, but such variations do not convert a uniform tax obligation into an unequal one. The discrimination against this plaintiff would be the same if the benefits were funded from general revenues. In short, I am persuaded that the relevant discrimination in this case is against surviving male spouses, rather than against deceased female wage earners.^{Footnote 2}

Second, I also agree with MR. JUSTICE REHNQUIST that a classification which treats certain aged widows^{Footnote 3} more favorably than their male counterparts is not "invidious." Such a classification does not imply that males are inferior to females, cf. Mathews v. Lucas,  427 U.S. 495, 516 (STEVENS, J., dissenting); does not condemn a large class on the basis of the misconduct of an unrepresentative few, cf. Craig v. Boren,  429 U.S. 190, 211 (STEVENS, J., concurring); and does not add to the burdens of an already disadvantaged discrete minority.

Cf. Hampton v. Mow Sun Wong,  426 U.S. 88, 102 . It does, however, treat similarly situated persons differently solely because they are not of the same sex.

Third, MR. JUSTICE REHNQUIST correctly identifies two hypothetical justifications for this discrimination that are comparable to those the Court found acceptable in Mathews v. Lucas, supra, and Kahn v. Shevin,  416 U.S. 351 . Neither the "administrative convenience" rationale of Lucas, nor the "policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden," Kahn v. Shevin, supra, at 355, can be described as wholly irrational. Nevertheless, I find both justifications unacceptable in this case.

The administrative-convenience rationale rests on the assumption that the cost of providing benefits to nondependent widows is justified by eliminating the burden of requiring those who are dependent to establish that fact. MR. JUSTICE REHNQUIST'S careful analysis of the relevant data, see post, at 238-239, n. 7, demonstrates that at present only about 10% of the married women in the relevant age bracket are nondependent. Omitting any requirement that widows establish dependency therefore expedites the processing of about 90% of the applications. This convenience must be regarded as significant even though procedures could certainly be developed to minimize the burden.^{Footnote 4}

But what is the offsetting cost that Congress imposed on the Nation in order to achieve this administrative convenience? Assuming that Congress intended only to benefit dependent spouses, and that it has authorized payments to

nondependent widows to save the cost of administering a dependency requirement for widows, it has paid a truly staggering price for a relatively modest administrative gain: The cost of payments to the hundreds of thousands of widows who are not within the described purpose of the statute is perhaps $750 million a year.^{Footnote 5} The figures for earlier years were presumably smaller, but must still have been large in relation to the possible administrative savings. It is inconceivable that Congress would have authorized such large expenditures for an administrative purpose without the benefit of any cost analysis, or indeed, without even discussing the problem. I am therefore convinced that administrative convenience was not the actual reason for the discrimination.^{Footnote 6}

It is also clear that the disparate treatment of widows and widowers is not the product of a conscious purpose to redress the "legacy of economic discrimination" against females. Kahn v. Shevin, supra, at 359 (BRENNAN, J., dissenting). The widows who benefit from the disparate treatment are those who were sufficiently successful in the job market to become nondependent on their husbands. Such a widow is the least likely to need special benefits. The widow most in need is the one who is "suddenly 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." 416 U.S., at 354. To accept the Kahn justification we must presume that Congress deliberately gave a special benefit to those females least likely to have been victims of the historic discrimination discussed in Kahn. Respect for the legislative process precludes the assumption that the statutory discrimination is the product of such irrational lawmaking.

The step-by-step evolution of this statutory scheme included a legislative decision to provide benefits for all widows and a separate decision to provide benefits for dependent widowers. Admittedly, each of these separate judgments has

a rational and benign purpose. But I consider it clear that Congress never focused its attention on the question whether to divide nondependent surviving spouses into two classes on the basis of sex.^{Footnote 7} The history of the statute is entirely consistent with the view that Congress simply assumed that all widows should be regarded as "dependents" in some general sense, even though they could not satisfy the statutory support test later imposed on men.^{Footnote 8} It is fair to infer that habit, rather than analysis or actual reflection, made it seem acceptable to equate the terms "widow" and "dependent surviving spouse." That kind of automatic reflex is far different from either a legislative decision to favor females in order to compensate for past wrongs, or a legislative decision that the administrative savings exceed the cost of extending benefits to nondependent widows.

I am therefore persuaded that this discrimination against a group of males is merely the accidental byproduct of a traditional way of thinking about females. I am also persuaded that a rule which effects an unequal distribution of economic benefits solely on the basis of sex is sufficiently questionable that "due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve [the] interest" put forward by the Government as its justification. See Hampton v. Mow Sun Wong, 426 U.S., at 103.^{Footnote 9} In my judgment, something more than accident is necessary to justify the disparate treatment of persons who have as strong a claim to equal treatment as do similarly situated surviving spouses.

But if my judgment is correct, what is to be said about Kahn v. Shevin? For that case involved a discrimination between surviving spouses which originated in 1885; a discrimination of that vintage cannot reasonably be supposed to have been motivated by a decision to repudiate the 19th century presumption that females are inferior to males.^{Footnote 10} It

seems clear, therefore, that the Court upheld the Florida statute on the basis of a hypothetical justification for the discrimination which had nothing to do with the legislature's actual motivation. On this premise, I would be required to regard Kahn as controlling in this case, were it not for the fact that I believe precisely the same analysis applies to Weinberger v. Wiesenfeld,  420 U.S. 636 .

In Wiesenfeld, the Court rejected an attempt to use "mere recitation of a benign, compensatory purpose" as "an automatic shield," id., at 648, for a statute which was actually based on "`archaic and overbroad' generalization[s]," id., at 643. In Wiesenfeld, as in this case, the victims of the statutory discrimination were widowers. They were totally excluded from eligibility for benefits available to similarly situated widows, just as in this case nondependent widowers are totally excluded from eligibility for benefits payable to nondependent widows. The exclusion in Wiesenfeld was apparently the accidental byproduct of the same kind of legislative process that gave rise to Kahn and to this case. If there is inconsistency between Kahn and Wiesenfeld, as I believe there is, it is appropriate to follow the later unanimous holding rather than the earlier, sharply divided decision. And if the cases are distinguishable, Wiesenfeld is closer on its facts to this case than is Kahn.

For these reasons, and on the authority of the holding in Wiesenfeld, I concur in the Court's judgment.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join, dissenting.

In light of this Court's recent decisions beginning with Reed v. Reed,  404 U.S. 71 (1971), one cannot say that

there is no support in our cases for the result reached by the Court. One can, however, believe as I do that careful consideration of these cases affords more support for the opposite result than it does for that reached by the Court. Indeed, it seems to me that there are two largely separate principles which may be deduced from these cases which indicate that the Court has reached the wrong result.

The first of these principles is that cases requiring heightened levels of scrutiny for particular classifications under the Equal Protection Clause, which have originated in areas of the law outside of the field of social insurance legislation, will not be uncritically carried over into that field. This does not mean that the phrase "social insurance" is some sort of magic phrase which automatically mutes the requirements of the equal protection component of the Fifth Amendment. But it does suggest that in a legislative system which distributes benefit payments among literally millions of people there are at least two characteristics which are not found in many other types of statutes. The first is that the statutory scheme will typically have been expanded by amendment over a period of years so that it is virtually impossible to say that a particular amendment fits with mathematical nicety into a carefully conceived overall plan for payment of benefits. The second is that what in many other areas of the law will be relatively low-level considerations of "administrative convenience" will in this area of the law bear a much more vital relation to the overall legislative plan because of congressional concern for certainty in determination of entitlement and promptness in payment of benefits.

The second principle upon which I believe this legislative classification should be sustained is that set forth in our opinion in Kahn v. Shevin,  416 U.S. 351 (1974). The effect of the statutory scheme is to make it easier for widows to obtain benefits than it is for widowers, since the former

qualify automatically while the latter must show proof of need. Such a requirement in no way perpetuates or exacerbates the economic disadvantage which has led the Court to conclude that gender-based discrimination must meet a different test from other types of classifications. It is, like the property tax exemption to widows in Kahn, a differing treatment which "`rest[s] upon some ground of difference having a fair and substantial relation to the object of the legislation.'" Id., at 355.

I

Both Weinberger v. Wiesenfeld,  420 U.S. 636 (1975), and Frontiero v. Richardson,  411 U.S. 677 (1973), are undoubtedly relevant to the decision of this case, but the plurality overstates that relevance when it says that these two cases "plainly require affirmance of the judgment of the District Court." Ante, at 204. The disparate treatment of widows and widowers by this Act is undoubtedly a gender-based classification, but this is the beginning and not the end of the inquiry. In the case of classifications based on legitimacy, and in the case of irrebuttable presumptions, constitutional doctrine which would have invalidated the same distinctions in other contexts has been held not to require that result when they were used within comprehensive schemes for social insurance. The same result should obtain in the case of constitutional principles dealing with gender-based distinctions.

In Levy v. Louisiana,  391 U.S. 68 (1968), the Court held that a Louisiana statute which allowed legitimate but not illegitimate children to recover for the wrongful death of their mother violated the Equal Protection Clause of the Fourteenth Amendment. Another Louisiana statute was challenged on similar grounds in Weber v. Aetna Cas. & Surety Co.,  406 U.S. 164 (1972). The statute in Weber was defended on the ground that it did not preclude entirely

the recovery of workmen's compensation by illegitimate children, since acknowledged illegitimates were permitted to recover on the same basis as legitimate children. The Court rejected that distinction, however, and held that this statute also violated the Equal Protection Clause.

Two Terms later we held invalid under the Fifth Amendment a portion of the child's benefits provisions of the Social Security Act. The challenged provision flatly excluded one class of illegitimate children notwithstanding their actual dependence upon a disabled parent, while granting benefits to other classes of illegitimates and to legitimates on the basis of demonstrated or presumed dependence upon such a parent. Jimenez v. Weinberger,  417 U.S. 628 (1974). We relied on our earlier decision in Weber, supra, to reach this result.

Last Term, however, in Mathews v. Lucas,  427 U.S. 495 (1976), we upheld the portion of these same child's benefits provisions which conclusively presume dependency for all but a specified group of illegitimate children. This use of illegitimacy to define a group required to present proof of dependency was held not to deny equal protection to those singled out.

In Stanley v. Illinois,  405 U.S. 645 (1972), we held that Illinois might not under the equal protection guarantee of the Fourteenth Amendment deny a hearing on parental fitness to an unwed father when such a hearing was granted to all other parents whose custody of their children was challenged. In Cleveland Board of Education v. LaFleur,  414 U.S. 632 (1974), we likewise held invalid school board regulations requiring pregnant school teachers to take unpaid maternity leave commencing four or five months before their expected birth.

Yet, the Term following LaFleur, we decided Weinberger v. Salfi,  422 U.S. 749 (1975), in which a three-judge District Court had held invalid a duration-of-relationship requirement

for surviving wives in order that they might receive benefits under the Social Security Act. The District Court relied on Stanley and LaFleur, but we declined to extend those cases into the area of a complex social insurance scheme such as this Act, saying:

"We think that the District Court's extension of the holdings of Stanley, Vlandis, and LaFleur to the eligibility requirement in issue here would turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution." 422 U.S., at 772.

The Court's recent treatment of gender-based discrimination begins with Reed v. Reed,  404 U.S. 71 (1971), in which the Court invalidated a provision of the Idaho probate code which contained an across-the-board flat preference for men over women as putative administrators of the estate of a decedent. The following Term we relied on the equal protection component of the Fifth Amendment to hold invalid an Act of Congress relating to military pay which allowed a male member of the uniformed services to claim his wife as a dependent without any showing of such a fact, but which required a female member to show that her husband was in fact dependent on her before she could make such a claim. The consequences of spousal dependency were increased fringe benefits which had been provided in an effort to make the uniformed services competitive with business and industry. Frontiero v. Richardson, supra, at 679.

The next Term, however, we refused to invalidate at the behest of a male property taxpayer a provision of Florida law which allowed widows, but not widowers, an exemption from property taxation in the amount of $500. Kahn v. Shevin,  416 U.S. 351 (1974). Weinberger v. Wiesenfeld, decided one year later, relied on Frontiero, supra, in holding invalid a section of the Social Security Act which allowed

benefits to a surviving widow but flatly denied them to a surviving widower. The Court said:

"Since the gender-based classification of 402 (g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, `[b]y providing dissimilar treatment for men and women who are . . . similarly situated, the challenged section violates the [Due Process] Clause.' Reed v. Reed,  404 U.S. 71, 77 (1971)." 420 U.S., at 653.

Two observations about Wiesenfeld are pertinent. First, the provision of the Social Security Act held unconstitutional there flatly denied surviving widowers the possibility of obtaining benefits no matter what showing of need might be made. The section under attack in the instant case does not totally foreclose widowers, but simply requires from them a proof of dependency which is not required from similarly situated widows. Second, Wiesenfeld was decided before either Weinberger v. Salfi, supra, or Mathews v. Lucas, supra. Each of those decisions refused uncritically to extend into the field of social security law constitutional proscriptions against distinctions based on illegitimacy and irrebuttable presumptions which had originated in other areas of the law. While the holding of Wiesenfeld is not inconsistent with Salfi or Lucas, its reasoning is not in complete harmony with the recognition in those cases of the special characteristics of social insurance plans.

II

Those special characteristics arise from the nature of the legislative problem which numerous sessions of Congress have had to face in defining the coverage of the Social Security Act. The program has been participatory from the outset, in the sense that benefits have not been extended to persons

without at least a close relationship to a person paying into the system during his working life. But Congress did not legislate with the idea that it was fulfilling any narrow contractual obligation owed to the