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.
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).
Mrs. Hannah Goldfarb worked as a secretary in the New York City public school system for almost 25 years until
The District Court declared § 402 (f) (1) (D) unconstitutional primarily on the authority of Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), stating:
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.
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
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:
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
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
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.
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.
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:
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
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
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.
But "inquiry into the actual purposes" of the discrimination,
Moreover, the general scheme of OASDI shows that dependence on the covered wage earner is the critical factor in determining beneficiary categories.
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.
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
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.
Second, I also agree with MR. JUSTICE REHNQUIST that a classification which treats certain aged widows
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.
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
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
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.
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
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
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
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
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
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.
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
One is that the resulting statute, like the process which produced it, extends benefits in a piecemeal fashion. There will be some individuals with needs demonstrably as great as those within a class of qualifying beneficiaries who will nonetheless be treated less favorably than that class. This is because these classes, formulated and reformulated over a period of decades, could not perfectly mirror the abstract definition of equality of need unless Congress were to burden the system with numerous individualized determinations which might frustrate the primary purposes of the Act.
Another characteristic of the Social Security statute which is predictable from the manner of its enactment, is the balance between a desire that payments correlate with degree of need and a recognition that precise correlation is unattainable given the administrative realities of the situation. No one would contend, for example, that all wives of program participants, who are over 62 and entitled to old-age or disability-insurance benefits in their own right equal to no more than one-half of their husband's primary amount, are needy. Nonetheless the administrative problems of determining actual need have led Congress to employ these and factors like them as the determinants of eligibility. 42 U. S. C. § 402 (b) (1) (1970 ed. and Supp. V). The overinclusiveness
The provisions at issue in this case, relating to widows' and widowers' benefits, display all the earmarks of their origins in the oft-repeated process of legislative reconsideration and expansion of beneficiary groups. As originally enacted in 1935, the Social Security Act provided for old-age benefits only to the wage earner. 49 Stat. 623. In 1939, additional provisions were made for benefits to the wage earner's family, including wives and widows, but not including husbands and widowers. The widow's benefit was in an amount larger by one-half than that for the wife, and was available notwithstanding the widow's primary entitlement to benefits in an amount greater than permissible in the case of a wife.
In 1950, Congress created two new categories of old-age and survivors' insurance benefits—for husbands and widowers. With one exception, these provisions were identical to the sections dealing with wives' and widows' benefits. A husband or widower was required additionally to prove that he had been dependent upon his wife for half of his support at the time she became eligible for benefits, or, in the case of the widower, at the time of her death. 64 Stat. 483, 485. This enactment obviously reflected a congressional judgment that there were needy persons in those groups who should properly be able to receive benefits, but that their numbers were not so great as to justify automatic qualification on the basis of age and marriage to a wage-earning wife. Proof of dependence upon the wife for one-half of a husband's support was adopted as a suitable means of eliminating large numbers of men with independent incomes, while preserving an entitlement to benefits in the cases of those shown to lack substantial means of support apart from funds actually brought in by the wife.
Subsequent amendments have altered the statute somewhat —predictably in the direction of expanded coverage
The second legislative judgment implicit in the widow's and widower's provisions is that widows, as a practical matter, are much more likely to be without adequate means of support than are widowers. The plurality opinion makes much of establishing this point, ante, at 212-217, that the absence of any dependency prerequisite to the award of widow's benefits reflects a judgment, resting on "administrative convenience," that dependence among aged widows is frequent enough to justify waiving the requirement entirely. I differ not with the recognition of this administrative convenience
Whatever his actual needs, Goldfarb would, of course, have no complaint if Congress had chosen to require proof of dependency by widows as well as widowers, or if it had simply refrained from making any provision whatever for benefits to surviving spouses. "A legislature may address a problem `one step at a time,' or even `select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)." Jefferson v. Hackney, 406 U.S. 535, 546 (1972); Dandridge v. Williams, 397 U.S. 471, 487 (1970). See Geduldig v. Aiello, 417 U.S. 484, 495 (1974); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). Any claim which he has must therefore turn upon the alleged impropriety of giving benefits to widows
A close analogue to this case is presented by our decision last Term in Mathews v. Lucas, 427 U.S. 495 (1976). The plaintiffs there challenged the OASDI provisions for children's benefits, which require no proof of dependency by legitimate children or certain categories of illegitimates,
The same reasoning should control in the case before us.
Perhaps because the reasons asserted for "heightened scrutiny" of gender-based distinctions are rooted in the fact that women have in the past been victims of unfair treatment, see Frontiero v. Richardson, 411 U. S., at 684-688, the plurality says that the difference in treatment here is not only between a widow and a widower, but between the respective deceased spouses of the two. It concludes that wage-earning wives are deprived "`of protection for their families which men receive as a result of their employment.'" Ante, at 206.
But this is a questionable tool of analysis which can be used to prove virtually anything. It might just as well have been urged in Kahn v. Shevin, 416 U.S. 351 (1974), where we upheld a Florida property tax exemption redounding to the benefit of widows but not widowers, that the real discrimination was between the deceased spouses of the respective widow and widower, who had doubtless by their contributions to the family or marital community helped make possible the acquisition of the property which was now being disparately taxed.
Viewed from the perspective of the recipient of benefits, the sections involved here are entirely distinguishable from those which this Court has previously struck down. In Jimenez v. Weinberger, 417 U.S. 628 (1974), the Court invalidated one aspect of the provisions for surviving children's benefits which were considered in Mathews v. Lucas, 427 U.S. 495 (1976). Those provisions allow legitimate and certain categories of illegitimate children
In Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), the Court again invalidated OASDI provisions which denied one group any opportunity to show themselves proper beneficiaries given the apparent statutory purpose. A widow not qualifying for widow's benefits was entitled to a mother's benefit if she had in her care a minor child qualifying for a child's
This case is also distinguishable from Frontiero v. Richardson, supra, in the sense that social insurance differs from compensation for work done. While there is no basis for assessing the propriety of a given allocation of funds within a social insurance program apart from an identifiable legislative purpose, a compensatory scheme may be evaluated under the principle of equal pay for equal work done. This case is therefore unlike Frontiero, where the Court invalidated sex discrimination among military personnel in their entitlement to increased quarters allowances on account of marriage, and in the eligibility of their spouses for dental and medical care. These compensatory fringe benefits were available to male employees as a matter of course, but were unavailable to females except on proof that their husbands depended on them for over one-half of their support. Since males got such compensatory benefits even though their wives were not so dependent, females with nondependent husbands were effectively denied equal compensation for equal effort. The same is not true here, where the benefit payments to survivors are neither contractual nor compensatory for work done, and where there is thus no comparative basis for evaluating the propriety of a given benefit apart from the legislative purpose.
The very most that can be squeezed out of the facts of this case in the way of cognizable "discrimination" is a classification which favors aged widows. Quite apart from any considerations of legislative purpose and "administrative convenience" which may be advanced to support the classification, this is scarcely an invidious discrimination. Two of our recent cases have rejected efforts by men to challenge similar classifications. We have held that it is not improper for the military to formulate "up-or-out" rules taking into account sex-based differences in employment opportunities in a way working to the benefit of women, Schlesinger v. Ballard, 419 U.S. 498 (1975), or to grant solely to widows a property tax exemption in recognition of their depressed plight. Kahn v. Shevin, 416 U.S. 351 (1974). A waiver of the dependency prerequisite for benefits, in the case of this same class of aged widows, under a program explicitly aimed at the assistance of needy groups, appears to be well within the holding of the Kahn case, which upheld a flat $500 exemption to widows, without any consideration of need.
The classification challenged here is "overinclusive" only in the sense that widows over 62 may obtain benefits without a showing of need, whereas widowers must demonstrate need. Because this overinclusion is rationally justifiable, given available empirical data, on the basis of "administrative convenience," Mathews v. Lucas, supra, is authority for upholding it. The differentiation in no way perpetuates the economic discrimination which has been the basis for heightened scrutiny of gender-based classifications, and is, in fact, explainable as a measure to ameliorate the characteristically depressed condition of aged widows. Kahn v. Shevin, supra, is therefore also authority for upholding it. For both of these reasons, I would reverse the judgment of the District Court.
"The widower . . . of an individual who died a fully insured individual, if such widower—
"(A) has not remarried,
"(B) (i) has attained age 60, or (ii) has attained age 50 . . . and is under a disability . . . ,
"(C) has filed application for widower's insurance benefits . . . ,
"(D) (i) was receiving at least one-half of his support . . . from such individual at the time of her death, or if such individual had a period of disability which did not end prior to the month in which she died, at the time such period began or at the time of her death, and filed proof of such support within two years after the date of such death . . . , or (ii) was receiving at least one-half of his support . . . from such individual at the time she became entitled to old-age . . . insurance benefits. . . , and filed proof of such support within two years after the month in which she became entitled to such benefits . . . and,
"(E) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of his deceased wife,
"shall be entitled to a widower's insurance benefit . . . ."
Compare 42 U. S. C. § 402 (e) (1) (1970 ed. and Supp. V), which provides, in pertinent part:
"The widow . . . of an individual who died a fully insured individual, if such widow . . .
"(A) is not married,
"(B) (i) has attained age 60, or (ii) has attained age 50 . . . and is under a disability . . . ,
"(C) (i) has filed application for widow's insurance benefits . . . and
"(D) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of such deceased individual,
"shall be entitled to a widow's insurance benefit . . . ."
In order for Mr. Goldfarb to have satisfied § 402 (f) (1) (D), his wife would have to have been earning three times what he earned. According to Brief for Appellant 25: "As a practical matter, only husbands whose wives contribute 75 percent of the family income meet [the dependency] test." That is because in order to meet the test, the wife must have provided for all of her own half of the family budget, plus half of her husband's share. For more elaborate descriptions of the dependency calculation, see 20 CFR § 404.350 (1976); Social Security Claims Manual, §§ 2625, 2628. See also Brief for Appellant 25-26, and n. 14; Brief for Appellee 5 n. 7.
But "the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme." Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975). That inquiry in this case demonstrates that § 402 (f) (1) (D) has no such remedial purpose. See Part IV-B, infra. Moreover, the classifications challenged in Wiesenfeld and in this case rather than advantaging women to compensate for past wrongs compounds those wrongs by penalizing women "who do work and whose earnings contribute significantly to their families' support." Wiesenfeld, supra, at 645.
"While such a limitation doubtless proves in particular cases to be `under-inclusive' or `over-inclusive' in light of its presumed purpose, it is nonetheless a widely accepted response to legitimate interests in administrative economy and certainty of coverage for those who meet its terms." Id., at 776.
Yet administrative convenience and certainty of result have been found inadequate justifications for gender-based classifications. Reed v. Reed, 404 U.S. 71, 76 (1971); Frontiero v. Richardson, 411 U.S. 677, 690 (1973); Stanley v. Illinois, 405 U.S. 645, 656-657 (1972) Cf. Mathews v. Lucas, 427 U.S. 495, 509-510 (1976).
For the reasons stated in Part IV-B of MR. JUSTICE BRENNAN'S opinion, the Secretary's alternative explanation of the statute as being a welfare measure intended to alleviate the poverty of elderly widows is plainly unacceptable.
"[C]hildren of covered female workers were eligible for survivors' benefits only in limited circumstances . . . and no benefits whatever were made available to husbands or widowers on the basis of their wives' covered employment." Weinberger v. Wiesenfeld, 420 U. S., at 643-644.
The disqualification of a woman's surviving children if they had received any support from their father, § 202 (c) (4), 53 Stat. 1365, is particularly difficult to reconcile with the theory that the legislative motive was a conscious desire to remedy sex discrimination.
Similarly, in extending benefits to dependent widowers, Congress made no mention of any determination that nondependent widowers were less needy than nondependent widows, or that nondependent widows deserved greater benefits as a remedy for sex discrimination. See ante, at 216.
"`It was all Mrs. Bumble. She would do it,' urged Mr. Bumble; first looking round to ascertain that his partner had left the room.
"`That is no excuse,' replied Mr. Brownlow. `You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.
"`If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, `the law is a ass—a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.'" C. Dickens, The Adventures of Oliver Twist, c. LI (emphasis added).
"Wife's Insurance Benefits" in the amount of one-half the husband's primary benefit, were to be given to a program participant's wife if she was over 65, lived with her husband (or received support from him, see 53 Stat. 1378) at the time of filing her application, and was not entitled to primary benefits of her own in an amount equal to or greater than one-half of her husband's primary amount.
"Widow's Insurance Benefits" equal to three-fourths the deceased husband's primary benefit, were made available to an unmarried widow over 65, who lived with the wage earner (or received support from him) at the time of his death, and was not entitled to primary benefits on her own equal to or greater than three-fourths of the husband's primary amount.
In addition, "Widow's Current Insurance Benefits" were made available to one failing to qualify for the widow's benefit solely on account of age, who had in her care a child qualifying for "Child's Insurance Benefits" under still another section of the amended statute. The amendments also provided for "Parent's Insurance Benefit" and "Lump-Sum Death Payments." 53 Stat. 1364-1367.
The manner in which these provisions were drafted makes clear that each involved a separate congressional judgment about the most appropriate definition and actual needs of each group.
"The day of large families and of the farm economy, when aged parents were thereby assured comfort in their declining years, has passed for a large proportion of our population. This change has had particularly devastating effect on the sense of security of the aged women of our country.
"Women as a rule live longer than men. Wives are often younger than their husbands. Consequently, the probabilities are that a woman will outlive her husband. Old-age insurance benefits for the husband, supplemented during his life by an allowance payable on behalf of his wife, fall considerably short, therefore, of providing adequate old-age security."
Hearings on Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 31-32 (1939).
Likewise, the House Committee Report described widows over 65, widows with children, orphans, and dependent parents over 65 (to whom the 1939 amendments extended benefits) as the "groups of survivors whose probable need is greatest." H. R. Rep. No. 728, 76th Cong., 1st Sess., 11 (1939). Thus, there is good reason to suppose that the 1939 enactment of a provision for widow's benefits was in response to congressional perception of substantial poverty among the large group of aged widows.
The problem persists today in proportions far greater than among the parallel group of aged widowers. In 1974, two out of three poor persons over 65 were women. Four out of five men over 65 were married, but 52% of aged women were widows. Of older women living alone, 33.4% were below the poverty line. Task Force on Women and Social Security, Women and Social Security: Adapting to a New Era, prepared for the Senate Special Committee on Aging, 94th Cong., 1st Sess., 37, 42, 68-69 (Comm. Print 1975).
With regard to the group of women otherwise qualifying for widow's benefits, this figure is significantly higher. Whereas the employment rate among women between 20 and 54 is about 56%, the rate for women 55 and over is only 23%. (These figures are derived from data appearing id., at 27-28 (Tables 7-1, 7-2).) Because it is dependency at the time of the working spouse's death which is relevant under the statute, the work habits of those over 55 are most relevant for determining the actual number of widows who would be excluded by a dependency test. Even if married women over 55 work as often as unmarried women in that group (an unlikelihood, given the greater probability that unmarried women will have no alternative means of support), this 23% figure indicates that they work just over one-half as often as the population of all married women (43% of whom work—id., at 52 (Table 10-9)). This suggests that the number of married women over 55 who would satisfy the dependency test is something like 88.5%—the 77% who do not work, plus half of the remaining 23% who do. This nine-tenths correlation appears sufficiently high to justify extension of benefits to the other one-tenth for reasons of administrative convenience.
On the side of widower's benefits, the incidence of dependent husbands is certainly low enough to justify any administrative expense incurred in screening out those who are not dependent. In 1970, only 2.5% of working wives contributed more than the 75% of the family income which renders the husband dependent. F. Linden, Women: A Demographic, Social and Economic Presentation 34 (1973). Since only 43% of all wives work, the incidence of dependent husbands among all married couples is approximately 1% (.025X.43=.0108).