Bastardo v. Warren

• Decision Date: 07 October 1971
• Docket Number: No. 69-C-143.,69-C-143.
• Citation: 332 F. Supp. 501
• Parties: Arthur BASTARDO et al., Plaintiffs, v. Robert WARREN et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

332 F. Supp. 501

Arthur BASTARDO et al., Plaintiffs, v. Robert WARREN et al., Defendants.

No. 69-C-143.

United States District Court, W. D. Wisconsin.

October 7, 1971.

David Loeffler, Milwaukee, Wis., Frederick Sherman, Madison, Wis., for plaintiffs.

Gordon Samuelsen, Asst. Atty. Gen., Madison, Wis., for defendants.

JAMES E. DOYLE, District Judge.

Plaintiffs, adult male laborers, contend that the equal protection clause of the Fourteenth Amendment to the United States Constitution is violated by Section 104.02, Wisconsin Statutes, which provides:

"Every wage paid or agreed to be paid by an employer to any woman or minor employe, except as otherwise provided in section 104.07, shall be no less than a living-wage."

Briefs have been submitted on these questions:

(1) whether the challenged statute is entitled to a presumption of constitutionality, with an accompanying burden upon the plaintiffs to demonstrate that the legislative judgment has been arbitrary and unreasonable, or is not entitled to the presumption of validity, with an accompanying burden upon the defendants to show a compelling state interest which supports the legislative judgment; and

(2) whether an evidentiary hearing will be required to permit the court to decide question (1).

In previous orders, I have decided that if plaintiffs ultimately prevail in their contention, they will be entitled to a declaratory judgment, but not to the injunctive relief prayed for in their complaint.

It is the contention of the plaintiffs that a "strict" or "active" standard of review is appropriate, whereby the burden is on the state to demonstrate a compelling justification for the statute in question.

Plaintiffs contend, in part, that the right to a minimum wage is a "fundamental interest"; that if the state elects to extend such benefits and protections, it must do so even-handedly; and that any denials of such interest to particular classes of persons must withstand strict scrutiny by the court. Cf. Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1970, 26 L.Ed.2d 523 (1970) (voting); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (voting); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (voting); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (voting); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) (familial relations); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (marriage); Harper v. Virginia State Board of Elections, 383 U.S. 663, 667, 88 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (voting); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L. Ed.2d 510 (1965) (privacy of marital relation); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (religious freedom); Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960) (freedom of association); N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 463-466, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (freedom of association); Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (education); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (race); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (procreation).

The Supreme Court of the United States has recently laid to rest this contention. The Court stated in Dandridge v. Williams, 397 U.S. 471, 485-486, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970):

"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' * * * `A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.'

* * *

"To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the drastically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. * * * It is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the states their views of wise economic or social policy." (citations omitted).

I conclude without the necessity for an evidentiary hearing, that public welfare assistance programs and minimum wage regulations are comparable, for this purpose, and that the right to a minimum wage is not so "fundamental" as to require application of the "strict" standard.

Plaintiffs also contend, however, that a classification based upon sex is "suspect" because of its history of misuse against a class as a whole without regard to characteristics of individual members of the class. The contention is similar to that which the Supreme Court has accepted where classifications are made on the basis of race. See e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L.Ed.2d 222 (1964). If both racial and sexual classifications are "suspect", then in both situations, plaintiffs contend, the state must show a compelling state interest to justify the existence and enforcement of the classification.

There is judicial precedent supporting the constitutionality of sexual classification for certain purposes, particularly "benign" purposes.¹ The question is whether these precedents are immune to re-examination, and whether plaintiffs are to be denied an opportunity to demonstrate that times and social attitudes have changed radically and that a philosophy and a set of assumptions which evoked earlier judicial approval of sexual classifications are no longer constitutionally valid.

I believe these judicial precedents are not immune to re-examination.

The question therefore becomes: should every legislative and administrative classification on the basis of sex suffer the same initial suspicion in constitutional terms suffered by every classification on the basis of race?

If so, the court should turn first to the state to justify the classification embodied in the particular statute or regulation under attack. This means that the burden of going forward with the proof rests upon the state. It means that the burden of persuasion rests upon the state. And it means that persuasion requires a showing of a compelling state interest in making and giving...