Congressmen Sandlin and Frank have cosponsored each other s bills. Frustrated by the slowness of the legislative process, they believe it would be more productive to turn from the Congress to the courts for relief from these provisions. Our legal advisors believe that chances for legal rulings against these provisions are slight at best. The problem comes in the level of scrutiny the court applies to statutory clauses of classification. The strictest form of scrutiny is applied if the statute classifies individuals on the basis of race or national origin.
Intermediate scrutiny is applied to gender classification or discrimination.
Statutes making classifications based on all other classifications including economic factors receive the lowest form of scrutiny. Virtually any justification advanced will meet this concern. It was a gender-based discrimination challenge to the spousal benefit provision of the Social Security Act which prompted Congress to enact the GPO in 1977. Prior to a Supreme Court decision earlier that year in Califano v. Goldfarb, only women were automatically entitled to spousal benefits. Thousands of male government retirees, not covered by Social Security on their own, became eligible for a spousal benefit based on their wives Social Security earnings resulting in considerable new costs for Social Security.