440 U.S. 268 (1979), 77-1119, Orr v. Orr

Docket Nº:No. 77-1119
Citation:440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306
Party Name:Orr v. Orr
Case Date:March 05, 1979
Court:United States Supreme Court

Page 268

440 U.S. 268 (1979)

99 S.Ct. 1102, 59 L.Ed.2d 306




No. 77-1119

United States Supreme Court

March 5, 1979

Argued November 27, 1978



Following a stipulation between appellant husband and appellee wife, in which appellant agreed to pay appellee alimony, an Alabama court, acting pursuant to state alimony statutes under which husbands, but not wives, may be required to pay alimony upon divorce, ordered appellant to make monthly alimony payments. Some two years thereafter, appellee filed a petition seeking to have appellant adjudged in contempt for failing to maintain the alimony payments. At the hearing on the petition appellant, though not claiming that he was entitled to an alimony award from appellee, made the contention (advanced for the first time in that proceeding) that the Alabama statutes, by virtue of their reliance on a gender-based classification, violated the [99 S.Ct. 1106] Equal Protection Clause of the Fourteenth Amendment. The trial court, ruling adversely to appellant on that issue, entered judgment against him, which was affirmed on appeal.


1. This Court has jurisdiction over appellant's appeal. Pp. 271-278.

(a) Appellant's failure to ask for alimony for himself does not deprive him of standing to attack the constitutionality of the Alabama statutes for underinclusiveness. That attack holds the only promise of relief from the burden deriving from the challenged statutes, and appellant has therefore

alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions.

Baker v. Carr, 369 U.S. 186, 204. Pp. 271-273.

(b) Had the courts below refused to entertain appellant's constitutional contention on the ground that it was not timely made under applicable state procedures, this Court might have lacked jurisdiction to consider the contention; but no timeliness point was raised or considered below and the constitutional issue was decided on the merits. Under these circumstances, it is irrelevant whether the decision below could have been based upon an adequate and independent state ground. Pp. 274-275.

(c) No point was raised or considered below that appellant, by virtue of the stipulation, was obliged to make the alimony payments under state contract law.

Where the state court does not decide

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against [an] appellant upon an independent state ground, but deeming the federal question to be before it, actually . . . decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is . . . final. . . .

Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98. Pp. 275-278.

2. The Alabama statutory scheme of imposing alimony obligations on husbands, but not wives, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 278-283.

(a) "To withstand scrutiny" under the Equal Protection Clause,

"classifications by gender must serve important governmental objectives, and must be substantially related to achievement of those objectives."

Califano v. Webster, 430 U.S. 313, 316-317. Pp. 278-279.

(b) The statutes cannot be validated on the basis of the State's preference for an allocation of family responsibilities under which the wife plays a dependent role.

No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.

Stanton v. Stanton, 421 U.S. 7, 14-15. Pp. 279-280.

(c) Though it could be argued that the Alabama statutory scheme is designed to provide help for needy spouses, using sex as a proxy for need, and to compensate women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce, these considerations would not justify that scheme, because, under the Alabama statutes, individualized hearings at which the parties' relative financial circumstances are considered already occur. Since such hearings can determine which spouses are needy, as well as which wives were, in fact, discriminated against, there is no reason to operate by generalization. "Thus, the gender-based distinction is gratuitous. . . ." Weinberger v. Wiesenfeld, 420 U.S. 636, 653. Pp. 280-282.

(d) Use of a gender classification, moreover, actually produces perverse results in this case, because only a financially secure wife whose husband is in need derives an advantage from the Alabama scheme, as compared to a gender-neutral one. Pp. 282-283.

3. [99 S.Ct. 1107] The question remains open on remand whether appellant's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. Pp. 283-284.

351 So.2d 904, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN,

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J., post, p. 284, and STEVENS, J., post, p. 284, filed concurring opinions. POWELL, J., filed a dissenting opinion, post, p. 285. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 290.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce.1

On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $1,240 per month in alimony. On July 28, 1976, Mrs. Orr

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initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr's petition, Mr. Orr submitted in his defense a motion requesting that Alabama's alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands, but never upon wives. The Circuit Court denied Mr. Orr's motion and entered judgment against him for $5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment. On March 16, 1977, the Court of Civil Appeals of Alabama sustained the constitutionality of the Alabama statutes, 351 So.2d 904. On May 24, the Supreme Court of Alabama granted Mr. Orr's petition for a writ of certiorari, but on November 10, without court opinion, quashed the writ as improvidently granted. 351 So.2d 906. We noted probable jurisdiction, 436 U.S. 924 (1978). We now hold the challenged Alabama statutes unconstitutional, and reverse.


We first address three preliminary questions not raised by the parties or the Alabama courts below, but which nevertheless may be jurisdictional, and therefore are considered of our own motion.

The first concerns the standing of Mr. Orr to assert in his defense the unconstitutionality of the Alabama statutes. It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay.2 It is [99 S.Ct. 1108] therefore possible that his

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success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands, as well as wives. In that event, Mr. Orr would remain obligated to his wife. It is thus argued that the only "proper plaintiff" would be a husband who requested alimony for himself, and not one who merely objected to paying alimony.

This argument quite clearly proves too much. In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e.g., by repealing the statute as a whole). In this case, if held unconstitutional, the Alabama divorce statutes could be validated by, inter alia, amendments which either (1) permit awards to husbands as well as wives or (2) deny alimony to both parties. It is true that, under the first disposition, Mr. Orr might gain nothing from his success in this Court, although the hypothetical "requesting" plaintiff would. However, if, instead, the State takes the second course and denies alimony to both spouses, it is Mr. Orr, and not the hypothetical plaintiff, who would benefit. Because we have no way of knowing how the State will, in fact, respond, unless we are to hold that underinclusive statutes can never be challenged because any plaintiff's success can theoretically be thwarted, Mr. Orr must be held to have standing here. We have on several occasions considered this inherent problem of challenges to underinclusive statutes, Stanton v. Stanton, 421 U.S. 7, 17 (1975); Craig v. Boren, 429 U.S. 190, 210 n. 24 (1976), and have not denied a plaintiff standing on this ground.

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There is no question but that Mr. Orr bears a burden he would not bear were he female. The issue is highlighted, although not altered, by transposing it to he sphere of race. There is no doubt that a state law imposing alimony obligations on blacks but not whites could be challenged by a black who was required to pay. The burden alone is sufficient to establish standing. Our resolution of a statute's constitutionality often does "not...

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