# Massachusetts Board of Retirement v. Murgia/Dissent Marshall

* Court Documents
* Case Syllabus
* Per Curiam Opinion of the Court
* Dissenting Opinion Marshall
Mr. Justice Marshall, dissenting.
Today the Court holds that it is permissible for the Commonwealth of Massachusetts to declare that members of its state police force who have been proved medically fit for service are nonetheless legislatively unfit to be policemen and must be terminated--involuntarily "retired"--because they have reached the age of 50. Although we have called the right to work "of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure," Truax v. Raich, 239 U.S. 33, 41 (1915), the Court finds that the right to work is not a fundamental right. And, while agreeing that "the treatment of the aged in this Nation has not been wholly free of discrimination," ante, at 313, the Court holds that the elderly are not a suspect class. Accordingly, the Court undertakes the scrutiny mandated by the bottom tier of its two-tier equal protection framework, finds the challenged legislation not to be "wholly unrelated" to its objective, and holds, therefore, that it survives equal protection attack. I respectfully dissent.

#### I

Although there are signs that its grasp on the law is weakening, the rigid two-tier model still holds sway as the Court's articulated description of the equal protection test. Again, I must object to its perpetuation. The model's two fixed modes of analysis, strict scrutiny and mere rationality, simply do not describe the inquiry the Court has undertaken--or should undertake--in equal protection cases. Rather, the inquiry has been much more sophisticated and the Court should admit as much. It has focused upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the state interests asserted in support of the classification. Marshall v. United States, 414 U.S. 417, 432-433 (1974) (Marshall, J., dissenting); San Antonio School District v. Rodriguez, 411 U.S. 1, 98 -110 (1973) (Marshall, J., dissenting); Richardson v. Belcher, 404 U.S. 78, 90 -91 (1971) (Marshall, J., dissenting); Dandridge v. Williams, 397 U.S. 471, 519 -530 (1970) (Marshall, J., dissenting). See also City of Charlotte v. Firefighters, 426 U.S. 283, 286 (1976); Memorial Hospital v. Maricopa County, 415 U.S. 250, 253-254 (1974); Dunn v. Blumstein, 405 U.S. 330, 335 (1972); Kramer v. Union School Dist., 395 U.S. 621, 626 (1969); Williams v. Rhodes, 393 U.S. 23, 30 (1968).
Although the Court outwardly adheres to the two-tier model, it has apparently lost interest in recognizing further "fundamental" rights and "suspect" classes. See San Antonio School District v. Rodriguez, supra (rejecting education as a fundamental right); Frontiero v. Richardson, 411 U.S. 677 (1973) (declining to treat women as a suspect class). In my view, this result is the natural consequence of the limitations of the Court's traditional equal protection analysis. If a statute invades a "fundamental" right or discriminates against a "suspect" class, it is subject to strict scrutiny. If a statute is subject to strict scrutiny, the statute always, or nearly always, see Korematsu v. United States, 323 U.S. 214 (1944), is struck down. Quite obviously, the only critical decision is whether strict scrutiny should be invoked at all. It should be no surprise, then, that the Court is hesitant to expand the number of categories of rights and classes subject to strict scrutiny, when each expansion involves the invalidation of virtually every classification bearing upon a newly covered category.
But however understandable the Court's hesitancy to invoke strict scrutiny, all remaining legislation should not drop into the bottom tier, and be measured by the mere rationality test. For that test, too, when applied as articulated, leaves little doubt about the outcome; the challenged legislation is always upheld. See New Orleans v. Dukes, ante, p. 297 (overruling Morey v. Doud, 354 U.S. 457 (1957), the only modern case in which this Court has struck down an economic classification as irrational). It cannot be gainsaid that there remain rights, not now classified as "fundamental," that remain vital to the flourishing of a free society, and classes, not now classified as "suspect," that are unfairly burdened by invidious discrimination unrelated to the individual worth of their members. Whatever we call these rights and classes, we simply cannot forgo all judicial protection against discriminatory legislation bearing upon them, but for the rare instances when the legislative choice can be termed "wholly irrelevant" to the legislative goal. McGowan v. Maryland, 366 U.S. 420, 425 (1961).
While the Court's traditional articulation of the rational-basis test does suggest just such an abdication, happily the Court's deeds have not matched its words. Time and again, met with cases touching upon the prized rights and burdened classes of our society, the Court has acted only after a reasonably probing look at the legislative goals and means, and at the significance of the personal rights and interests invaded. Stanton v. Stanton, 421 U.S. 7 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973); Frontiero v. Richardson, 411 U.S., at 691 (Powell, J., concurring in judgment); James v. Strange, 407 U.S. 128 (1972); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); Reed v. Reed, 404 U.S. 71 (1971). See San Antonio School District v. Rodriguez, supra, at 98-110 (Marshall, J., dissenting). These cases make clear that the Court has rejected, albeit sub silentio, its most deferential statements of the rationality standard in assessing the validity under the Equal Protection Clause of much noneconomic legislation.
But there are problems with deciding cases based on factors not encompassed by the applicable standards. First, the approach is rudderless, affording no notice to interested parties of the standards governing particular cases and giving no firm guidance to judges who, as a consequence, must assess the constitutionality of legislation before them on an ad hoc basis. Second, and not unrelatedly, the approach is unpredictable and requires holding this Court to standards it has never publicly adopted. Thus, the approach presents the danger that, as I suggest has happened here, relevant factors will be misapplied or ignored. All interests not "fundamental" and all classes not "suspect" are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.

#### II

The danger of the Court's verbal adherence to the rigid two-tier test, despite its effective repudiation of that test in the cases, is demonstrated by its efforts here. There is simply no reason why a statute that tells able-bodied police officers, ready and willing to work, that they no longer have the right to earn a living in their chosen profession merely because they are 50 years old should be judged by the same minimal standards of rationality that we use to test economic legislation that discriminates against business interests. See New Orleans v. Dukes, supra; Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Yet, the Court today not only invokes the minimal level of scrutiny, it wrongly adheres to it. Analysis of the three factors I have identified above--the importance of the governmental benefits denied, the character of the class, and the asserted state interests--demonstrates the Court's error.
Whether "fundamental" or not, "'the right of the individual...to engage in any of the common occupations of life'" has been repeatedly recognized by this Court as falling within the concept of liberty guaranteed by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 572 (1972), quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923). As long ago as Butchers' Union Co. v. Crescent City Co., 111 U.S. 746 (1884), Mr. Justice Bradley wrote that this right "is an inalienable right; it was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence.... This right is a large ingredient in the civil liberty of the citizen." Id., at 762 (concurring opinion). And in Smith v. Texas, 233 U.S. 630 (1914), in invalidating a law that criminally penalized anyone who served as a freight train conductor without having previously served as a brakeman, and that thereby excluded numerous equally qualified employees from that position, the Court recognized that "all men are entitled to the equal protection of the law in their right to work for the support of themselves and families." Id., at 641.
"In so far as a man is deprived of the right to labor his liberty is restricted, his capacity to earn wages and acquire property is lessened, and he is denied the protection which the law affords those who are permitted to work. Liberty means more than freedom from servitude, and the constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling." Id., at 636.
See also Arnett v. Kennedy, 416 U.S. 134 (1974); Perry v. Sindermann, 408 U.S. 593 (1972); Bell v. Burson, 402 U.S. 535 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 605-606 (1967); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239 (1957); Slochower v. Board of Higher Education, 350 U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952); Truax v. Raich, 239 U.S., at 41. Even if the right to earn a living does not include the right to work for the government, it is settled that because of the importance of the interest involved, we have always carefully looked at the reasons asserted for depriving a government employee of his job.
While depriving any government employee of his job is a significant deprivation, it is particularly burdensome when the person deprived is an older citizen. Once terminated, the elderly cannot readily find alternative employment. The lack of work is not only economically damaging, but emotionally and physically draining. Deprived of his status in the community and of the opportunity for meaningful activity, fearful of becoming dependent on others for his support, and lonely in his new-found isolation, the involuntarily retired person is susceptible to physical and emotional ailments as a direct consequence of his enforced idleness. Ample clinical evidence supports the conclusion that mandatory retirement poses a direct threat to the health and life expectancy of the retired person, and these consequences of termination for age are not disputed by appellants. 324*324 Thus, an older person deprived of his job by the government loses not only his right to earn a living, but, too often, his health as well, in sad contradiction of Browning's promise: "The best is yet to be,/The last of life, for which the first was made."
Not only are the elderly denied important benefits when they are terminated on the basis of age, but the classification of older workers is itself one that merits judicial attention. Whether older workers constitute a "suspect" class or not, it cannot be disputed that they constitute a class subject to repeated and arbitrary discrimination in employment. See United States Department of Labor, The Older American Worker: Age Discrimination in Employment (1965); M. Barron, The Aging American 55-68 (1961). As Congress found in passing the Age Discrimination in Employment Act of 1967:
"[I]n the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs[.]
"[T]he setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons[.]
"[T]he incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave[.]" 81 Stat. 602, 29 U.S.C. § 621 (a) (subsection numbers omitted).
See also ante, at 317 n. 11.
Of course, the Court is quite right in suggesting that distinctions exist between the elderly and traditional suspect classes such as Negroes, and between the elderly and "quasi-suspect" classes such as women or illegitimates. The elderly are protected not only by certain anti-discrimination legislation, but by legislation that provides them with positive benefits not enjoyed by the public at large. Moreover, the elderly are not isolated in society, and discrimination against them is not pervasive but is centered primarily in employment. The advantage of a flexible equal protection standard, however, is that it can readily accommodate such variables. The elderly are undoubtedly discriminated against, and when legislation denies them an important benefit--employment--I conclude that to sustain the legislation appellants must show a reasonably substantial interest and a scheme reasonably closely tailored to achieving that interest. Cf. San Antonio School District v. Rodriguez, 411 U.S., at 124-126 (Marshall, J., dissenting). This inquiry, ultimately, is not markedly different from that undertaken by the Court in Reed v. Reed, 404 U.S. 71 (1971).
Turning, then, to appellants' arguments, I agree that the purpose of the mandatory retirement law is legitimate, and indeed compelling. The Commonwealth has every reason to assure that its state police officers are of sufficient physical strength and health to perform their jobs. In my view, however, the means chosen, the forced retirement of officers at age 50, is so overinclusive that it must fall.
All potential officers must pass a rigorous physical examination. Until age 40, this same examination must be passed every two years--when the officer re-enlists--and, after age 40, every year. Appellants have conceded that "[w]hen a member passes his re-enlistment or annual physical, he is found to be qualified to perform all of the duties of the Uniformed Branch of the Massachusetts State Police." App. 43. See id., at 52. If a member fails the examination, he is immediately terminated or refused re-enlistment. Thus, the only members of the state police still on the force at age 50 are those who have been determined—repeatedly—by the Commonwealth to be physically fit for the job. Yet, all of these physically fit officers are automatically terminated at age 50. Appellants do not seriously assert that their testing is no longer effective at age 50, nor do they claim that continued testing would serve no purpose because officers over 50 are no longer physically able to perform their jobs. Thus the Commonwealth is in the position of already individually testing its police officers for physical fitness, conceding that such testing is adequate to determine the physical ability of an officer to continue on the job, and conceding that that ability may continue after age 50. In these circumstances, I see no reason at all for automatically terminating those officers who reach the age of 50; indeed, that action seems the height of irrationality.
Accordingly, I conclude that the Commonwealth's mandatory retirement law cannot stand when measured against the significant deprivation the Commonwealth's action works upon the terminated employees. I would affirm the judgment of the District Court.

#### Notes

* ↑ . Some classifications are so invidious that they should be struck down automatically absent the most compelling state interest, and by suggesting the limitations of strict-scrutiny analysis I do not mean to imply otherwise. The analysis should be accomplished, however, not by stratified notions of "suspect" classes and "fundamental" rights, but by individualized assessments of the particular classes and rights involved in each case. Of course, the traditional suspect classes and fundamental rights would still rank at the top of the list of protected categories, so that in cases involving those categories analysis would be functionally equivalent to strict scrutiny. Thus, the advantages of the approach I favor do not appear in such cases, but rather emerge in those dealing with traditionally less protected classes and rights. See infra, at 321-327.
* ↑ . See also Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972).
* ↑ . See Board of Regents v. Roth, 408 U.S. 564, 587 (1972) (Marshall, J., dissenting). Appellee makes no such claim; nor does he allege that procedural due process requires that he be afforded a hearing prior to termination.
* ↑ . See American Medical Association, Committee on Aging, Retirement, A Medical Philosophy and Approach; M. Barron, The Aging American 76-86, and sources cited (1961). Because, as one former AMA president bluntly put it, "[d]eath comes at retirement," quoted in M. Barron, id., at 76, the AMA has formally taken a position against involuntary retirement and has submitted an amicus brief in this case to inform us of the medical consequences of the practice.
* ↑ . R. Browning, Rabbi Ben Ezra, stanza 1.
* ↑ . There may be an age at which passing a physical examination provides no substantial guarantee that the officer is fit for service for the coming year. In that case, the test has lost its predictive ability. There is no showing that age 50 marks such a line--although appellants ask us to hypothesize that it does--and indeed the evidence seems contrary to that supposition. First, among officers aged 40-49, who undergo yearly examinations, there is no general trend of increasing rejections with age nor any suggestion that those who passed the examination served in less than a satisfactory manner. 376 F. Supp. 753, 756 (Mass. 1974).
* ↑ . Indeed, the appellants have conceded that "[a]ny individual member of the Uniformed Branch...whose age is fifty years or more may be capable of performing the physical activity required of the Uniformed Branch...depending upon his individual physical condition." App. 44. See id., at 52.
* ↑ . The Court's conclusion today does not imply that all mandatory retirement laws are constitutionally valid. Here the primary state interest is in maintaining a physically fit police force, not a mentally alert or manually dexterous work force. That the Court concludes it is rational to legislate on the assumption that physical strength and well-being decrease significantly with age does not imply that it will reach the same conclusion with respect to legislation based on assumptions about mental or manual ability. Accordingly, a mandatory retirement law for all government employees would stand in a posture different from the law before us today.