Decision Date31 March 1988
Docket NumberCiv. A. No. 87-1752.
Citation682 F. Supp. 599
CourtU.S. District Court — District of Columbia

Joan Klein Roth and Edward M. Kimmel, Washington, D.C., for plaintiff.

Asst. U.S. Atty. John M. Facciola, Washington, D.C., for defendants.


JOYCE HENS GREEN, District Judge.

Plaintiff, a national non-profit women's agricultural trade association, brings this action against defendants under the fifth amendment and the Administrative Procedure Act ("APA"), challenging a regulation promulgated by the Secretary of the Department of Agriculture that treats a husband and wife as one "person" for purposes of a $50,000 limitation on agricultural crop subsidy payments. The matter now comes before the Court on the parties' cross-motions for summary judgment and on defendants' motion to dismiss for mootness. For the reasons set forth below, defendants' motion to dismiss and motion for summary judgment are denied, and plaintiff's motion for summary judgment is granted.


Under 7 U.S.C. § 1308, annual payments for the years 1986 through 1990 that "a person shall be entitled to recover" under certain agricultural crop subsidy programs administered by the Agricultural Stabilization and Conservation Service are limited to $50,000. In 1970, acting in his discretion to define the term "person" and to prescribe "such rules as the Secretary determines necessary to assure a fair and reasonable application of the limitation established under the section," 7 U.S.C. § 1308(5)(A), the Secretary of Agriculture promulgated federal regulations implementing Section 1308. 35 Fed.Reg. 19339 (Dec. 20, 1970). The Secretary set out three primary substantive criteria for an "individual, joint stock company, corporation, association, trust, estate, or other legal entity" to be considered a "person." Specifically, the individual or other legal entity must:

(a) Have a separate and distinct interest in the land or the crop involved,
(b) Exercise separate responsibility for such interest, and
(c) Be responsible for the cost of farming related to such interest from a fund or account separate from that of any other individual or entity.

7 C.F.R. § 795.3. Partnerships and joint operations may also be considered separate persons if

the individual or other legal entity is actively engaged in the farming operations of the partnership or other joint operation. An individual or other legal entity shall be considered as actively engaged in the farming operation only if its contribution to the joint operation is commensurate with its share in the proceeds derived from farming by such joint operation. Members of the partnership or joint venture must furnish satisfactory evidence that their contributions of land, labor, management, equipment, or capital to the joint operation are commensurate with their claimed shares of the proceeds.

7 C.F.R. § 795.7.

One category of individuals, however, was automatically barred from qualifying for separate payments regardless of whether they satisfied these interest, contribution, responsibility, and active engagement criteria: married couples. 7 C.F.R. Section 795.11 provides: "A husband and wife shall be considered as one person." It is this regulation that plaintiff challenges here.

A. Fifth Amendment

Plaintiff challenges Section 795.11 under the fifth amendment both as an infringement on the fundamental right to marry and as impermissible discrimination on the basis of gender.1

The appropriate level of scrutiny to be applied to a challenged regulation is determined by the nature of the right or classification involved. Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 1079, 39 L.Ed.2d 306 (1974). When the regulation "impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class," then strict scrutiny is to be applied. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). Under the strict scrutiny standard, a statutory classification cannot be upheld "unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 682, 54 L.Ed.2d 618 (1978).

The right to marry is fundamental. Zablocki, 434 U.S. at 383, 98 S.Ct. at 679; Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967). The threshold issue here is whether Section 795.11 "directly and substantially interferes" with the right. Zablocki, 434 U.S. at 387, 98 S.Ct. at 681. Only then is strict scrutiny appropriate.

In drawing the line between cases where state regulation "directly and substantially interferes" with the right to marry and those where it does not, the courts have distinguished between state action that attempts to affect an individual's decision to enter into a marital relationship and legislation or regulations that merely set up classifications for state benefits based on marital status. See Zablocki, 434 U.S. at 386, 98 S.Ct. at 681 (citing Califano v. Jobst, 434 U.S. 47, 55 n. 12, 98 S.Ct. 95, 100 n. 12, 54 L.Ed.2d 228 (1977)); id. 434 U.S. at 403-04, 98 S.Ct. at 690 (Stevens, J., concurring in judgment). Heightened scrutiny is mandated where the government has directed that a person "may only marry if," for example, she obtains the state's permission, Zablocki, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618,2Israel v. Immigration and Naturalization Service, 785 F.2d 738 (9th Cir.1986),3 is able to pay a filing fee, see Zablocki, 434 U.S. at 387, 98 S.Ct. at 681; see also Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971),4 or is of a certain race. Loving, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (miscegenation).5 Where, however, the government has classified state benefits, such as employment6 and welfare benefits,7 or state burdens, such as taxes,8 on the basis of marital status, strict scrutiny is not warranted. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228.9 The distinction is more than semantic; it is based on the principle that the Constitution protects individuals from intentional state action that interferes in the privacy and family interests that make certain marital decisions fundamentally important. Zablocki, 434 U.S. at 387 n. 12, 98 S.Ct. at 681 n. 12; Moran v. Beyer, 734 F.2d 1245, 1246 (7th Cir.1984).10

The husband-wife rule does not prohibit or condition the right to marry on any test created by the government. Instead, it classifies beneficiaries of a federal program based on marital status. It is not, therefore, the type of regulation where the Supreme Court has applied strict scrutiny. The Tenth Circuit reached this same conclusion in a similar challenge to Section 795.11 seven years ago. In Martin v. Bergland, 639 F.2d 647 (10th Cir.1981), the court concluded that "Section 795.11 is not such a direct and substantial burden on appellants' freedom to marry that it should be strictly scrutinized." Id. at 649. Merely because the statute may deter some people from getting married or burden some who do marry, Jobst, 434 U.S. at 54, 98 S.Ct. at 99, or encourages couples to modify their living arrangements, Bowen v. Gilliard, ___ U.S. ___, 107 S.Ct. 3008, 3017 n. 8, 97 L.Ed.2d 485 (1987), Sturgell v. Creasy, 640 F.2d 843, 853 (6th Cir.1981), does not render it a direct and substantial interference with the freedom to marry. While the regulation may well, as plaintiff contends, "deprive women of significant financial agricultural income, and in some instances, the viability of their farming operation, solely on the basis of whether or not they choose to marry," Plaintiff's Motion for Summary Judgment, at 7, this regulatory interference is not sufficiently direct to invoke strict scrutiny.

Accordingly, strict scrutiny will not be applied here. It remains to be determined whether the statute survives the rational basis test. "Under traditional equal protection analysis, a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest." United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973). In applying the rational basis test, a court may not substitute its own "personal notions" of good public policy for those of Congress; merely because a classification is "imperfect" does not render it unconstitutional. Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1082, 67 L.Ed.2d 186 (1981). Nonetheless, the rational basis standard is "not a toothless one." Id. at 234, 101 S.Ct. at 1082 (citing Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976)). For the reasons set forth below, the regulation at issue is found infirm.

The government's interest in the husband-wife regulation promulgated by the Secretary of Agriculture must be viewed in the context of crop subsidy program enacted by Congress in 1970. Agricultural Act of 1970, Pub.L. 91-524, 91st Cong., 1st Sess., 84 Stat. 1358; Moreno, 413 U.S. at 533, 93 S.Ct. at 2825. The congressional intent behind the crop subsidy program is clearly expressed in the legislation itself— to exert governmental control over the supply and price of certain primary crops by strategically reducing the amount of planted acreage. When the subsidy program was enacted, the Chair of the House Agricultural Committee, Representative Poage, explained that the subsidy payments were necessary to encourage participation in the program: "The whole success of the program is based on participation.... The only way that you can get a balance between supply and demand under this bill is...

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