Warren E. Burger: We'll hear arguments next in Califano against Boles.
Harriet S. Shapiro: Mr. Chief Justice --
Warren E. Burger: We'll just – we'll wait for the – we'll wait for this crowd to clear.
Harriet S. Shapiro: I'm sorry.
Warren E. Burger: Mrs. Shapiro, I think you may proceed when you're ready now.
Harriet S. Shapiro: Mr. Chief Justice and may it please the Court. This case is here on direct appeal by the Government from a decision of the District Court for the Western District of Texas. This is another case questioning the constitutionality of the Social Security Act. The particular provision involved here is the marriage requirement for mother's benefits. The wage earner, Norman W. Boles lived with Margaret Gonzales who is the claimant from 1963 to 1966, but they were never married. Their son Norman J. Boles was born in 1964. In 1966, the wage earner left Margaret Gonzales and his child and he married Nancy Boles in 1967. There were two children born in this marriage and the wage earner died in 1971. All three children are receiving children's benefits on Norman W. Boles' account. Mother's benefits are paid to the widow of a wage earner who has an entitled child in her care. For that reason, Nancy Boles is getting mother's benefits and Margaret Gonzales was denied mother's benefits because she was never married to the wage earner, eventhough her son is receiving benefits and is in her care. The District Court read this Court's decision in Weinberger versus Wiesenfeld as holding that mother's benefits are for the child to give him the care of his surviving parent. The court found that Norman J. Boles, the child, had himself been denied mother's benefits because of his illegitimacy. And that that denial was inconsistent with the equal protection component of the Due Process Clause of the Fifth Amendment. It therefore declared Section 202 (g) of the Social Security Act, the mother's benefit provision unconstitutional to the extent that it limited benefits to widows and divorced wives. The court enjoined the Secretary from denying mother's benefits to the named plaintiffs or to the class which consists of all illegitimate children and their mothers who are ineligible for mother's benefits solely because they were never married to the wage earner. All the children in the class like Norman Boles are getting children's benefits. Their only claim is that they have been injured by the failure to pay mother's benefits to their mothers with whom they are living. The true requirements for mother's benefits, they are particularly are important here are first, that they are paid to the widow or to persons that Congress has decided should be treated as if they were widows. That of course is the marriage requirement. Second, the widow must have in her care a child getting benefits because of his relationship to the wage earner, that usually of course would be the widow's child, but it doesn't have to be. It's the child relationship to the wage earner, not to the person that is caring for him that counts. And the child's legitimacy has nothing to do with the widow's entitlement. These two requirements serve analytically different purposes. The first, the marriage requirement defines the class of those who are likely to have been dependent on the wage earner during his life. And that class includes all the people that Congress believed were most likely to have lost support when the wage earner died. But lost of support is not itself enough. The second, child in care requirement defines the group within the larger class who because of special circumstances are entitled to the replacement of lost support. If you don't show membership within this particular subgroup, then Congress felt that eventhough you may have lost support when the wage earner died, you should make up that support through your own efforts. Analytically, the child in care provision is very similar to the age requirement for elderly widows. The theory behind mother's benefits is that a wife with an entitled child in her care should have the same option that she had before her husband's death. That is, either to stay home, supported by her husband to take care of the children, or else to work and help to support the family. The theory is that she shouldn't lose this choice when the wage earner dies, and that's why she gets the benefits. The important point is that the class definition, the marriage requirement sets the outer limits of those Congress found likely to have lost support. It is the group definition is a limitation on the class. It defines the people within the class who are entitled to the replacement of lost support. Ms. Gonzales never married the wage earner. She can't meet any of the other tests that Congress has used to identify people who are so likely to have lost support at the wage earners death that they should be treated as though they were married. There is no indication in the record in fact that these tests were inaccurate as to Ms. Gonzales. There's no suggestion that she was in fact supported by the wage earner that she lost any support when he died. Since she doesn't belong to the class that Congress has identified as likely to have lost support, she's not entitled to benefits. This Court's cases strongly support our analysis of the statute. The Court has frequently accepted the Social Security Acts use of marriage to show the likelihood of support. And it has rejected claims that marriage is to inaccurate or imprecise, an indicator of the likelihood of support to serve as a basis for denying claims. And it has also refused to require that people who cannot meet some particular part of the marriage requirement should be entitled to prove that they were in fact dependent. And there's no reason to reach a different result here. The court below believed Wiesenfeld required the different result. It said that this Court held there that mother's benefits are for the child so that he can receive the care of the surviving parent. But that misreads Wiesenfeld. The court there was focusing on the class definition for mother's benefits, the definition of the individuals likely to have lost support when the wage earner died. It found that husbands as a class are as likely who have lost support when the wage earner dies as are wives. Wiesenfeld therefore supports our analysis of the statute because it recognizes that being entitled to mother's benefits depends on membership in the class likely to have lost support when the wage earner died. That's the reason that Wiesenfeld was controlling Goldfarb.
Byron R. White: What if we -- what if statute was -- purpose of the statute was to benefit to the children?
Harriet S. Shapiro: Well, if you --
Byron R. White: And this is a discrimination against the illegitimate?
Harriet S. Shapiro: Well, if -- as long as this is a -- as long as you recognize that this is a benefit that is paid to the mother in recognition of a likelihood of support, then the answer is clear --
Byron R. White: That's agreeing with you?
Harriet S. Shapiro: Yes.
Byron R. White: That's agreeing with you. What if we would disagree?
Harriet S. Shapiro: If -- if you feel that the case involves an intent to discriminate against illegitimate children, then we lose. I'm not sure --
Byron R. White: Except on the prospected payments?
Harriet S. Shapiro: Well, the class action in the retroactive payments, yes. I'm not sure that even in that case, the defendant -- the appellees should win because I'm not sure that if you say that this -- that you have to look at this from the point of view of the child, the statute doesn't really make any sense. It's -- you can't look at this as a statute that says mothers of illegitimate children don't get benefits and mothers of legitimate children do. The statute simply doesn't operate that way. The cases we've cited in our reply brief show that it's the relationship to the wage earner plus having in you're here an entitled child. And if you say that any illegitimate -- the mother of any illegitimate child gets benefits. That means that illegitimate children get an advantage that legitimate children don't. And you turn a statute -- you require the statute to favor illegitimates. It -- it seriously distorts Wiesenfeld to read it as meaning that the mother's benefit is really a child's benefit. The Wiesenfeld child was not a party to the case. The court didn't consider his lost of support or need for the replacement of lost support. He was already getting benefits based on those needs. It was the surviving husband that was claiming the benefits. It was his lost of support and his relationship to the wage earner that made him entitled to benefits. Neither is it fair to read Wiesenfeld as meaning that Social Security Act benefits are somehow designed to recognize the emotional trauma suffered by a child who loses a parent, and for that reason, entitled him to the care of his surviving parent who could not have stayed home to care for him before the death. Appellees here are not arguing that this Court's decision approving the use of the marriage requirement is wrong. They don't even argue that the decisions of applying the marriage requirement in the particular context of mother's benefits are wrong. They are not saying that Salfi was wrongly decided or that De Castro was. They argue only that the requirement cannot be used to deprive illegitimate children of mother's benefits because it is a classification based on illegitimacy. But it's not a classification based on the child's legitimacy. It's a classification based on the caretaker's likelihood of lost support that has a disparate effect on illegitimates. That's not enough to show a denial of equal protection. Appellees must show an addition at least that their explanation of the statute's purpose explains its operation better than ours does. The examples given on our reply brief show that the way the statute operates can only be reasonably explained in terms of the replacement of lost support. It's not a grant of benefits to mothers of legitimate children and a denial to mothers of illegitimate ones. Our example show that Congress here as it did throughout the Social Security Act chose to pay benefits only to the people who could show both that they are in a class likely to have lost support and that they have a special need for the replacement of that support. The legitimacy of the child being cared for is totally irrelevant. There's another example of this. When a woman dies living young children, the surviving wage earner's mother or other relative often moves into the household to care for the children and she's then supported by the wage earner. If the wage earner then dies, the grandmother gets no benefits. She has the same problem that Ms. Gonzales has here. She can't show that she's the member of any class Congress concluded was likely to have lost support when the wage earner died. It makes no difference whether the children are legitimate or not in this example. Appellees argument boils down to a claim that a statutory scheme that is neutral as regards to legitimacy must be turned into one that favors the mothers of illegitimate children. This favoritism is then demanded in the name of equal protection. This case presents an extreme example of the risks of seemingly minor changes in the benefit system established by Congress. First, it distorts the statutory purpose of providing benefits only to those most likely to have been supported by the wage earner. Second, the extension of benefits to an additional group means that the real purpose of the benefits may be lost. Neither the new group nor the group that Congress defined may actually get enough support to stay home to care for children. This is because the statute limits the total amount payable on any given wage earner's amount -- account in anyone must. The maximum will always be reached when three survivors are being paid. So, when you have a widow and a child being paid benefits in one household and an entitled child in another household, you will have reached the statutory maximum. If you add the mother of the entitled child, then, the benefits that were previously payable will have to be reallocated from the benefits that were going to three people, the same benefits have to go to four people.
John Paul Stevens: Is that true in the case of adding a divorced wife to the widow when the classes increase, is that same applied? I get the impression from your opponent.
Harriet S. Shapiro: It's the same principle applies. The only people that are outside of the family maximum are the aged divorced wives.
John Paul Stevens: But in this benefit scheme, if you have a widow with the child and a divorced wife with a child --
Harriet S. Shapiro: Yes.
John Paul Stevens: -- you divide the maximum four ways instead of it less worth?
Harriet S. Shapiro: That's right.
John Paul Stevens: I see.
Harriet S. Shapiro: But -- and Congress concluded that in that situation, they were willing to make that that division. But adding to it will undercut the purpose of the statute because it well, increase the number of situations in which you will have spread your benefits so thinly that they won't provide support so that nobody can't stay home.
John Paul Stevens: If the Court will disagree with you and agree with the lower court on the basic issue of whether the larger class should be further enlarged to include unmarried -- persons who never married the wage earner who have children by the wage earner, you then have a kind of a tricky job of rewriting the statute it seems to me because not starts out the widow on the every surviving divorced mother. But I don't understand you to have questioned the remedy in the sense that the court had the power not merely to hold the classification unconstitutional. Say, no benefit shall be paid pursuant to the statute because it's discriminatory. Rather what the court held was we're going on large the class beyond the class described by Congress and pay benefits to people Congress didn't authorize payment. You don't question the District Court's power to grant that kind of relief as I understand you.
Harriet S. Shapiro: No, we don't. That's the kind of relief that this Court has granted in the past in cases in which it found that particular limitations.
John Paul Stevens: There's another cases that construed mother, to mean mother and father or I don't know --
Harriet S. Shapiro: That's true.
John Paul Stevens: But here, I don't know what should do. I don't know what word has a different meaning to all of these. You got to just inject a new word into the statute.
Harriet S. Shapiro: What the District Court said was you can't apply the statutory requirements only in the case of illegitimate children living with -- and their mothers who were denied benefits that get just kind of by main force in awkwardness pulled out that group and said that group gets benefits.
John Paul Stevens: And you don't question the power of the court to have done that? I just want to be clear about that.
Harriet S. Shapiro: No, we don't. Well, we don't question their power. We certainly questioned the advisability of it and --
John Paul Stevens: I understand and that they said they run on the merits and that sovereign immunity point to the others --
Harriet S. Shapiro: Yes, yes.
John Paul Stevens: -- but I just want to focus on that --
Harriet S. Shapiro: That's -- that's right.
Potter Stewart: But even if the court is right on the merits that this is a non-constitutional legislative scheme, could not be argued following up my brother Stevens that that would be the end of the court's functions, not to rewrite the statute to give benefits to other people, but simply to say this is what Congress has enacted as constitutionally invalid.
Harriet S. Shapiro: That cert --
Potter Stewart: But you do not --
Harriet S. Shapiro: It would be an option. I think that it would be very hard on the mother's who are now getting benefits --
Potter Stewart: Of course, it would be. But if this is unconstitutional --
Harriet S. Shapiro: Yes.
Potter Stewart: And this is not the end of the court's function eventually.
Harriet S. Shapiro: It's -- it's not the way this Court has felt their function was -- that that was the end of their function in cases like Wiesenfeld or Goldfarb which -- in which they found that the statute was unconstitutional and expand at the benefits.
Potter Stewart: Well in any event, you don't question the remedy in this case as I understood you --
Harriet S. Shapiro: That's right, that's right.
Potter Stewart: -- to my brother Stevens' question.
Harriet S. Shapiro: Yes, that's right.
Potter Stewart: And you don't get there if you're right on the merits.
Harriet S. Shapiro: That's right. If the Court has no further questions, I withdraw the rest of my time.
Warren E. Burger: Very well. Mr. Semmel.
Herbert Semmel: Mr. Chief Justice, may it please the Court. I believe a simple example illustrates the discriminatory effect on illegitimate children of the marriage requirement for mother's benefits. If we have a wage earner who lives with the woman, has a child with that woman, lives with and supports that child everyday of the child's life until the wage earner dies, but has never married the mother, that family unit is deprived of mother's benefits and the child is deprived of the opportunity for the care of the mother afforded by mother's benefits. On the other hand, if we have a wage earner who marries a woman and while she's pregnant deserts her, never sees the child, never supports the child and dies, that family unit is entitled to mother's benefits and that child receives a benefit of a care of the mother which mother's benefits makes possible. The distinction between the two groups is simply that in one case, the mother and the father married and that the other case, they have not married. And that is precisely the kind of statute which visits the sins of the parents on the child by depriving the child of a benefit, a social welfare benefit, merely because of the lack of marriage of the parents. And the bar here is absolutely. This is not a case like Lucas where the illegitimate child can come in and prove dependency, or where the child and the mother could come in and prove that they had actually been supported by the father of the child at the time of his death.
Byron R. White: But isn't the difference between the class is this depends on marriage, not only legitimacy?
Herbert Semmel: That is almost invariably the case in all --
Byron R. White: Well, will you bring up some examples here. Suppose -- suppose a man lives with a woman and has a child but they aren't married. And for some reason, they have a divorce and agreed upon divorce. At least, they seized living together. And then he marries another woman and then he dies. And the woman has been taking care of his illegitimate child before he died. Now, I take it she's entitled to benefits and the child is too.
Herbert Semmel: Under those unusual circumstances --
Byron R. White: Well, unusual -- you call them unusual, no more unusual than the one you dreamed of.
Herbert Semmel: Well, I'm not --
Byron R. White: Well anyway, the answer is yes --
Herbert Semmel: The answer is yes that under those circumstances --
Byron R. White: The mother gets --
Herbert Semmel: The wife who has a child of a -- her husband, but it's not around would receive benefits.
Byron R. White: So, the line isn't drawn on illegitimacy?
Herbert Semmel: The line is drawn illegitimacy if we define the class Mr. Justice White which is the class is children living -- the general classification is children living with their mother which encompasses almost all children. I believe only yesterday, Mr. Justice Stevens in his dissent in the Caban case noted that virtually all children live with their mothers. The example what you pose is a kind of an exception to the normal living pattern. And so, the general classification is children living with their mothers, and then all illegitimate children are barred from the benefit because their mothers haven't married the father. All legitimate children living with their mothers receive the benefits --
William H. Rehnquist: Then, you're using your definition of a class in effect to explain how the statute operates. And actually, your definition of a class is narrower than the operation of the statute.
Herbert Semmel: The statute -- the definition of a class in some respect was narrower in every possible application of the statute. But in every illegitimacy case that has been before this Court virtually in which the discrimination has been stricken. There has been some group of illegitimate children who qualify and this Court has always looked at the class by comparing legitimate children and illegitimate children similarly situated.
Byron R. White: I just gave you some illegitimate children who were not excluded from this benefit.
Herbert Semmel: That's correct.
Byron R. White: And any man who's been living with a woman and they're not married and she dies and they have had children, it could very usually end up in the situation I just mentioned.
Herbert Semmel: That is correct. But we have had other cases in this Court in which some illegitimate children were not excluded from benefits. But the court nevertheless held that discrimination between legitimate children and illegitimate children similarly situated was unconstitutional. In the Webber case for example, involving workers compensation benefits, legitimate children and acknowledge illegitimate children receive benefits. Other illegitimate children did not, and the court held that discrimination was unconstitutional. In the Jimenez case, we had legitimate children and some classes of illegitimate children receiving benefits. Other illegitimate children did not. And again, this Court held by looking at illegitimate children and legitimate children similarly situated that there was an unconstitutional discrimination. In fact in every case involving the Social Security Act, there are always some illegitimate children who receive benefits because there's a provision in the Act that children who are illegitimate solely because of a defect in a bonafide marriage between their parents are considered legitimate. So that we always have some illegitimate children receiving benefits, yet this Court in two different situations has stricken discrimination against illegitimate children in the Social Security Act. And that's true in almost every other kind of case in which this Court is found discrimination against illegitimate children. There had been some -- in some case, a number of maybe small, in others, the number maybe large, in which some illegitimate children have gotten the benefits. And we would submit that here, the crucial distinction and -- which relates this entire argument of the Government on the likelihood of support. If the court examines the Jimenez case on the hand and the Lucas case on the other hand, and similarly in the different context Trimble v. Gordon on one hand and Lalli v. Lalli on the hand. The distinction is the absolute bar may base on the failure of the mother and father to marry. And so, if this was the statute as we had in Lucas in which the family could come in and have an opportunity to demonstrate that in fact there was support for the family, that would be a different case and might be proper and constitutional under Lucas. Because what Lucas and Jimenez illustrate is that the likelihood of support argument sustains differential treatment only in presuming that all legitimate children are supported, but requiring an additional showing by illegitimate children. But that it does not sustain an absolute bar to illegitimate children and in a particular category, those living with their mothers.
John Paul Stevens: I understand you correctly, you're saying that this statute what you consider a constitutional defect in the statute would be cured if the mother, the unmarried mother were given the opportunity to prove that at the time of the wage earners death, she was receiving the support of the wage earner.
Herbert Semmel: I believe that that is the holding of the Lucas case.
John Paul Stevens: Now, if you concede that and if there were empirical evidence that Congress considered and I don't know whether there is or not that that's true and only 2% of the cases of unmarried mothers, most unmarried mothers who've not been living with the wage earner for a matter of years prior to his death are not then receiving a support, then I would think you have to admit that this classification was irrational classification.
Herbert Semmel: We would not concede that Your Honor, as long as the touchstone was illegitimacy. That --
John Paul Stevens: But the touchstone isn't -- the touchtone is marriage. The outer limit of the class is was the person ever married to the wage earner. And if you concede that that this would be saved by the -- by making special provision for those mothers of illegitimate children who could prove actual dependency, then it seems to me you're argument must really rely on an assumption that a very significant portion of the members of your class were in fact receiving support from the wage earner at the time of death. And you didn't even allege that as to your client.
Herbert Semmel: Your Honor, --
John Paul Stevens: As I remember the pleadings.
Herbert Semmel: The pleadings don't allege that because the case came up on a review of the determination of the Social Security Administration because of the marriage requirement, any question of support became irrelevant, and therefore no evidence was submitted in the administrative process. And none would have been relevant had it been offered. But we would submit that, not only isn't there any empirical evidence, but that the statutory history shows that Congress never had that in mind at all.
William H. Rehnquist: But would have been relevant in the District Court, would it not? You say this isn't just simply a denial of a benefit you're appealing from or you might well be precluded by one of the preclusion section. If you're challenging the constitutionality of a provision, I would think that sort of evidence that you and Justice Stevens had your colloquy about would have been admissible.
Byron R. White: At least, you would have to make some effort to show that Congress was quite irrational and then ever having thought what the Government suggests a thought about it.
Herbert Semmel: Well, I think there two answers to that. One is that the statutory history shows that Congress was irrational in the sense that they were acting out of an intent to exclude illegitimate children as part of a general statutory purpose of discrimination against illegitimate children.
Byron R. White: If you can suggest -- if you can -- if you're right on that, the Government concedes you win, I take it?
Herbert Semmel: I think that's correct.
Byron R. White: If -- if you can spell out of legislative history, a purpose to discriminate against illegitimate children.
Herbert Semmel: Yes, I would like to do that Mr. --
Byron R. White: Would you -- but I take your total argument. If you can't spell that out, you say the effect, the impact on the illegitimate children is sufficient to invalidate the statute.
Herbert Semmel: Yes, but -- that is correct. We would say either way, the statute should be invalidated. But I would like to take perhaps the remaining moments before the break to touch on that question of the intent of Congress here. If we go back to 1939 in the Congress first enacted survivors benefits, the original Social Security Act was simply for retirement, and that in 1939, survivor's benefits were first enacted. At that time, illegitimate children were excluded, children's benefits that were provided or provided only for legitimate children. The Social Security Advisory Board beginning in 1940 expressed itself on that question, pointed to the inequities and urged Congress to correct it. It wasn't until 1965 that Congress first moved to make some change in the total exclusion of illegitimate children. But even in 1965 when they did it, they surrounded the change with a number of discriminatory provisions. One of them was a provision that if by adding illegitimate children's -- children's benefits to the total package on the wage earners account, the total benefits were exceed the maximum than illegitimate children lost all their benefits first, and rather than dividing it proportionally as in almost any other case. And that was stricken by this Court in the summary affirmance of both in the Davis and Griffin cases. The second kind of discrimination was before this Court in the Jimenez case where we were dealing with a very small class of children born after the disability of their father. And under the statute, illegitimate children were not entitled to benefits and legitimate children were entitled to benefits and this Court found that that was unconstitutional. And by Congress by leaving the mother's benefit provision with a marriage requirement, continue the discriminatory effect of that on illegitimate children. That went back to 1939 when illegitimate children were totally excluded from the statute, and I made sense of course the Congress to say with use the term widow because it was only widows and legitimate children that were involved in the benefit package at all. But that this former discrimination carries over along with these other requirements. And again, the provision in the Act that says when legitimate children that -- excuse me, when illegitimate children are illegitimate only by reason of the invalid but good faith marriage of the parents, they are deemed legitimate. And the mother is then deemed a wife under the same circumstances. That again I think indicates that what we had was a general statutory scheme of hostility to children because of the failure of their parents to marry. And that part of that has been removed by Congress, part of that has been removed by this Court. And this mother's benefit is one of the last vestiges of that scheme.
Potter Stewart: When was the divorced former wife and children put into the statute? That was added?
Herbert Semmel: I believe that was during the -- I don't recall the date, Your Honor, I would --
Potter Stewart: But was an addition wasn't it? (Voice Overlap)
Herbert Semmel: That was an addition to the --
Potter Stewart: The later addition.
Herbert Semmel: -- the illegitimate children and so on. It came long after the original mother's benefits.
Potter Stewart: Yes. The original widow.
Herbert Semmel: The original widow. Originally, it was solely the widow, that is the woman who is married to the wage earner at his death.
Potter Stewart: Right.
Herbert Semmel: Chief Justice, I was advised by the clerk that you would take a recess at this time. Would you prefer me to stop now?
Warren E. Burger: At 12 o'clock, you --
Herbert Semmel: Oh, I'm sorry, Your Honor.
Warren E. Burger: 12 o'clock.
Byron R. White: Your light will go on, don't worry.
Herbert Semmel: I see.
Byron R. White: And we will run.
Herbert Semmel: The -- I just like briefly to comment on the Wiesenfeld case. I -- I think it is not accurate to state that that case focused on the husband.
Warren E. Burger: We'll resume at that point at 1 o'clock. Mr. Semmel, you may resume.
Herbert Semmel: Thank you, Mr. Chief Justice. The -- the holding of this Court I submit was very clear in the Wiesenfeld case that the mother's benefit was intended to benefit the child. And in fact, the Government in that case made the same argument that they asserted here that this was essentially spousal support and it was proper for Congress to distinguish between support for wives were normally supported by their husbands as contrasted to support for husbands who are often or perhaps more often than not supported by their wives. And that was been asserted by the Government as the justification for the classification there. And the court's decision finds that the benefit was for the child that therefore we have the discrimination based on sex because woman workers do not get the same benefits for their children as male workers would. And therefore, there was implicit rejection of the notion that the intent of the statute was for spousal support. Now, the fact that a marriage requirement is used in statute does not mean that there is no either intended or effect discrimination against illegitimate children. The very definition of an illegitimate child is a child whose mother and father have not been married. And this Court has stricken down in several occasions the statutory provisions which discriminate against illegitimate children eventhough --
John Paul Stevens: May I go back again the discrimination there was concededly against husbands as opposed to wives. It wasn't any claim of discrimination against any set of children, was it?
Herbert Semmel: The discrimination was against woman workers because on their depth, their children loss the opportunity for the care of parent.
John Paul Stevens: But the victim of the discrimination was the parent.
Herbert Semmel: I believe that the holding of the court is that the victim under discrimination was a child because the child lost the opportunity for the care of the parent.
John Paul Stevens: You don't think it was the sex discrimination case at all?
Herbert Semmel: Yes, it was Your Honor. But the discrimination --
John Paul Stevens: But the only sex -- the difference in sex was at the parent level. It didn't matter whether the children were male or female.
Herbert Semmel: That -- that is correct, but the sex discrimination was against the woman worker, not against the --
John Paul Stevens: But there was an irrational sex discrimination because they purported to justify it on the basis and the different status or the different children. But still, the person being discriminated against was one parent or the other one.
Herbert Semmel: That's correct, but was the working -- I mean it's the working parent that was being discriminated against --
John Paul Stevens: Alright. In here, it's the mother. Isn't it correct to say here the person is being discriminated against is the mother of the illegitimate child?
Herbert Semmel: No --
John Paul Stevens: -- who is not --
Herbert Semmel: That would be the case if you accepted the Government's notion of what the statute is all about, the mother's benefits. Here, the -- if you look at the structure of the statute, we submit that it's clear, and that's what Wiesenfeld said that we have a discrimination against children because the mother's benefits were intended to provide the child with the opportunity for the care of the mother in the home, and that the child is beneficiary, just as the child was a beneficiary --
John Paul Stevens: Well, what happen the --
Byron R. White: Excuse me.
John Paul Stevens: Yes, go ahead, Mr. Justice. I'm just going to say, the child is the beneficiary indirectly, but not in the statutory sense.
Herbert Semmel: Even in statutory sense because in order for this benefit to be payable, the mother must have the child in her care. The child must be receiving children's benefits. It's only when care of child is involved that mother's benefits are payable. The -- as this Court noted in Wiesenfeld and as the statute makes clear, Congress did not intend to provide benefits for widows under age 60. They were expected to go out into the labor market during their normal working life and earn their living. It's only when the widow has a child in her care that the funds are made available.
John Paul Stevens: Can it be if the mother took the money and spend it on clothes or alcohol or something like that?
Herbert Semmel: There is no -- certainly no remedy under federal law in that case that might be problems with the state law. But that is also true Mr. Justice Stevens with children's benefits. That is children's benefits are also paid in most cases to the mother. She could spend that money however she pleases. But it's clear --
John Paul Stevens: But she's a trustee for the child of those benefits. She must use the money for the benefit of the child, doesn't she? I maybe not.
Herbert Semmel: I -- I don't believe there's any specific legal requirement that she do that. It -- it is conceivable that again under state law --
John Paul Stevens: The child would have no claim if she took all that money and spend it on clothes for herself.
Herbert Semmel: Well Your Honor, I think --
John Paul Stevens: I don't think there's a legal difference between the two.
Herbert Semmel: I can't say that the child would have no claim. I think in fact, the child might have the same claim. For example against the mother, if she took mother's benefits and then didn't stay home and take care of the child.
John Paul Stevens: Supposing the child is independently wealthy, maybe inherited a lot of money from somebody.
Herbert Semmel: The child --
John Paul Stevens: Still that you know, that the financial, the poverty isn't the test of whether they get benefits if I remember it correctly, isn't it?
Herbert Semmel: Poverty is not a (Voice Overlap) --
John Paul Stevens: You could have and independently wealthy child, it might be 15 years old, maybe a very successful newspaper author or something, and he doesn't need the money. But in the child's benefit, he's entitled to it but he's not entitled to mother's benefit. Isn't that the difference?
Herbert Semmel: Well, if the child actually has income from earnings which exceed the earnings maximum, the benefits for the child would be reduced to. Similarly, if the mother goes out and works, eventhough she's eligible for mother's benefits, she might not be paid any because of the earnings test and the Social Security Act might reduce all of her benefits to zero.
Byron R. White: Your case wouldn't be really -- wouldn't be any different would it if you just said this was intended to benefit both the mother and the child? Wouldn't your case be the same? The Government's might not, but wouldn't yours be the same?
Herbert Semmel: It were -- I would think that that it would be the same because --
Byron R. White: Just to why get into big argument about whether it was intended to benefit the mother at all. It seems a matter of common sense that it did benefit the mother quite a bit. But it also seems unlike a matter of common sense that it benefitted -- aim to benefit -- that it did benefit, that they do benefit and was aimed to benefit the child --
Herbert Semmel: I think that's correct, Mr. Justice White, I agree with that. So long as the one of the major purposes is benefit for the child if it's deprived of illegitimate children, then deprived of that benefit, then I think I believe are constitutional claim is sustained. The -- once we have a classification -- I mean, I just to go back one moment and just comment again on the marriage requirement as the classification of illegitimacy. The Social Security Act for example never speaks directly in terms of illegitimacy versus the legitimacy, but this Court has stricken provisions of the statute on that ground. The Social Security Act always talks in what we might call a neutral term which is children who inherit an intestacy under state law, and that effectively at least until the Trimble decision barred illegitimate children. Similarly in the New Jersey Welfare Rights Organization case, we have a statute which provided welfare benefits to families consisting of husband, wife and children. And this Court struck that as the discrimination against illegitimate children's well, so that there's no magic in the term illegitimacy being written into the statute. This Court has always taken a look at the -- how the statute operated in practice. The classification of illegitimacy then requires in the constitutional test a little closer look, a little closer scrutiny then it sometimes given to other social welfare benefit cases. I think the court -- this Court has made it clear in everyone of its decisions in point. And the point that Mr. Justice Stevens raised earlier concerning a situation in which Congress may find that only 2% of all mothers of illegitimate children were supported by the father. Of course, Congress has not made that finding. There is no nothing in the record, nothing in the legislative history indicates Congress ever considered that, nor could it have considered that because when mother's benefits were adopted, illegitimate children were ineligible for children's benefits, and therefore ipso facto that they were also not receiving mother's benefits. And therefore, Congress could not have ever taken up this question at any point in enacting mother's benefits. But we would submit that even if Congress had taken that kind of consideration, that a total exclusion of all illegitimate children is not justified by the administrative convenience, that is -- and that was essential the holding of this Court in the Jimenez case where it was argued that after born illegitimate children could be excluded by because relatively few children were involved and that there was an element of administrative convenience in proof of paternity or support. And I believe what the cases require is a closer look at how the purpose can be achieved. If the purpose is to exclude families where the father was not supporting the families and that can be achieved by giving the family the opportunity to prove that they were receiving the support. If only 2% of the families provide that proof, then only 2% of the families will get the benefit. But --
John Paul Stevens: I understand the Government to be arguing that it doesn't matter if administrative convenience but rather that this is a large class of persons. Most of them probably were not receiving support from the wage earner at the time of the wage earners death, and therefore they don't come within the notion of substituting benefits for prior support.
Herbert Semmel: Well --
John Paul Stevens: Isn't -- I don' think it's a matter of administrative convenience because there are a lot of people who might be able to prove they were getting support, a grandmother or a third cousin or a good friend or something, but wouldn't be eligible for Social Security simply for that reason because the Social Security System operates on a bunch of rules that large classes are defined in terms of probabilities.
Herbert Semmel: That's correct, but the difference between third cousins and grandmothers and so on and illegitimate children is of constitutional significance. And this Court has had temptations in which it has held various forms of discrimination against illegitimate children to be unconstitutional. That's just not the case with third cousins or grandmothers. And when you get to that classification, then the appropriate test is to look carefully at the purpose to be achieved. And to meet that test without a total bar of benefits for the class of illegitimate children, and that is the failure of this statute because it bars all benefits to illegitimate children, it bars those benefits whether or not the father had ever supported the children, whether the father had ever supported the mother. And because of that reason alone, the statute falls as unconstitutional. The -- in the remaining moments, I would like to comment just for a moment on the class action aspect of the case. I did not intend to argue on the retroactivity which I believe is well covered in the briefs. With respect to the class action, I merely want to emphasize the limited nature of the class relief and the importance of the class relief. Essentially, the class relief here merely requires the Social Security Administration to notify all families in which illegitimate children are receiving children's benefits of the decision of the court, and so that they will know that now they may come in and apply. They will still have to meet all the other statutory requirements for mother's benefits. They will still have to --
William H. Rehnquist: That's based on 1331 isn't it? That's the only were you can get that kind of relief?
Herbert Semmel: We would submit that we can obtain it either on 1331 if the 205 (h) is not a bar to that.
William H. Rehnquist: I think, didn't we hold in Salfi that it was a bar?
Herbert Semmel: In Salfi, the court -- it's not involved a decision which ordered the payment of benefits to all members of the class.
William H. Rehnquist: And then we said you couldn't bring that under 1331 by reason the preclusionary provisions?
Herbert Semmel: That's correct. But I submit that the difference is that 205 (h) is the counterpart to 205 (g) which provides for judicial review of claims for benefits. And what 205 precludes is a claim that is reviewable under 205 (g). There is no way that a -- either the appellees here or any other potential recipient could file a quote “claim” with the Social Security Administration asking the administration to notify all the class members. And that's why we need the jurisdiction of federal courts under 1331.
William H. Rehnquist: Well, lots of people need the jurisdiction of federal courts, but they don't get it because Congress hasn't given it too.
Herbert Semmel: That's correct, but here, Congress has provided in 1331 for federal court jurisdiction in constitutional claims. That is only reduced by Section 205 (h) to the extent that something is acclaimed under 205 (g). We would submit that this notice of requirement is not a claim for benefits under 205 (g), and therefore not precluded by 205 (h). The other side of that would be that if it is a claim under 205 (g), then the District Court had jurisdiction under 205 (g), and that a class relief is permissible under 205 (g). I know that has been submitted and argued in the Elliott case which is, is a weighing decision.
William H. Rehnquist: Those two arguments are mutually inconsistent to that. You can go either one or the other, but not both.
Herbert Semmel: That -- that is correct. Thank you.
Warren E. Burger: Do you have anything further, Mrs. Shapiro?
Harriet S. Shapiro: First, just as a matter of clarification of the child's benefit must be used for the child. There representative pay -- received the payment on behalf of the child and suppose to use it for the child. The main point I want to make is that --
John Paul Stevens: Before you leave that, what about the mother's benefit?
Harriet S. Shapiro: Well, the mother's benefit is for her own use, and she can use it as she wishes.
John Paul Stevens: I see.
Harriet S. Shapiro: I may have misunderstood Mr. Justice White's question to me earlier. I gather that what you were asking was that if the court should disagree with our position and consider the benefit to be a child's benefit, what then? And the answer would be that there's really in that case to, it's not a discrimination against illegitimates. If you look at from the point of view of the child, what the statute is doing is saying that in the situation where the mother was not married to the wage earner.
Byron R. White: Mrs. Shapiro, suppose the statute said that mothers of illegitimate children do not get these benefits but mothers of legitimate children do.
Harriet S. Shapiro: Well, then --
Byron R. White: Would your position be the same? It didn't sound to me like it would.
Harriet S. Shapiro: Then, if then -- then you're saying it would be intentional discrimination --
Byron R. White: Yes, exactly. And I thought that's all you answered (Voice Overlap)--
Harriet S. Shapiro: Yes, that's what I --
Byron R. White: -- with that kind of thing, you wouldn't agree it was illegal (Voice Overlap).
Harriet S. Shapiro: If it's an intentional discrimination against illegitimate children.
Byron R. White: And I take it as part of your -- part of the submission of your colleague on the other side is that that's what the exactly what the statute is.
Harriet S. Shapiro: Yes. Well, -- but the problem --
Byron R. White: I know you disagree with that.
Harriet S. Shapiro: Yes. The -- the question there I guess would be that if you take that position, then, is illegitimacy a sufficient act -- sufficiently accurate indicator of the likelihood of lost support, so that you can ignore the possibility that there might have been situations in which the child's mother, the wage earner was supporting the unmarried mother of his children.
Byron R. White: Well, it might be almost as good as married if you're non-married, wouldn't it?
Harriet S. Shapiro: Well, no. The --
Byron R. White: I mean, certainly you know that -- there's no -- not a very perfect fit in any of these classification?
Harriet S. Shapiro: That's true. But I guess the point is that if -- comparing this case with Lucas, in Lucas, it was very -- it was significant that there was an opportunity to prove actual dependency. But that may well be because the chances of a wage earner supporting his illegitimate children is greater than the chance that he was supporting his -- the mother of his illegitimate children, so that you have a different kind of a relationship between the policy and the statute here than you would there.
John Paul Stevens: Mrs. Shapiro, I am somewhat puzzled by your concession that intent makes any difference. It seems to me, Congress knew what it was doing in all these cases. And if the test were phrased in terms of mothers of illegitimate children, the mother no longer living with the wage earner, but not having lived with the wage earner at the time of his death. It seemed to me there would be the same probability and it just may be what Mr. Justice White was implying, the same probability that the wage earner was not supporting that particular mother because you really have the same set up whether you describe her as a mother of an illegitimate child or as a person who's not a wife.
Harriet S. Shapiro: Well, the problem is if it's the intent to discriminate or whether it simply a disparate effect of the use of a perfectly proper method of distinguishing between people who are likely to have been supported and people who weren't.
John Paul Stevens: Well, it's always an intent to discriminate if you say that class A gets benefits and class B doesn't get benefits. You're always discriminating intentionally against class B. The people in class B, no matter how you phrase the statute are still a large group of mothers who are not living with the wage earner who happened to have children by him at some earlier point in time. And the constitutionality depends on how they phrase the statute?
Harriet S. Shapiro: No. The constitutionality depends on what whether -- what Congress is doing is trying to distinguish between people who were likely to get support and were not.
John Paul Stevens: In both cases, I assume they were.
Harriet S. Shapiro: Okay. If that's what they were doing, then the fact that this perfectly proper, reasonable statutory distinction has a disparate effect on illegitimate children is not enough to constitute a denial of equal protection. That is the way we read Washington v. Davis. Thank you.
Warren E. Burger: Very well. Thank you counsel. The case is submitted.