Alabama, together with every other State, Puerto Rico, the Virgin Islands, the District of Columbia, and Guam, participates in the Federal Government's Aid to Families With Dependent Children (AFDC) program, which was established by the Social Security Act of 1935.
The AFDC program is one of three major categorical public assistance programs established by the Social Security Act of 1935. See U. S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 5-7 (1964) (hereafter cited as Advisory Commission Report). The category singled out for welfare assistance by AFDC is the "dependent child," who is defined in § 406 of the Act, 49 Stat. 629, as amended, 42 U. S. C. § 606 (a) (1964 ed., Supp. II), as an age-qualified
Under the Alabama regulation, an "able-bodied man, married or single, is considered a substitute father of all
The testimony below by officials responsible for the administration of Alabama's AFDC program establishes that "cohabitation," as used in the regulation, means essentially that the man and woman have "frequent" or "continuing" sexual relations. With regard to how frequent or continual these relations must be, the testimony is conflicting. One state official testified that the regulation applied only if the parties had sex at least once a week; another thought once every three months would suffice; and still another believed once every six months sufficient. The regulation itself provides that pregnancy or a baby under six months of age is prima facie evidence of a substitute father.
Mrs. Smith and her four children, ages 14, 12, 11, and 9, reside in Dallas County, Alabama. For several years prior to October 1, 1966, they had received aid under the AFDC program. By notice dated October 11, 1966, they were removed from the list of persons eligible to receive such aid. This action was taken by the Dallas County welfare authorities pursuant to the substitute father regulation, on the ground that a Mr. Williams came to her home on weekends and had sexual relations with her.
Three of Mrs. Smith's children have not received parental support or care from a father since their natural father's death in 1955. The fourth child's father left home in 1963, and the child has not received the support or care of his father since then. All the children live in the home of their mother, and except for the substitute father regulation are eligible for aid. The family is not receiving any other type of public assistance, and has been living, since the termination of AFDC payments, on Mrs. Smith's salary of between $16 and $20 per week which she earns working from 3:30 a. m. to 12 noon as a cook and waitress.
Mr. Williams, the alleged "substitute father" of Mrs. Smith's children, has nine children of his own and lives with his wife and family, all of whom are dependent upon him for support. Mr. Williams is not the father of any of Mrs. Smith's children. He is not legally obligated, under Alabama law, to support any of Mrs. Smith's
The AFDC program is based on a scheme of cooperative federalism. See generally Advisory Commission Report, supra, at 1-59. It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 49 Stat. 627,
One of the statutory requirements is that "aid to families with dependent children . . . shall be furnished with reasonable promptness to all eligible individuals . . . ." 64 Stat. 550, as amended, 42 U. S. C. § 602 (a) (9) (1964 ed., Supp. II). As noted above, § 406 (a) of the Act defines a "dependent child" as one who has been deprived of "parental" support or care by reason of the death, continued absence, or incapacity of a "parent." 42 U. S. C. § 606 (a) (1964 ed., Supp. II). In combination, these two provisions of the Act clearly require participating States to furnish aid to families with children who have a parent absent from the home, if such families are in other respects eligible. See also Handbook, pt. IV, § 2200 (b) (4).
The State argues that its substitute father regulation simply defines who is a nonabsent "parent" under
We think it well to note at the outset what is not involved in this case. There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need
Also not involved in this case is the question of Alabama's general power to deal with conduct it regards as immoral and with the problem of illegitimacy. This appeal raises only the question whether the State may deal with these problems in the manner that it has here— by flatly denying AFDC assistance to otherwise eligible dependent children.
Alabama's argument based on its interests in discouraging immorality and illegitimacy would have been quite relevant at one time in the history of the AFDC program. However, subsequent developments clearly establish that these state interests are not presently legitimate justifications for AFDC disqualification. Insofar as this or any similar regulation is based on the State's asserted interest in discouraging illicit sexual behavior and illegitimacy, it plainly conflicts with federal law and policy.
A significant characteristic of public welfare programs during the last half of the 19th century in this country was their preference for the "worthy" poor. Some poor persons were thought worthy of public assistance, and others were thought unworthy because of their supposed incapacity for "moral regeneration." H. Leyendecker, Problems and Policy in Public Assistance 45-57 (1955); Wedemeyer & Moore, The American Welfare System, 54 Calif. L. Rev. 326, 327-328 (1966). This worthy-person concept characterized the mothers' pension welfare
In this social context it is not surprising that both the House and Senate Committee Reports on the Social Security Act of 1935 indicate that States participating in AFDC were free to impose eligibility requirements relating to the "moral character" of applicants. H. R. Rep. No. 615, 74th Cong., 1st Sess., 24 (1935); S. Rep. No. 628, 74th Cong., 1st Sess., 36 (1935). See also 79 Cong. Rec. 5679 (statement by Representative Jenkins) (1935). During the following years, many state AFDC plans included provisions making ineligible for assistance dependent children not living in "suitable homes." See Bell, supra, at 29-136 (1965). As applied, these suitable home provisions frequently disqualified children on the basis of the alleged immoral behavior of their mothers. Ibid.
In the 1940's, suitable home provisions came under increasing attack. Critics argued, for example, that such disqualification provisions undermined a mother's confidence and authority, thereby promoting continued dependency; that they forced destitute mothers into increased immorality as a means of earning money; that they were habitually used to disguise systematic racial
In the 1950's, matters became further complicated by pressures in numerous States to disqualify illegitimate children from AFDC assistance. Attempts were made in at least 18 States to enact laws excluding children on the basis of their own or their siblings' birth status. See Bell, supra, at 72-73. All but three attempts failed to pass the state legislatures, and two of the three successful bills were vetoed by the governors of the States involved. Ibid. In 1960, the federal agency strongly disapproved of illegitimacy disqualifications. See Bell, supra, at 73-74.
Nonetheless, in 1960, Louisiana enacted legislation requiring, as a condition precedent for AFDC eligibility, that the home of a dependent child be "suitable," and specifying that any home in which an illegitimate child had been born subsequent to the receipt of public assistance would be considered unsuitable. Louisiana Acts, No. 251 (1960). In the summer of 1960, approximately 23,000 children were dropped from Louisiana's AFDC rolls. Bell, supra, at 137. In disapproving this legislation, then Secretary of Health, Education, and Welfare Flemming issued what is now known as the Flemming Ruling, stating that as of July 1, 1961,
Congress quickly approved the Flemming Ruling, while extending until September 1, 1962, the time for state compliance. 75 Stat. 77, as amended 42 U. S. C. § 604 (b).
In 1962, Congress made permanent the provision for AFDC assistance to children placed in foster homes and extended such coverage to include children placed in child-care institutions. 76 Stat. 180, 185, 193, 196, 207, 42 U. S. C. § 608. See S. Rep. No. 1589, 87th Cong., 2d Sess., 13 (1962). At the same time, Congress modified the Flemming Ruling by amending § 404 (b) of the Act. As amended, the statute permits States to disqualify from AFDC aid children who live in unsuitable homes, provided they are granted other "adequate care and assistance." 76 Stat. 189, 42 U. S. C. § 604 (b). See S. Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962).
Thus, under the 1961 and 1962 amendments to the Social Security Act, the States are permitted to remove a child from a home that is judicially determined to be so unsuitable as to "be contrary to the welfare of such child." 42 U. S. C. § 608 (a) (1). The States are also permitted to terminate AFDC assistance to a child living in an unsuitable home, if they provide other adequate care and assistance for the child under a general welfare program. 42 U. S. C. § 604 (b). See S. Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962). The statutory approval of the Flemming Ruling, however, precludes the States from otherwise denying AFDC assistance to dependent children on the basis of their mothers' alleged immorality or to discourage illegitimate births.
The most recent congressional amendments to the Social Security Act further corroborate that federal public welfare policy now rests on a basis considerably more
In sum, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC.
Alabama's second justification for its substitute father regulation is that "there is a public interest in a State not undertaking the payment of these funds to families who because of their living arrangements would be in the same situation as if the parents were married, except for the marriage." In other words, the State argues that since in Alabama the needy children of married couples are not eligible for AFDC aid so long as their father is in the home, it is only fair that children of a mother who cohabits with a man not her husband and not their father be treated similarly. The difficulty with this argument is that it fails to take account of the circumstance that children of fathers living in the home are in a very different position from children of mothers who cohabit with men not their fathers: the child's father has a legal duty to support him, while the unrelated substitute father, at least in Alabama, does not. We believe Congress intended the term "parent" in § 406 (a) of the Act, 42 U. S. C. § 606 (a), to include only those persons with a legal duty of support.
The Social Security Act of 1935 was part of a broad legislative program to counteract the depression. Congress was deeply concerned with the dire straits in which all needy children in the Nation then found themselves.
The AFDC program was designed to meet a need unmet by programs providing employment for breadwinners. It was designed to protect what the House Report characterized as "[o]ne clearly distinguishable group of children." H. R. Rep. No. 615, 74th Cong., 1st Sess., 10 (1935). This group was composed of children in families without a "breadwinner," "wage earner," or "father," as the repeated use of these terms throughout the Report of the President's Committee,
The question for decision here is whether Congress could have intended that a man was to be regarded as a child's parent so as to deprive the child of AFDC eligibility despite the circumstances: (1) that the man did not in fact support the child; and (2) that he was not legally obligated to support the child. The State correctly observes that the fact that the man in question does not actually support the child cannot be determinative, because a natural father at home may fail actually to support his child but his presence will still render the child ineligible for assistance. On the question whether the man must be legally obligated to provide support before he can be regarded as the child's parent, the State has no such cogent answer. We think the answer is quite clear: Congress must have meant by the term "parent" an individual who owed to the child a state-imposed legal duty of support.
It is clear, as we have noted, that Congress expected "breadwinners" who secured employment would support their children. This congressional expectation is most reasonably explained on the basis that the kind of breadwinner Congress had in mind was one who was legally obligated to support his children. We think it beyond reason to believe that Congress would have considered that providing employment for the paramour of a deserted mother would benefit the mother's children whom he was not obligated to support.
By a parity of reasoning, we think that Congress must have intended that the children in such a situation remain eligible for AFDC assistance notwithstanding their mother's impropriety. AFDC was intended to provide economic security for children whom Congress could not reasonably expect would be provided for by simply securing
A contrary view would require us to assume that Congress, at the same time that it intended to provide programs for the economic security and protection of all children, also intended arbitrarily to leave one class of destitute children entirely without meaningful protection. Children who are told, as Alabama has told these appellees, to look for their food to a man who is not in the least obliged to support them are without meaningful protection. Such an interpretation of congressional intent would be most unreasonable, and we decline to adopt it.
Our interpretation of the term "parent" in § 406 (a) is strongly supported by the way the term is used in other sections of the Act. Section 402 (a) (10) requires that, effective July 1, 1952, a state plan must:
The "parent" whom this provision requires to be reported to law enforcement officials is surely the same "parent" whose desertion makes a child eligible for AFDC
The pattern of this legislation could not be clearer. Every effort is to be made to locate and secure support payments from persons legally obligated to support a deserted child.
Alabama's substitute father regulation, as written and as applied in this case, requires the disqualification of otherwise eligible dependent children if their mother "cohabits" with a man who is not obligated by Alabama law to support the children. The regulation is therefore invalid because it defines "parent" in a manner that is inconsistent with § 406 (a) of the Social Security Act. 42 U. S. C. § 606 (a).
We think it well, in concluding, to emphasize that no legitimate interest of the State of Alabama is defeated
All responsible governmental agencies in the Nation today recognize the enormity and pervasiveness of social ills caused by poverty. The causes of and cures for poverty are currently the subject of much debate. We hold today only that Congress has made at least this one determination: that destitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute father.
MR. JUSTICE DOUGLAS, concurring.
The Court follows the statutory route in reaching the result that I reach on constitutional grounds. It is, of course, traditional that our disposition of cases should, if possible, be on statutory rather than constitutional grounds, unless problems of statutory construction are insurmountable. E. g., Harmon v. Brucker, 355 U.S. 579, 581.
We do have, however, in this case a long-standing administrative construction that approves state AFDC plans containing a man-in-the-house provision.
The Department of Health, Education, and Welfare balked at the Alabama provision only because it reached all nonmarital sexual relations of the mother, not just nonmarital relations on a regular basis in the mother's house.
The Alabama regulation describes three situations in which needy children, otherwise eligible for relief, are to be denied financial assistance. In none of these is the child to blame. The disqualification of the family, and hence the needy child, turns upon the "sin" of the mother.
First, if a man not married to the mother and not the father of the children lives in her home for purposes of cohabiting with her, the children are cast into the outer darkness.
Second, if a man who is not married to the mother and is not the father of the children visits her home for the
Third, if a man not married to the mother and not the father of the children cohabits with her outside the home, then the needy children are likewise denied relief. In each of these three situations the needy family is wholly cut off from AFDC assistance without considering whether the mother's paramour is in fact aiding the family, is financially able to do so, or is legally required to do so. Since there is "sin," the paramour's wealth or indigency is irrelevant.
In other words, the Alabama regulation is aimed at punishing mothers who have nonmarital sexual relations. The economic need of the children, their age, their other means of support, are all irrelevant. The standard is the so-called immorality of the mother.
The other day in a comparable situation we held that the Equal Protection Clause of the Fourteenth Amendment barred discrimination against illegitimate children. We held that they cannot be denied a cause of action because they were conceived in "sin," that the making of such a disqualification was an invidious discrimination. Levy v. Louisiana, 391 U.S. 68. I would think precisely the same result should be reached here. I would say that the immorality of the mother has no rational connection with the need of her children under any welfare program.
I would affirm this judgment for the reasons more fully elaborated in the opinion of the three-judge District Court. Smith v. King, 277 F.Supp. 31, 38-40.
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.
States which, according to HEW, currently have "man-in-the-house" policies in their plans for the Federal-State program of Aid to Families with Dependent Children.
State and effective date of Status of subsequent revisions submitted approved state policy. for approval and incorporation in the State's plan. Alabama........ Dec. 1962 Revision dated July 1964 and all subsequent revisions including an Administrative Letter of Nov. 13, 1967, are being held pending approval. Arizona........ Nov. 1963 Latest revision incorporated May 24, 1967. Arkansas....... Aug. 1959 District of Jan. 1955 A revision dated Dec. 27, 1960, was incorporated Columbia. into the approved plan on Jan. 13, 1961; however, when the District's plan manual was revised and resubmitted as the State's plan, in June 1964, the "man-in-the-house" provisions were not accepted and together with subsequent revisions are still pending approval. Florida......... July 1959 Georgia........ April 1952 Indiana .................. A "man-in-the-house" provision, not previously in the State's plan, was submitted in Sept. 1964, to be effective Aug. 1964, and is still being held pending approval. Kentucky....... June 1962 Revised state plan pages including these provisions were approved for incorporation in 1964 and 1965. Louisiana... Jan. 1, 1961 Revisions submitted in 1962 and 1964 are still being held pending approval. Michigan....... July 1955 Revisions dated Apr. 2, 1963, were approved June 4, 1963.
State and effective date of Status of subsequent revisions submitted approved state policy. for approval and incorporation in the State's plan. Mississippi...... Feb. 1954 Revisions submitted in 1966 and subsequently are being held pending approval. Missouri......... Oct. 1951 New Hampshire......... 1948 New Mexico...... April 1964 A revised state plan page including this provision was approved for incorporation June 16, 1967. North Carolina.. Sept. 1955 Oklahoma.......... May 1963 A revised state plan page including this provision was approved for incorporation Mar. 1964 and a correction of a clerical error which would have changed the sense of the provision was made and accepted Feb. 1967. South Carolina... Oct. 1956 Tennessee........ June 1955 Three revisions, beginning in 1964, are being held pending approval. Texas............ Nov. 1959 Virginia......... July 1956 A revision dated July 1962 is still being held pending approval.
"The Department of Health, Education, and Welfare in January 1961 advised the State agencies administering title IV of the Social Security Act—aid to dependent children—that after June 30, 1961, grants to States would not be available if the State terminated assistance to children in a home determined to be unsuitable unless the State made other provision for the children affected. Section 4 of your committee's bill would provide that the requirement made by the Department of Health, Education, and Welfare would not become effective in States which took the type of action described, as the result of a State statute requiring such action, before the 61st day after the end of the regular session of such State's legislature, such regular session beginning following the enactment of this section. One or two of the States affected by the Department's ruling do not have regular sessions of their legislatures in 1961 and would accordingly be safeguarded against the withholding of funds until such time as their legislatures have had regular sessions and have had an opportunity to modify the State statutes involved." S. Rep. No. 165, 87th Cong., 1st Sess., 6 (1961).