In re Estate of Miltenberger

• Citation: 753 N.W.2d 219,482 Mich. 901
• Decision Date: 31 July 2008
• Docket Number: COA No. 270716.,Docket No. 133847.
• Parties: In re ESTATE OF James W. MILTENBERGER, Deceased. Susan Eifler, Personal Representative of the Estate of James W. Miltenberger, Deceased, Appellee, and Sharon Miltenberger, Petitioner-Appellee, v. Sandra Swartz, Respondent-Appellant.
• Court: Michigan Supreme Court

753 N.W.2d 219

482 Mich. 901

In re ESTATE OF James W. MILTENBERGER, Deceased.

Susan Eifler, Personal Representative of the Estate of James W. Miltenberger, Deceased, Appellee, and Sharon Miltenberger, Petitioner-Appellee, v. Sandra Swartz, Respondent-Appellant.

Docket No. 133847.

COA No. 270716.

Supreme Court of Michigan.

July 31, 2008.

On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we VACATE our order of December 13, 2007. The application for leave to appeal the March 27, 2007 judgment of the Court of Appeals is DENIED, because we are no longer persuaded that the question presented should be reviewed by this Court.

MARILYN J. KELLY, J., concurs and states as follows:

I concur in Justice Corrigan's statement with one exception. I find her discussion of the feasibility of gender-neutral dower interesting but irrelevant to intermediate-scrutiny analysis. The current dower statutes pass intermediate scrutiny on their own merits, not because a gender-neutral alternative might be impossible.

Justice Corrigan's questions about the feasibility of a future alternative to gender-based dower stem from the following proposition in Orr v. Orr: "Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex."¹ Orr invalidated the Alabama alimony statute that required husbands, but not wives, to pay alimony.² The Court concluded that the statute already provided for individualized hearings to determine need; therefore, there was no reason "to use sex as a proxy for need."³ Orr dealt with a statute that provided for a gender-neutral determination of need. The Court had no reason to consider whether a gender-based statute might pass constitutional muster if a future gender-neutral scheme were not feasible. Therefore, Orr does not require us to address in this case the feasibility of a hypothetical gender-neutral dower statute.

Justice Corrigan acknowledges that the feasibility of gender-neutral dower is best left initially to the Legislature. Moreover, the issue is not now before the Court. The parties neither briefed nor argued the feasibility of a gender-neutral dower statute in Michigan. On the contrary, they proceeded on the assumption that gender-neutral dower was a possible alternative to the existing dower statutes. They disagreed only about whether this Court should read the current statutes in gender-neutral terms.

Justice Corrigan asserts that gender-neutral dower is likely impossible. She reasons that the Legislature cannot affect the vested rights in real property to which a widower's dower right would attach if it passed a gender-neutral dower statute. However, this problem would occur only if this hypothetical statute applied retroactively. There is no reason to speculate about a problem that may not occur.

I agree with Justice Corrigan that the current dower statutes survive intermediate scrutiny. I express no opinion about the feasibility of a hypothetical gender-neutral dower statute, as that issue is not before the Court.

CORRIGAN, J., concurs and states as follows:

I concur, but write separately to respond to the dissent. I conclude that the gender distinction in Michigan's dower scheme is adequately justified by the well-documented relative economic positions of widows and widowers in this state. Therefore, the Court of Appeals correctly concluded that dower survives equal protection review and declined to deprive the Legislature of this historical tool to aid widows, who, as a group, continue to occupy less favorable economic positions than their male counterparts.

I. FACTS AND PROCEEDINGS

The dissent adequately recounts the straightforward facts of this case and the proceedings in the lower courts. I note only that the Attorney General has not participated in this case on behalf of the state of Michigan. It would have been useful to the Court to have had this issue briefed by the Attorney General.⁴ I regret that the trial court did not exercise its discretion under MCR 2.209(D), which permits the court to "require that notice be given to the Attorney General" when "the validity of a Michigan statute ... is in question in an action to which the state or an officer or agency of the state is not a party...."

II. STANDARD OF REVIEW

The dissent and I agree that intermediate scrutiny applies to equal protection review of laws that discriminate on the basis of gender. "To withstand constitutional challenge, ... classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). But, as I discuss further in part III(C) of this statement, this standard is a source of controversy, and the United States Supreme Court has provided insufficient guidance concerning its implementation.

I conclude that, under the intermediate scrutiny standard, dower withstands review because it is substantially related to important objectives: remedying economic discrimination against women and protecting needy spouses. The dissent's point is well-taken, however, that gender is an imperfect proxy for need among surviving spouses. Therefore, dower also appears to reflect gender stereotypes. But finding dower unconstitutional for this reason essentially amounts to review under the strict scrutiny standard reserved for laws discriminating on the basis of race or national origin. I acknowledge the dissent's comparison of my analysis to rational basis review, because I find it necessary to consider real-world data to determine how well-suited dower is to its goals. But because real-world differences between men and women are the foundation of the intermediate scrutiny standard, intermediate scrutiny is unworkable if it requires us to presume that a gender-based distinction is unconstitutional, yet then eschew available statistics comparing the economic and social circumstances of men and women to rebut the presumption, as the dissent urges. Thus, until the United States Supreme Court provides further guidance on implementing intermediate scrutiny, I would not hold unconstitutional our Legislature's choice to retain the ancient right of dower even though it unavoidably reflects gender stereotypes.

III. ANALYSIS

A. IMPORTANT GOVERNMENTAL OBJECTIVES

The dissent and I agree that dower is aimed at important governmental objectives, because it provides support for needy surviving spouses and a remedy for past economic discrimination and lower earnings of women, which contribute to the higher vulnerability of women to poverty or low income after the death of a spouse. See post at 246 (stating that dower protects needy spouses and serves "the related purpose of compensating women for past discrimination and lower earnings during marriage, which often left them more vulnerable than men following the death of a spouse"). "[A]ssisting needy spouses is a legitimate and important governmental objective." Orr v. Orr, 440 U.S. 268, 280, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). "Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women" has also been recognized as "an important governmental objective." Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); see also United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (VMI), citing Webster.⁵ I concur generally in the dissent's analysis of the constitutionally sound objectives of Michigan's dower statutes. My only qualm with the dissent's analysis lies in its assertion that the "statutes at issue here are little more than recitations of the common law; thus, whether dower under these statutes serves a different or broader purpose than dower served at common law is somewhat questionable." Post at 246.

Without question, dower is a longstanding historical right that preexisted even the formation of our nation and that has become embedded in Michigan statutory and common law. The right of dower is "`so ancient, that its origin is now lost in doubt and uncertainty.'" Pfau v. Moseley, 9 Ohio St.2d 13, 20, 222 N.E.2d 639 (1966), quoting Dunseth v. Bank of the United States, 6 Ohio 77 (1833). As one scholar noted:

From very early times, English law assured to a wife certain rights in her husband's property if she survived him. For centuries those rights have been known as dower. Although the word itself is of French origin, the provision in English law long antedates the coming of the Normans, and its precise beginnings are lost in the dim antiquities of the Germanic law which prevailed in England before the Conquest. The origins of dower take us back to a period in Teutonic history when the bridegroom made a payment to the kinsmen of the bride, in return for the rights over her which he acquired by the marriage, and gave to her a morning [sic] gift for her support if she outlived him. [Haskins, The development of common law dower, 62 Harv. L. R. 42, 42 (1948).]

We do know that by at least 1225 the right of dower provided a widow with the right to a 1/3 share of her husband's property. The Magna Carta of 1225 stated: "[L]et there be assigned to [the widow] for her dower a third part of all the land of her husband which was his in his life, unless she was endowed of less at the church door."⁶ Michigan recognized the common law right of dower in May v. Rumney, 1 Mich. 1 (1847). In closing the opinion of the Court, Justice Wing stated: "I can see no reason why courts should not now, as formerly, look upon the claim of dower with great favor, and maintain the truth of what Lord Coke says was commonly said, that three things...