Peters v. Narick, No. 14776

Citation270 S.E.2d 760,165 W.Va. 622
Decision Date02 October 1980
Docket NumberNo. 14776
CourtSupreme Court of West Virginia
PartiesStephen W. PETERS v. Steven D. NARICK, Judge, etc.

Syllabus by the Court

1. W.Va. Code 48-2-28 (1976) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by reason of the fact that it establishes a gender-based classification permitting wives but not husbands to seek separate maintenance.

2. Gender-based classifications challenged as denying the right to equal protection guaranteed by Article III, Section 17 of the West Virginia Constitution are to be regarded as suspect, accorded the strictest possible judicial scrutiny, and are to be sustained only if the State can demonstrate a compelling interest to justify the classification.

3. By establishing a gender-based classification permitting wives but not husbands to seek separate maintenance, W.Va. Code 48-2-28 (1976) violates the guarantee of equal protection found in Article III, Section 17 of the West Virginia Constitution.

4. W.Va. Code 48-2-28 (1976) is to be applied in a gender-neutral fashion, thereby extending the right to seek separate maintenance to both men and women.

Louis J. John, Wheeling, for petitioner.

John C. Purbaugh, Charleston, for respondent.

McGRAW, Justice.

In this proceeding instituted pursuant to the provisions of W.Va. Code 53-1-1 to 12 (1966), Stephen W. Peters petitions this Court to prohibit further proceedings by respondent Steven D. Narick, Judge of the Circuit Court for Marshall County, in an action for separate maintenance instituted by petitioner's spouse Janet L. Peters, the intervenor/respondent pursuant to W.Va. Code 48-2-28 (1976). 1 Petitioner contends this statute operates to deny him equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article III, Section 17 of the West Virginia Constitution. It is his position that because the section permits wives but not husbands to seek separate maintenance it is underinclusive. Therefore, petitioner contends any action taken by the respondent judge pursuant to this statute is in excess of that court's legitimate powers and subject to restraint by way of writ of prohibition.

In a proper case, prohibition lies to test the constitutionality of an act of the Legislature, under Code 53-1-1 which provides that prohibition lies "as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." Syl. pt. 1, Morris v. Sevy, 129 W.Va. 331, 40 S.E.2d 874 (1946); Syl. pt. 1, Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331 (1938).

The language of W.Va. Code 53-1-1 remains the same today as when Syllabus Point 1 of Simms was written. Prohibition is a proper proceeding in which to raise this constitutional challenge to W.Va. Code 48-2-28 (1976).

We begin by noting this statute is not shielded from this equal protection challenge because facially it discriminates against men rather than women. It has been established in other gender-discrimination cases brought by or on behalf of men that statutes such as the one in question discriminate against both men and women. E.g., Wengler v. Druggists Medical Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Therefore, it is unnecessary to inquire whether the statute is intended to benefit or burden women, because the same standard of review applies. Wengler, supra. The reasoning underlying this approach is that any gender-based classification stigmatizes women, even one which is apparently directed against men only. Gender-based classifications can constitute legally sanctioned second class citizenship and must pass constitutional review even if the classification was originally envisioned as a benefit to one gender. 2

I. The Federal Constitutional Question

In the last decade, gender-based legislative classifications have become the subject of an ever-increasing number of legal challenges. 3 The United States Supreme Court has struggled with such challenges in a long line of cases which reached a culmination of sorts with the decision in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). Orr presented the question of the constitutionality of Alabama's alimony statutes which provided that husbands, but not wives, may be required to pay alimony upon divorce. It had been established by the Court's prior holdings on the subject of gender-based legislative classifications that the Alabama statutes created a classification subject to scrutiny under the Equal Protection Clause, 4 and that the classification was not shielded from scrutiny because it facially discriminated against men rather than women. 5 To test the statute's constitutionality the Court applied the test first enunciated in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). 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." 6 429 U.S. at 197, 97 S.Ct. at 457, 50 L.Ed.2d at 407. The Court considered several governmental objectives that might be offered to uphold the validity of the gender-based classification. They concluded the statute could not be sustained if its purpose was to legislatively reinforce a family model in which the wife plays a dependent role. 7 The Court also concluded that while the purpose of providing help for dependent spouses by using gender as a proxy for need was an important and legitimate governmental purpose, there was no valid reason to use gender as a proxy for need because the Alabama statutory scheme provided for individualized hearings at which the parties' relative financial circumstances are considered. 8 Accordingly, men could be helped as well as women with little if any additional burden on the state. Therefore, the Court concluded that while this purpose was legitimate and important, the classification by gender was not substantially related to its achievement.

The Court also considered whether the statute could be sustained if its purpose was viewed as attempting to compensate women for a long history of discrimination and economic disadvantage. Conceding this was a legitimate purpose, 9 the Court concluded the statute actually produced perverse results by giving advantage only to the financially secure wife by relieving her of the burden of paying alimony to a dependent husband. Thus, wives benefiting from the statutory scheme were those who were not dependent on their husbands and, therefore, were the least likely to have been victims of past discrimination. Once again, the Court concluded that while the purpose was legitimate and important, the classification by gender was not substantially related to its achievement. "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." Orr v. Orr, 440 U.S. 268, 283, 99 S.Ct. 1102, 1113, 59 L.Ed.2d 306, 321. Upon this analysis the Court held: "(t)he Alabama statutory scheme of imposing alimony obligations on husbands but not wives violates the Equal Protection Clause of the Fourteenth Amendment."

We conclude this holding controls the disposition of petitioner's federal claim. The West Virginia Separate Maintenance Statute accords the right to seek separate maintenance only to the wife, and in this regard suffers from the same fatal defect as the Alabama alimony statutes, and as did the Alabama statutes, it fails the middle-tier or important governmental objective test. We hold W.Va. Code 48-2-28 (1976) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by reason of the fact that it establishes a gender-based classification permitting wives but not husbands to seek separate maintenance.

II. The State Constitutional Question

Petitioner contends W.Va. Code 48-2-28 (1976) violates his right to equal protection as guaranteed by Article III, Section 17 of the West Virginia Constitution. 10 In its earliest cases on the subject this Court discussed the constitutional guarantee of equal protection found in Article III, Section 17, 11 but did not enunciate the tests to be applied in various circumstances. Then, in the case of Cimino v. The Board of Education of Marion County, W.Va., 210 S.E.2d 485 (1974), the Court considered the then two-tiered federal approach, 12 and applied the rational relationship test. The two-tiered federal approach was expressly adopted by this Court in State ex rel. Piccirillo v. The City of Follansbee, W.Va., 233 S.E.2d 419 (1977). Because we have not addressed the subject subsequent to the expansion of the federal approach to three tiers, we now consider whether, in assessing petitioner's West Virginia constitutional challenge, we will adopt and apply the important governmental test followed in Orr, or strike our own course. 13 Our inquiry will benefit by a brief review of the inauspicious emergence and guarded evolution of the middle-tier approach.

Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) marked one of the earliest attempts to come to grips with gender-based classifications. Reed is cited for the proposition that classifications by gender are subject to scrutiny under the Equal Protection Clause.

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), a majority concurred in a judgment that a United States Code provision containing a gender-based classification was a denial of due process under the Fifth Amendment to the United States Constitution. 14 A...

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