Mathews v. De Castro – Oral Argument – November 08, 1976

Media for Mathews v. De Castro

Audio Transcription for Opinion Announcement – December 13, 1976 in Mathews v. De Castro


Warren E. Burger:

We will hear arguments next in 1197, Mathews against De Castro.

Mr. Lee, I think you may begin whenever you are ready.

Rex E. Lee:

Thank you Mr. Chief Justice, may I please the court.

In separate enactments, over the period from 1939-1958, Congress has gradually expanded the social security entitlements of wage earner’s wives.

So that as of 1958, the wife of a wage earner with an entitled child in her care, may obtain benefits without regard or age when the wage earner becomes entitled to primary benefits on his own account.

Also overtime, though for quite different reasons, Congress has expanded and it is extended secondary benefits to certain categories of divorced wives, including a provision that is involved in this case in 1965, that divorced wives defined as those who were married to their husbands for a period of 20 years or more prior to the divorce, are entitled to secondary benefits at the time that the wage earner becomes entitled to primary benefits, provided that they have reached age 62.

So that prior to age 62 wives but not divorced wives, are entitled to receive secondary benefits on the basis of entitled children in their care.

Any possibility under those regulations that a wife could collect benefits from more than one husband, or wife or a former wife?

Rex E. Lee:

I think not.

At least, should that be fairly all, she would have been married to two of them for a period of 20 years.

As I read the legislative history that was the purpose of that 20 year requirement.

I suppose it would be conceivably possible just as the wives being plus 21 years, results of the possibilities of the fertile octogenarian, but that would be rare.

The appellee in this case, Helen de Castro was divorced from Albert de Castro in February of 1968 after more than 20 years of marriage.

The divorce decree did not award her alimony.

Some three years later, after her ex-husband became eligible for primary benefits, Mrs. de Castro applied for wives benefits on Mr. de Castro’s account.

She was then 56 years old and had in her care, a 22 year old disabled daughter.

The daughter was entitled to and continues to receive child’s insurance benefits because of Mr. de Castro’s social security earnings record.

At the conclusion of the administrative process, the secretary determined that Mrs. de Castro was not entitled to benefits, she there upon brought suit, contending with Section 202(b)(1)(b) of the act unconstitutionally discriminates against divorced wives.

The Three-Judge Court ruled in her favor and this appeal followed.

The key to the disposition of this case we submit is contained in two interrelated considerations.

The first is the history of the statutory provisions in which Congress over a period of some three decades has gradually but continually expanded the Secondary Insurance Benefits available to wives and divorced wives, each with its separate rationale, with a single over arching rationale in the case of wives to benefit the family, but with the subsidiary rationale applicable to most of the individual ones.

The second dispositive consideration is the constitutional standard which Congress has held in performing its policy making function of allocating scarce social insurance resources.

I would like to address each of these separately.

First, the history of the relevant statutory provisions.

The controlling feature of the legislative history is that the secondary benefits to which wives and divorced wives are entitled did not result from a single legislative enactment but rather over a period of some 30 years, Congress has incrementally expanded these benefits with the history of each edition, clearly disclosing a proper objective but in no case that the rationale for the particular enlargement of secondary insurance benefits to the wife equally embraced, the class of divorced wives to which the appellee belongs.

When originally enacted in 1935, the Social Security Act provided only primary benefits to the wage earner himself.

The first expansion of secondary benefits occurred in 1939, it was a general expansion it had a general purpose.

That purpose was very clearly set forth in the legislative history and resided by this court as dispositive of the issue in Weinberger v. Weisenfeld and it was to afford more adequate protection to the family as a unit.

In addition, on relevant to this case, the 1939 amendments contained the first instance of extension of benefits on an account of an entitled child in the care of either a wife or ex-wife.

It was a narrow extension, it was made only to widows who had reached either age 65 or had an entitled child in their care.

Rex E. Lee:

Once again, there was a precise rationale for this particular extension in addition to the general family protection that was applicable to the entire package of 1939 secondary benefits.

Again this was quoted in the Weisenfeld opinion and it was that Congress wanted to give the child deprived of one parent, in this case through death, the opportunity for the person with detention of the other.

From 1939-1950, there was no change in the eligibility provisions for wives or widows.

In 1950, Congress extended the entitled child eligibility to the wife of a retired, whereas prior to that time it had only been diseased, wage earner.

The rationale was not the same as it was in 1939 because the wife unlike the widow is not faced with the choice of either foregoing income or leaving the child unattended all together because her husband is not dead, but retirement in the usual case means income reduction.

Extension of this benefit reduced the lead for major adjustments in the family patterns and the normal family relations coming at a time late in the wage earners life.

Eight years later, in 1958, benefits were extended to the wife of a disabled wage earner with an entitled child in her care.

So that as of 1958, we have all of the grounds covered, diseased, disabled or retired.

Once again, the rationale for extension to the disabled, to the wife of a disabled wage earner with an entitled child in her care was tailored to the particular extension, as the house committee report observes the child of a disabled wage earner will usually be younger than the child of a retired wage earner with correspondingly greater need to permit the mother to remain at home, and the house may report further observes that a person receiving disability insurance benefits, frequently has high medical expenses with attendant diminution on the family income.

Each of these extensions of secondary benefits to wives or widows on account of entitled children in their care was bottomed on a distinct but very proper rationale.

There is one unifying feature to the three, and it is that each rationale promoted in some way more adequate protection to the family as a unit.

Neither this general objective of affording protection to the family as a unit, nor the more precisely identified objectives of the 1939, 1950 and 1958 amendments has any relevance to divorced wives.

In the normal case, divorce works a fundamental and enduring change not only on family relationships but also on the financial dependents of one divorced spouse on the other.

The kinds of impact—

Byron R. White:

Are we bound by that observation?

Rex E. Lee:

Well I assume not Mr. Justice White, but it is the kind of thing certainly that under the broad discretion that this court has afforded to Congress in its recent decision is the kind of thing that Congress could have taken into account.

Byron R. White:

well it could have but do you know whether it did or not?

Rex E. Lee:

We certainly know this at a minimum that in 1939, when the initial extension was made that the thing that Congress was attempting to afford more adequate protection for the family as a unit.

We know that in 1958 they had family internal ongoing family relationships in mind, because of the observation that family income would be reduced because of disability.

Byron R. White:

A lot divorced wives are still dependent upon their ex-husbands for their support.

Rex E. Lee:

That is correct.

Byron R. White:

On what basis do you say that the Congress determined or that generally it is true that more divorced wives are not dependent?

Rex E. Lee:

The best figures that we have are those that are set forth in our brief and they indicate that only about 14% of divorced wives are entitled alimony by virtue of the decree.

And about 45% of those 14% actually receive it so we are down to around 6.5%.

Significance of that fact of course is this.

Byron R. White:

Was any of that before Congress or do you know?

Rex E. Lee:

I really do not know.

There is nothing in reports, so to indicate.

But the point is, what you really come down to then is the question of how much leeway do we give to Congress in making these kinds of judgments.

You do have the problem with the 6.5% of the over inclusiveness or the under inclusiveness, the same kind of problem that this court faced in Salfi, the same kind of problem that this court faced just six months ago in the Lucas case, in Dandridge v. Williams, the court said that Congress is entitled to face these problems one at a time and manifestly, when you have a program that is designed to handle the problems of tens of millions of people with desperate requirements and desperate circumstances, there are going to be some ragged edges, as Mr. Justice Stewart observed in his separate opinion Cramer v. Union Police School District.

Rex E. Lee:

That kind of imperfection is part of the inevitable consequence of line drawing.

You always have some instances in which Congress does not and indeed cannot exactly tailor its program to avoid any possibility of anomaly or inequity.

And if there is any message that comes out of Salfi and Lucas, and Dandridge v. Williams, that so long as there is a rationale basis which Congress could have taken into account but that is proper.

Would it be so much trouble to identify needy divorced wives?

Is that the only trouble that Congress is avoiding by this rule?

Rex E. Lee:

No, the problem that Congress is avoiding this approach Mr. Justice White is that, Congress’ bag of funds is limited.

And it can solve only one problem at a time.

I might disagree, in fact, by the time you take into account the number of variables with which Congress has to deal, divorce status as opposed to non-divorce status, age, dependency, and you could go on for about five or six.

And then you consider all of the different combinations that can enter in.

There is no circumstance in which someone cannot (Inaudible) what Congress has done and say you made a mistake.

But you should have allocated more money in this instance rather than —

You have not suggested to me yet any basis for distinguishing between the needy divorced wife and the needy married and the widow, except that it would cost some money and maybe it would cause too much.

I am not saying that would be a bad reason.

But is there any other reason other than the fact that it would just cost some money to identify the needy divorced wives?

Rex E. Lee:

Yes there is.

If you concentrate on that question and incidentally that is the question that the lower court concentrated on and I think that was the root error of the lower court and you ask only the question “Are divorced wives more needy or less needy than wives?

Then I think you might make a fairly good case with the proposition that divorced wives in fact are as needy as a group.

I am just talking about a needy divorced wife and you agree that there would be needy divorced wives.

Rex E. Lee:

Indeed I do.

But that does not render the statute unconstitutional because probably the neediest of all in our society or probably not divorced wives, nor wives but probably orphans who have no parents at all to take care of them.

But the point is that Congress so long as it acts on a reasonable basis.

You mean that money saving basis, I am not saying that is a bad reason but that is what it is doing, is it not?

It is saving money by not identifying the needy wives.

Rex E. Lee:

By going as this court said that they were entitled to precede one step at a time.

Maybe another way to put that would be either they are able of having a single pie to give more money to other disabled categories, to children, to wives, as distinguished from divorced wives by drawing that line.

Rex E. Lee:

That is correct.

And there are at least three differences.

Byron R. White:

Better stay next to that loud speaker, Mr. Lee.

Rex E. Lee:

Thank you Mr. Justice White.

There are at least three differences between wives in this context, and divorced wives, all of which fall within the broad egis or protection of the family as a unit and some of which very specifically were identified by Congress as constituting part of its basis which congress could rationally take into account in making the decision that it did in this case.

Rex E. Lee:

The first is that the death, retirement or disability for the wage earner has an effect on the family income in the usual case.

In the usual divorce situation, this is not true.

In 6.5% of the cases, it is but as I mentioned a moment ago, Lucas held that Congress may make distinctions based on the relative livelihood of dependency.

In that case it was legitimates versus illegitimates, here it is wives dependency versus divorced wives dependency.

The second difference is that there is a living benefit to the wage earner, in that secondary insurance to members of his family increases the family income and does so at the time that there is a reduction in the overall family income.

And finally, the payment of benefits to the wife minimizes the extent to which the family’s normal routine must be disrupted by the wage earners termination of his employment, which was the precise factor that Congress mentioned at the time that it enacted the 1958 edition.

The problems of divorced wives Mr. Justice White are not to be denied but the disadvantages under which their labor are created by the fact of divorce and not by the Social Security Program.

The aspects of impact on the family from death, retirement or disability with which Congress was attempting to deal in this incremental program which had enacted are simply lacking in the divorce context.

The fact that her ex-husband has reached retirement has no effect on the extent of Mrs. de Castro’s need.

Therefore, unlike Weisenfeld, for example, this is not a case where the event that triggered the particular benefit to one class but not another is an event that is accompanied by some hardship on the non-receiving class.

The final observation that I would like to make and I will reserve some time is that even if the legislative history in this case were not as clear as it is, and while Congress did not cover all the basis, we submit the reasons that we just discussed and as set forth in our brief, they did a pretty good job that under the consistent rulings of this court un-clarity as to whether Congress has chosen a proper purpose or an improper purpose works to the benefit, rather than to the detriment of the statute, because under the consistent rulings of this court, the purpose of statutory interpretation is to save and not to destroy.

It would, we submit, be a gross distortion of this principle, to ascribe to Congress, a purpose that it did not have but that would raise serious constitutional questions, especially when both Congress and this court had made it so clear that the focus of these provisions is the protection of the family, it is as Mr. Justice Powell observed in his concurring opinion in Weisenfeld, social security is designed certainly in this context, for the protection of the family.

That was the over riding consideration at the time that Congress first got in to the business of extending secondary insurance, social insurance benefits in 1939, it has been the single over arching purpose since that time and every subsidiary rationale is consistent with it.

The one item that remains for discussion in the course of this legislative history is the history of the one provision, in 1965 that extended secondary benefits to the divorced wife whose husband or who’s wage earner, ex-husband is not diseased.

Here again, the legislative history is very precise and it reveals that Congress intended to handle or to take care of one problem, and one problem only.

It might be said or one of the purpose might have been generally to provide for needy divorced wives, or to provide for the children of needy divorced wives, that was not the purpose of the 1965 amendment.

The legislative history on this matter is very precise and I quote “It is not uncommon for a marriage to end in divorce after many years, when the wife is too old to build up a social security earnings record even if she can find a job”.

Very narrow problem and that is the narrow problem which Congress dealt, and that is one of the two reasons, Mr. Chief Justice, for the 20 year requirement.

The one was an attempt to avoid the multiple claimant situation and the other was to take care of the situation in which a couple are married for many years and at the conclusion of that marriage, the wife is simply too old even if she could find a job to get back into the market and build up a social security earnings record on her own account.

Consequently it was the wife, the older divorced wife who was the focus of the 1965 amendment and not the child.

Mr. Lee, before you sit down, am I correct in understanding that 1965 is the first time when any divorced wives got any benefits at all?

Yes, a divorced wife whose wage earner was still living.

But was there a divorced wife benefit, death benefit before that again?

Rex E. Lee:

Yes, in 1950, it was extended to what they call “Mother’s benefits”, in the case of a divorced wife whose wage earner, ex-husband was dead and there were three requirements, one was that she have an entitled child in her care, second was that the wage earner be dead and the third was that she show a certain major dependency.

Potter Stewart:

That was what was involved Weinberger.

Rex E. Lee:

Yes, Mr. Justice Stewart, that was.

Potter Stewart:

And before 1950 no provisions —

Rex E. Lee:


Thank you.

Warren E. Burger:

Mr. Brusman.

Marvin A. Brusman:

Mr. Chief Justice, may it please the Court.

The issue in this case revolves around the constitutionality of Section 202(b)(1)(b) of the Social Security Act.

That section creates two classes of women.

The first class is composed of wives under age 62 with dependent children in their care to whom benefits are granted.

The second class is composed of wives who have secured divorces after at least 20 years of marriage who are also under age 62 and who also have dependent children of the marriage in their care.

To this group no social security benefits are granted.

And the question that arises is whether this different treatment of married wives and divorced wives with dependent children in their care under age 62 is justified.

Thus, the line that Congress has drawn between married wives and divorced wives with entitled children bear some rationale relationship to legitimate legislative purpose.

It seems to me that it becomes very important for this court to determine what the purpose of this provision of Section 202(b)(1)(b) is.

I submit that the purpose of that provision is to facilitate parental care for dependent children by enabling mothers to remain at home and care for those children.

I think this purpose is clear when you examine Section 202(b)(1)(b).

It provides first of all, benefits to wives and divorced wives upon attaining age 62 regardless of whether or not they have children in their care.

But a young wife, under age 62 is given benefits only if she has a dependent child in her care.

The young wife who does not have a dependent child in her care receives no benefits until she attains age 62.

It seems to me that if Congress were concerned solely for the welfare of the wife, there would be no necessity to condition her eligibility for benefits upon the presence of a child in her care.

Evidently, Congress was concerned not with the welfare of the wife herself but for the child that she bore responsibility for.

Moreover, if you look at the provisions that terminate the benefits that are paid to a wife with a child in her care, you see that the benefits cease when the benefits that are paid to a child cease.

In other words, the wives benefits are linked to the child’s benefits and are paid only so long as it was realistic to think that the child would need his mother’s care.

Warren E. Burger:

Mr. Brusman, in order to prevail on your argument, as I understand your position, you have to first pick out a purpose that to identify that Congress was shooting at and then in effect conclude that it missed.

Is that right?

Marvin A. Brusman:

Well, the standard for testing the constitutionality of congressional legislation, as I understand it, is that the classification drawn by Congress has to bear a relationship to a legitimate legislative purpose and I think it is important to identify that purpose and to see whether the classification drawn relates to it.

Warren E. Burger:

But in identifying the purpose, you necessarily have to take the position that Congress had a purpose in mind but some of them misfired, somewhere between adopting that purpose and getting a law passed.

Marvin A. Brusman:

Not really, because in 1939, benefits were first provided for wives as a class and then in 1950, they were provided to wives with children in their care and it seems that the history is the problem that the benefits that were finally accorded to divorced wives did not begin until 1965.

I think the purpose of providing benefits to a wife with a child in her care was enacted or thought of, back in 1950 when benefits were first accorded to wives with children.

Warren E. Burger:

But do you say we must conclude that each time Congress amended the act, it had the same purpose in mind?

Marvin A. Brusman:

Well, that purpose had not changed.

There has not been any change in that Section of 202(b)(1)(b).

Mr. Brusman, in your brief, you do not cite Mathews against Lucas, decided last June.

I take it, do you feel that has no, no bearing on this case.

Marvin A. Brusman:

I do.

I take that your opposition thinks otherwise because they cited it.

Marvin A. Brusman:


Mr. Brusman, do you think before 1950 when there was a scheme of benefits for wives and no scheme of benefits at all for divorced wives was the scheme unconstitutional?

Marvin A. Brusman:

No, I do not think it was.

But once Congress recognized that divorced wives have the same need for benefits and perhaps just as dependent upon their former husbands as the wives are concerned, once they make that recognition then it seems to me that the provisions such as we have here are unconstitutional.

Does that not assume that divorced wives, as a general proposition are dependent upon their husbands?

Without assumption, don’t you.

Marvin A. Brusman:

I say that they are at least equally dependent upon their former husbands as wives are on their husbands.

And from what do you draw that to?

Through the common human experience or, what?

Marvin A. Brusman:

I would draw that from common sense, yes.

And I—

Well, common sense.

I said common human experience, is that the generality of experience?

Marvin A. Brusman:

It seems to me that a woman—

Is it not a matter of which we could take judicial notice that the majority of women who get divorced, get remarried?

Marvin A. Brusman:

Well, one of the conditions for eligibility under section 202(b)(1)(b) is that she not be—

Yes, I know, but I am speaking of the generality of experience, now you are making a general, postulated, a general proposition that divorced wives as a class were dependent upon their husbands, the husband from whom they were first divorced.

Marvin A. Brusman:

Well, based on my experience, it is not really a divorced wife that we are talking about here.

We are talking about a divorced wife who was married at least 20 years prior to her divorce and who has children of that marriage in her care.

And who was not remarried.

Marvin A. Brusman:

And who was not remarried.

And it is that person that is just as likely to be dependent upon her husband as the wife.

If she can find him.

Marvin A. Brusman:

If she can find it, but that was one of the problem.

What are you going to do with the governments figures about those that you do not find?

Marvin A. Brusman:

It still does not change their degree of dependence.

I do not get what you mean by dependants.

You mean a wife whose husband is not giving her any alimony at all is dependent on it?

Marvin A. Brusman:

Well, the dependence —

Isn’t she?

Marvin A. Brusman:

I think the dependence exists if she cannot find the husband, she has to find some other source of income to survive.

So, she automatically that just by getting married she becomes eligible.

Marvin A. Brusman:

Or if she remarries, she becomes ineligible for benefits under this under this section?

If she marries a man and lives with him 20 years, it makes no difference whether she is divorced or not, it is up to their—

Marvin A. Brusman:

I am not quite sure I had followed what you are pointing out.

That the divorced wife is entitled to be the same as the living one, as the un-divorced wife.

Marvin A. Brusman:

As long as she has a child in her care.

So once she has the child, she is qualified otherwise she loses.

Marvin A. Brusman:

She can lose it if she remarries.

If the child becomes ineligible for benefits, then she loses it as well.

From an examination of the structure of Section 202(b)(1)(b) of the Social Security Act, I submit respectfully that the purpose of that section is to allow a mother to remain at home and care for her child.

And given that purpose, the question then becomes what justification exists for excluding divorced wives and their children from the statutes coverage?

Why should a divorced wife, who was married at least 20 years prior to her divorce be denied benefits in preference to a wife who has not been divorced.

Why should a wife who has separated from her husband be granted benefits and the divorced wife not.

And why should children of divorced parents not have the same opportunity for their parent’s fulltime parent attention that is afforded to the children of married parents.

Mr. Brusman, couldn’t you ask all of those same questions with respect to a divorced wife with children, 63 years old, but only been married 19-and-a-half years.

Marvin A. Brusman:

Its true, but we are not—

But there are whole variety of things that are beyond constitutional that we hold this particular category unconstitutional.

Marvin A. Brusman:

But the question in this case isn’t the constitutionality of the —

But would you agree with same argument applied to that hypothetical case, wouldn’t you?

Marvin A. Brusman:

I would believe so.

A mother is afforded the opportunity of staying home with her child.

A divorced mother must forego that opportunity.

Benefits that Congress thought were essential for the proper care and supervision of the children of wage earners are denied simply because of the mother’s marital status.

And what difference does it make whether the mother is married, separated or divorced, I submit it does not make any difference and that is why this exclusion of divorced wives from the statutes coverage is irrational.

The secretary has argued that there is a rationale basis for this statute.

He argues first of all that wives as a class are substantially more likely to be dependent upon their husbands than divorced wives and are thus likely to suffer a loss of support when the husband becomes disabled or retires.

The basis for that statement are two surveys, a 1925 survey and a 1975 survey, that he cites in his brief and the citation states that only 14% of divorced women receive alimony.

It is important, I think to reflect upon what we are not told by those statistics.

Marvin A. Brusman:

We do not know the percentage of divorced women with children who receive alimony.

We do not know the percentage of divorced women who have been married at least 20 years prior to their divorce and who have children in their care who receive alimony.

We do not know the percentage of divorced women who perhaps — they do not receive support in the form of alimony, do receive in the form of child support and it seems to me that there will be a much higher percentage of divorced women receiving alimony among those women who were divorced after 20 years of marriage with dependent children in their care and so the conclusion that the Secretary draws that wives are more dependent than divorced wives upon the wage earner really has no foundation, because both groups are going to be equally dependent.

I have no figures to cite to you. The only figures the Secretary has are two from a 1925 and a 1975 survey.

What if we agree with those figures or what if think we cannot ignore them, that we must rely on them?

What then?

Marvin A. Brusman:

It seems to me that Congress could not have relied on those figures in enacting this legislation.

A 1925 survey was many years prior to the time that came into law, 1975 survey occurred after this had already been passed.

Yes, but I ask you again, what if we, do you think the facts are relevant?

Do you think the question is relevant as to the proportion of divorced wives that are or are not?

Marvin A. Brusman:

I think the relevant inquiry is the percentage of divorced wives with children in their care that receive the alimony as opposed to —

Do you think that that is irrelevant inquiry?

Marvin A. Brusman:


And how do we find that out, what the answer is?

Marvin A. Brusman:

I think you can base, you can make some assumptions based on personal experience.

But if we agree with the Secretary as to what the percentage is.

Marvin A. Brusman:

Pardon me?

What if we happened to agree with the Secretary as to what the percentage is?

Marvin A. Brusman:

Again, I just do not think that figure is the relevant inquiry.

No, I will put it to you.

What if we decided, what if we thought that from the best information we could find that 10% of them were dependent no more?

Marvin A. Brusman:

10% of what?

Divorced women?

No, 10% of divorced women with dependent children are receiving alimony but no more.

Marvin A. Brusman:

And if the same percentage of married wives with children were dependent upon their husbands then I think the statistics would be relevant.

We do not know the percentage of married wives with children that are dependent upon their husbands, in fact this court, in the Fronteiro decision noted on a Footnote that 41.5% of all married woman were employed.

And you commented that the presumption of dependency of wives upon their wage earners does not bear any relation to present day reality.

And so, it seems to me, you just cannot presume that one group is dependent and then slight statistics show that another group is to — either have to make presumptions in both cases or have statistics in both case.

Assuming that the Fronteiro figure you cited from the Footnote of Fronteiro is valid, what inference should be drawn with respect then to people who are no longer, women who are no longer the wives, roughly of the principal social security accounts?

Marvin A. Brusman:

I do not understand the question.

I do not know if I could make it any clearer.

41%, you said the footnote describes as being employed, not dependent, married woman.

Marvin A. Brusman:

Whether or not they are dependent, we do not know.

All we know is the figure of the percentage that is employed.

Yes, so would it not be reasonable for Congress to infer from that that they were not dependent?

Marvin A. Brusman:

They could infer.

Well then move from the married woman to the divorced women.

On what basis would you assume that there is a dependency of the divorced wives?

Marvin A. Brusman:

Again, I have no figures to cite to you.

But, you have to understand that we deal here with a woman divorced after 20 years of marriage who has a dependent child in her care.

And it seems to me it is the child in her care that is going to determine whether or not she is employed or whether not she is dependent.

The assumption is that a woman with a child or children in her care is going to be at home taking care of that child.

Where do you get that assumption?

Marvin A. Brusman:

Based on what the normal role of the wife has been in our society for many years, although it is changing now.

But precisely the contrary argument about involving mothers –dozens of times here.

Marvin A. Brusman:

I realize that but this legislation was drawn at a time when the wife was traditionally the parent who remained at home and took care of the child.

You are making your claim note today not as of 1965 actually.

Marvin A. Brusman:

That is true.

But it seems to me go back and look at what the purpose was in giving benefits to wives with children.

And if that takes aback before 1965, so be it.

The problem dealt with by this portion of the statute again, I submit is the needs of dependent children.

Those needs exist regardless of whether the child’s mother is married, separated or divorced.

The need of children of divorced parents is no less than the need of children of married parents and the need in each case is the same and should be satisfied for all, by affording benefits.

Are we talking about benefits now for a dependent child or a divorced wife in this case?

Marvin A. Brusman:

The benefits are paid to the wife but the ultimate beneficiary, it seems to me is the child that she is taking care of.

They are paid to her so that she can remain at home and give that child the care, the Congress apparently felt was very necessary.

And having recognized a need among young and disabled children for their —

There is an allowance for the child.

Marvin A. Brusman:

There is and there is an allowance for the child if the mother is married, there is no distinction as far as that is concern.

Having recognized a need among young and disabled children for maternal care, and having determined to fulfill that need by granting benefits to wives who can provide that care.

Marvin A. Brusman:

It is entirely irrational for Congress then to exclude divorced wives and their children from the statute’s coverage.

The divorce of the mother does not change the needs for benefits.

Mr. Brusman, one other question.

Is it that your client could qualify if she were a wife or if she were over 62, as I understand it?

Marvin A. Brusman:

If she were wife, she would be eligible for benefits now and upon attaining the age 62, she also becomes eligible.

Even though she retains her status as a divorcer, do you challenge the age bracket of 62?

Marvin A. Brusman:

No, as far as this case is concerned, we are only dealing with wives with children in their care and divorced wives with children in their care under age 62.

The Social Security Act is designed to pay benefits in accordance with the probable needs of its beneficiaries.

To sustain this legislation, it seems to me this court has to conclude the needs of children of divorced parents are less than the needs of children of other parents.

What would be the needs of a divorced woman, married 20 years with a dependent child who was only 52 years of age?

Would that not be substantially the same as the woman of 62?

Marvin A. Brusman:

I think the needs would be the same.

But that is a part of your case, is it not?

Because your client when she attains 62 will get these things.

Marvin A. Brusman:

Well, she will be getting these benefits.

The relevant point that I am trying to make is, under age 62 wives with children in their care receive benefits, divorced wives in the same situation do not receive any benefits, and yet the needs are exactly the same although, I do not have any statistics to give the court.

Married and divorced mothers with children that have similar needs are treated differently by this section without any rationale justification and absence of rational justification for the different treatment, I submit that this section violates the Equal Protection Guarantees implicit in the Fifth Amendment Due Process Clause.

And accordingly, I urge that the judgment of the District Court be affirmed.

Thank you.

Warren E. Burger:

Thank you Mr. Brusman.

Do you have anything further Mr. Lee?

Rex E. Lee:

If I may just very briefly, Mr. Chief Justice.

First of all with regard to Mathews v. Lucas, I can understand the appellee’s reluctance to discuss this case we submit that it is dispositive for at least two reasons.

One is, that it is bare whole of thing amounts to nothing less in the proposition that Congress is entitled to make distinctions based upon the relative likelihood of dependency.

In that case, legitimacy versus illegitimacy, in this case wives who are dependent on their wage earner husbands as opposed to divorced wives or whom the alimony picture is rather rebelling as it has been set forth in the statistics.

The second significance perhaps goes to an even more fundamental point.

And it is that as I read Lucas, it contains a reaffirmation of the principle that if there is un-clarity in the statute, and its history as to what the purpose of the statute is, you do not describe to it.

That un-clarity works to the benefit of the statute and not to his detriment, that it does not result in ascribing to the statute, a purpose will declare it unconstitutional and specifically, in Mathews v. Lucas, the root error of the lower court was the same root error in this court and that is that that court concluded that that act was not intended to merely replace actual support of the child lost but also obligations to support or potential support.

Here we have the lower court, grounding its decision on an error that with all due respect my opponent has consistently repeated here this afternoon and that is, the assumption that our Social Insurance Program is based on need.

And it simply is not

Rex E. Lee:

And that was not the purpose of this statute, and indeed it is not the purpose of the overall program of social insurance that the —

I take it, Mr. Lee, that if we have to conclude erroneously, I am sure you would say, that the divorced wives and the married wives with dependent children in terms of need are in exactly the same position, you would be making your present argument.

Rex E. Lee:

That is exactly right. That is exactly right!

So that your figures about the relative need of these two groups, you do not think are necessary for the case?

Rex E. Lee:

Oh, No.

They entered into the rationality of what Congress did in acting in the interest of the family.

But those are just sort of major needs.

Rex E. Lee:

But they do it in the particular context of—

Loss of earnings.

Rex E. Lee:

That is right.

And that impact in the family because bear in mind Mr. Justice White, what we are talking about is a program of social insurance.

Insurance, it is a substitute for insurance, so that —

That is a substitute for earnings.

Rex E. Lee:

That is right, and certainly—

Insurance is substitute for earnings.

Not measured by need but it is measured by law.

Rex E. Lee:

That is right and certainly one of the things that Congress could take into account is what the wage earner, the kind of insurance that he would buy if he were rather than having this money taken out of his pay check and having insurance but foring the kind of insurance that he would buy for himself.

And certainly he would provide in the usual case for his family rather than non members of the family.

What is the figure with respect to alimony, got to do with loss of earnings?

Rex E. Lee:

Loss depends on the wage earner.

And a different basis that is applicable to the family unit because of the loss of dependence on the wage earner, which does not exist in the non-family context, and that brings me to the proposition that I looked to very only tangentially earlier, and the point I think that Mr. Justice Stevens was making, and that is that here, unlike Weisenfeld, you have really a list of possible interrelating considerations that could enter in the Congress’s deliberations, age, widow had her survivorship, the relationship to the wage earner, dependency, the time the marriage endured and whether there were entitled children in her care.

Every one of those is a variable, and if you make your determination rest solely upon need, then virtually the entire statutory scheme has to fall because as my opponent has conceded and indeed must concede, the need of one who has been married 19 years by hypothesis will be just as great as the one who has been married 20 years and one month.

The need of Mrs. de Castro does not increase the day that she turns 62.

And similarly, again the relevance to Mr. Justice White of the support figures, in all that 6 5% of the case, the need does not increase when the husband dies.

So that if the focus is just on number one, an assumed purpose, and number two, a purpose that is not in fact the purpose, the Congress had in mind, then the attack on the statute will reach all across as of many-many of its aspects.

Mr. Lee another example and just correct me if I am wrong in this.

If the husband should remarry, does the divorced wife stop being a statutory divorced wife?

Rex E. Lee:

She does not, she does not.

So long as she satisfies the 20 year requirement.

I see.

Rex E. Lee:

As long as she satisfy the 20 year requirement.

All of which leads to the proposition that the only legal issue that is involved in this case, is the same legal issue that the court first considered in Nebbia v. New York, that it has thankfully reaffirmed in Williamson v. Lee Optical, in Salfi, and in Mathews v. Lucas that in the area of allocation of scarce social insurance resources as in the area of economic regulation, So long as Congress cannot be clearly identified to have relied to an improper purpose as it did in Weisenfeld, and so long it has not discriminated, as it has not done in this case, then those policy judgments in allocating scarce resources for social insurance, rest within the sound discretion of Congress.

Under that standard, it is very clear, we submit that the judgment of the lower court must be reversed.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.