King v. Smith, 949

Decision Date17 June 1968
Docket NumberNo. 949,949
PartiesReuben K. KING, Commissioner of the State Dept. of Pensions and Security, State of Alabama, et al., Appellants, v. Sylvester SMITH et al
CourtU.S. Supreme Court

[Syllabus from pages 309-310 intentionally omitted] Mary Lee Stapp, Asst. Atty. Gen. of Alabama, Montgomery, Ala., for appellants.

Martin Garbus, New York City, for appellees.

Mr. Chief Justice WARREN delivered the opinion of the Court.

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 1935.1 49 Stat. 620, as amended, 42 U.S.C. §§ 301 1394. This appeal presents the question whether a regulation of the Alabama Department of Pensions and Security, employed in that Department's administration of the State's federally funded AFDC program, is consistent with Subchapter IV of the Social Security Act, 42 U.S.C. §§ 601—609, and with the Equal Protection Clause of the Fourteenth Amendment. At issue is the validity of Alabama's so-called 'substitute father' regulation which denies AFDC payments to the children of a mother who 'cohabits' in or outside her home with any single or married able-bodied man. Appellees brought this class action against appellants, officers, and members of the Alabama Board of Pensions and Security, in the United States District Court for the Middle District of Alabama, under 42 U.S.C. § 1983,2 seeking declaratory and injunctive relief. A properly convened three-judge Dis- trict Court3 correctly adjudicated the merits of the controversy without requiring appellees to exhaust state administrative remedies,4 and found the regulation to be inconsistent with the Social Security Act and the Equal Protection Clause. 5 We noted probable jurisdiction, 390 U.S. 903, 88 S.Ct. 821, 19 L.Ed.2d 869 (1968), and, for reasons which will appear, we affirm without reaching the constitutional issue.


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-qualified6 'needy child * * * who has been deprived of parental support or care by reason of the death, continued absence from the home or physical or mental incapacity of a parent, and who is living with' any one of several listed relatives. Under this provision, and, insofar as relevant here, aid can be granted only if 'a parent' of the needy child is continually absent from the home.7 Alabama considers a man who qualifies as a 'substitute father' under its regulation to be a nonabsent parent within the federal statute. The State therefore denies aid to an otherwise eligible needy child on the basis that his substitute parent is not absent from the home.

Under the Alabama regulation, an 'able-bodied man, married or single, is considered a substitute father of all the children of the applicant * * * mother' in three different situations: (1) if 'he lives in the home with the child's natural or adoptive mother for the purpose of cohabitation'; or (2) if 'he visits (the home) frequently for the purpose of cohabiting with the child's natural or adoptive mother'; or (3) if 'he does not frequent the home but cohabits with the child's natural or adoptive mother elsewhere.'8 Whether the substitute father is actually the father of the children is irrelevant. It is also irrelevant whether he is legally obligated to support the children, and whether he does in fact contribute to their support. What is determinative is simply whether he 'cohabits' with the mother.9

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.

Between June 1964, when Alabama's substitute father regulation became effective, and January 1967, the total number of AFDC recipients in the State declined by about 20,000 persons, and the number of children recipients by about 16,000 or 22%. As applied in this case, the regulation has caused the termination of all AFDC payments to the appellees, Mrs. Sylvester Smith and her four minor children.

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 children.10 Further, he is not willing or able to support the Smith children, and does not in fact support them. His wife is required to work to help support the Williams household.


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 (1935), 42 U.S.C. §§ 601, 602, 603, and 604. See Advisory Commission Report, supra, at 21—23.11 The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U.S.C. § 602 (1964 ed., Supp. II). See also HEW, Handbook of Public Assistance Administration, pt. IV, §§ 2200, 2300 (hereafter cited as Handbook).12

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 s 406(a) of the Social Security Act. 42 U.S.C. § 606(a) (1964 ed., Supp. II). The State submits that the regulation is a legitimate way of allocating its limited resources available for AFDC assistance, in that it reduces the caseload of its social workers and provides increased benefits to those still eligible for assistance. Two state interests are asserted in support of the allocation of AFDC assistance achieved by the regulation: first, it discourages illicit sexual relationships and illegitimate births; second, it puts families in which there is an informal 'marital' relationship on a part with those in which there is an ordinary marital relationship, because families of the latter sort are not eligible for AFDC assistance.13

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 14 and to determine the level of benefits by the amount of funds it devotes to the program.15 See Advisory Commission Report, supra, at 30—59. Further, there is no question that regular and actual contributions to a needy child, including contributions from the kind of person Alabama calls a substitute father, can be taken into account in determining whether the child is needy. 16 In other words, if by reason of...

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