Weinberger v. Wiesenfeld 8212 1892

Decision Date19 March 1975
Docket NumberNo. 73,73
PartiesCaspar W. WEINBERGER, Secretary of Health, Education, and Welfare, Appellant, v. Stephen Charles WIESENFELD, etc. —1892
CourtU.S. Supreme Court

The gender-based distinction mandated by the provisions of the Social Security Act, 42 U.S.C. § 402(g), that grant survivors' benefits based on the earnings of a deceased husband and father covered by the Act both to his widow and to the couple's minor children in her care, but that grant benefits based on the earnings of a covered deceased wife and mother only to the minor children and not to the widower, violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment, since it unjustifiably discriminates against female wage earners required to pay social security taxes by affording them less protection for their survivors than is provided for male wage earners. Pp. 642-653.

(a) The distinction is based on an 'archaic and overbroad' generalization not tolerated under the Constitution, namely, that male workers' earnings are vital to their families' support, while female workers' earnings do not significantly contribute to families' support. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 95 L.Ed. 884. Pp. 642-643.

(b) That social security benefits are 'noncontractual' and do not compensate for work performed or necessarily correlate with contributions to the program, cannot sanction the solely gender-based differential protection for covered employees. Since the benefits depend significantly upon a covered employee's participation in the work force, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications that do not differentiate among covered employees solely on the basis of sex. Pp. 646-647.

(c) Since, as is apparent from the statutory scheme itself and from § 402(g)'s legislative history, § 402(g)'s purpose in providing benefits to young widows with children was not, as the Government contends, to provide an income to women who, because of economic discrimination, were unable to provide for themselves, but to permit women to elect not to work and to devote themselves to case of children (and thus was not premised upon any special disadvantage of women), it cannot serve to justify a gender-based distinction diminishing the protection afforded women who do work. Pp. 648-652.

367 F.Supp. 981, affirmed.

Keith A. Jones, Washington, D.C., for appellant.

Ruth Bader Ginsburg, New York City, for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

Social Security Act benefits based on the earnings of a deceased husband and father covered by the Act are payable, with some limitations, both to the widow and to the couple's minor children in her care. § 202(g) of the Social Security Act, as amended, 42 U.S.C. § 402(g).1 Such benefits are payable on the basis of the earnings of a deceased wife and mother covered by the Act, however, only to the minor children and not to the widower. The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.2

A three-judge District Court for the District of New Jersey held that the different treatment of men and women mandated by § 402(g) unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male em- ployees. 367 F.Supp. 981, 991 (1973). The noted probable jurisdiction, 419 U.S. 822, 95 S.Ct. 38, 42 L.Ed.2d 45 (1974). We affirm.


Appellee Stephen C. Wiesenfeld and Paula Polatschek were married on November 15, 1970. Paula, who worked as a teacher for five years before her marriage, continued teaching after her marriage. Each year she worked, maximum social security contributions were deducted from her salary.3 Paula's earnings were the couple's principal source of support during the marriage, being substantially larger than those of appellee.4

On June 5, 1972, Paula died in childbirth. Appellee was left with the sole responsibility for the care of their infant son, Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld applied at the Social Security office in New Brunswick, N.J., for social security survivors' benefits for himself and his son. He did obtain benefits for his son under 42 U.S.C. § 402(d) (1970 ed. and Supp. III),5 and received for Jason $206.90 per month until September 1972, and $248.30 per month thereafter. However, appellee was told that he was not eligible for benefits for himself, because § 402(g) benefits were available only to women.6 If he had been a woman, he would have received the same amount as his son as long as he was not working, see 42 U.S.C. §§ 402(d)(2) and (g)(2), and, if working, that amount reduced by $1 for every $2 earned annually above $2,400. 42 U.S.C. §§ 403(b) and (f).7

Appellee filed this suit in February 1973,8 claiming jurisdiction under 28 U.S.C. § 1331, on behalf of himself and of all widowers similarly situated. 9 He sought a declaration that § 402(g) is unconstitutional to the extent that men and women are treated differently, an in- junction restraining appellant from denying benefits under § 402(g) solely on the basis of sex, and payment of past benefits commencing with June 1972, the month of the original application. Cross motions for summary judgment were filed. After the three-judge court determined that it had jurisdiction,10 it granted summary judgment in favor of appellee, and issued an order giving appellee the relief he sought.


The gender-based distinction made by § 402(g) is indistinguishable from that invalidated in Frontiero v Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 60 (1975), explained: 'In . . . Frontiero the challenged (classification) based on sex (was) premised on overbroad generalizations that could not be tolerated under the Constitution. . . . (T)he assumption . . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not.' Id., at 507, 95 S.Ct. at 577. A virtually identical 'archaic and overbroad' generalization, id., at 508, 95 S.Ct. at 577, 'not . . . tolerated under the Constitution' underlies the distinction drawn by § 402(g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support.11

Section 402(g) was added to the Social Security Act in 1939 as one of a large number of amendments designed to 'afford more adequate protection to the family as a unit.' H.R.Rep.No.728, 76th Cong., 1st Sess., 7 (1939). Monthly benefits were provided to wives, children, widows, orphans, and surviving dependent parents of covered workers. Ibid. However, children of covered female workers were eligible for survivors' benefits only in limited circumstances, see n. 5, supra, and no benefits whatever were made available to husbands or widowers on the basis of their wives' covered employment.12

Underlying the 1939 scheme was the principle that '(u)nder a social-insurance plan the primary purpose is to pay benefits in accordance with the probable needs of the beneficiaries rather than to make payments to the estate of a deceased person regardless of whether or not he leaves dependents.' H.R.Rep.No.728, supra, at 7. (Emphasis supplied.) It was felt that '(t)he payment of these survivorship benefits and supplements for the wife of an annuitant are . . . in keeping with the principle of social insurance . . ..' Ibid. Thus, the framers of the Act legislated on the 'then generally accepted presumption that a man is responsible for the support of his wife and children.' D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973).13

Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. See Kahn v. Shevin, 416 U.S. 351, 354 n. 7, 94 S.Ct. 1734, 1737, 40 L.Ed.2d 189 (1974). But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.

Section 402(g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. First, it was open to the servicewoman under the statutes invalidated in Frontiero to prove that her husband was in fact dependent upon her. Here, Stephen Wiesenfeld was not given the opportunity to show, as may well have been the case, that he was dependent upon his wife for his support, or that, had his wife lived, she would have remained at work while he took over care of the child. Second, in this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us...

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