Orr v. Orr – Oral Argument – November 27, 1978

Media for Orr v. Orr

Audio Transcription for Opinion Announcement – March 05, 1979 in Orr v. Orr

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Warren E. Burger:

We will hear arguments next in 1119, Orr against Orr.

Mr. Capell, I think you may proceed whenever you are ready.

John L. Capell, III:

Thank you Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

William Orr has been required to pay alimony to his former wife under Alabama statutes, which require payment of alimony by husbands only.

And so the question before you today is whether or not these statutes violate the Equal Protection Clause of the Fourteenth Amendment of our United States Constitution.

This Court’s precedent establishes that laws classifying on the basis of sex are unconstitutional when rooted in the role-typing, one should routinely imposed on women and men.

Two; when that notion that women are men’s subordinates and three, over broad gross ranking of men as dominant and independent, women as weak, inferior and dependent.

As appellee puts it, the law derives from a view of the married woman as a non-entity, a view maintained for centuries but now recognized as archaic, outmoded, and wholly inconsistent with the equal status and dignity of all persons under our law.

Alabama’s scheme rooted as it is in historic role-typing cannot be justified as remedial.

Any attempt to address the classification in a compensatory cloak is inevitably deceivable.

Warren E. Burger:

Would you say that there was something in the nature of role casting and stereotyping in Kahn against Shevin?

John L. Capell, III:

Kahn v. Shevin, sir is a – – I am going to in a moment.

In Kahn v. Shevin, they said was, your Court came out and said that it was alright in that instance because we were dealing with a tax situation and as pointed out in that case, the states are given great leeway in Kahn v. Shevin.

However under the Alabama statute, Your Honor, the situation is on a case-by-case method.

Read in context with Alabama’s alimony statute is common law origin, the Alabama law was hardly designed with economic preference for women in mind as was Kahn.

On the contrary as the appellee’s brief pointed out, the common law subordinated the wife to the husband.

It declared the wife disabled, stripped of her capacity to sustain herself.

William H. Rehnquist:

Well, this particular provision of Alabama’s law was certainly designed to prefer women, was it not?

John L. Capell, III:

It was designed to prefer women sir because there is no statute which prefers men at all.

Men have to pay alimony for one reason because Alabama’s statute says it does.

Potter Stewart:

Well, now the real reason is that court ordered your client to pay alimony?

John L. Capell, III:

Based on an Alabama’s statute.

Potter Stewart:

Yes, but there wouldn’t have been an order to the alimony unless the court under the circumstances of this case thought that such an order was appropriate.

John L. Capell, III:

That is true if the statute would have held to be constitutional without the statute, so alimony could not even be questioned in the state of Alabama.

Potter Stewart:

Did your client ask for alimony in the divorce proceedings?

John L. Capell, III:

He would have had there been a statute.

Potter Stewart:

Did he?

John L. Capell, III:

No sir, no sir he did not Your Honor.

Thurgood Marshall:

And he didn’t protest it?

John L. Capell, III:

Sir.

Thurgood Marshall:

He didn’t protest this alimony?

John L. Capell, III:

He was not allowed to Your Honor at that time because the statute did not allow him to even request alimony.

Thurgood Marshall:

But he didn’t?

John L. Capell, III:

No sir, he didn’t.

Thurgood Marshall:

He didn’t sign a piece of paper saying, now did he?

John L. Capell, III:

No sir, he did not.

Potter Stewart:

Why — the question on my mind and perhaps you can satisfy, that didn’t seem to bother the Court of your state as why this is a case of controversy if your client didn’t ask for alimony?

John L. Capell, III:

The Appellate Courts of Alabama said if the appeal was timely filed when we questioned the judgments that were being — trying to be obtained by the appellee wife against Mr. Orr.

At that point in time, he questioned whether or not this would be a valid judgment based because of the constitutional issue which we are presenting before you today.

Potter Stewart:

But your claim is that, as I understand it that this law of your state is unconstitutional because it authorizes a court to award alimony only to a wife at the expense of a husband?

John L. Capell, III:

That’s right sir, that is – it’s only gender line strictly on sex —

Potter Stewart:

Right and but such there could be a law, preferably constitutional law in your submission that authorized a court to order alimony to either party in a divorce.

In any event this case, the court ordered your client to pay alimony.

John L. Capell, III:

That is correct, the lower court ordered —

Potter Stewart:

I don’t see how this controversy arises unless or until there should be a case in which the divorcing husband asks for alimony from the wife and the court of your state said, no I’d like to give it, it should be given in this case, but I can’t under the statute.

John L. Capell, III:

Alright Your Honor, let me see if I —

Potter Stewart:

Nor does your case as approaching that —

John L. Capell, III:

Well, let’s look at it this way Your Honor.

When a man comes into a court in Alabama in a divorce suit, the Statue of Justice is speaking at that point in time Your Honor to determine what sex he is and they are tilted with the point in time when that man walks into court.

Consequently his ability to —

Potter Stewart:

Generally the husband is of the male sex.

John L. Capell, III:

Yes sir, and consequently also Your Honor the scales are tilted in favor of the woman immediately.

He is bargaining power is suddenly gone from the very point he walks in.

Warren E. Burger:

Well, let’s accept that, but in this case, in this particular case, what is that, that your client was deprived of?

John L. Capell, III:

My client was deprived because of the alimony statute, was suffering financial burden based solely on the unconstitutional statute Your Honor.

Warren E. Burger:

Did he say to the Court, I want $500 a month because the statute which we have had here is an unconstitutional statute and you must give me the same treatment that you give to the wives?

John L. Capell, III:

He did so in a subsequent hearing Your Honor, which is attached and made a part of the appendix of the record.

He raised it when she tried to come in and say, you have to pay me these many dollars and he said that judgment would be illegal because it was being based on a statute which is unconstitutional.

Had he had been in an alimony statute in Alabama, which was sex-neutral, where Mr. Orr could have come in and say, I want alimony, he would have done so.

John L. Capell, III:

Yes Justice Marchall?

Thurgood Marshall:

Is there any payer of alimony in Alabama today who wouldn’t have the same result if you win your case now?

John L. Capell, III:

Would you repeat the first part of that, I am sorry.

Thurgood Marshall:

Could every man who’ve been divorced and has paid alimony in Alabama today, would he have any readdress?

John L. Capell, III:

He could file what was called a petition to modify Your Honor in Alabama based on the change of the law if this Court held the Alabama statute unconstitutional, but this would be hailed again Your Honor on a case-by-case basis.

Thurgood Marshall:

And if this is a man who never litigated this point any place, and he just comes in and say, I want my money back.

John L. Capell, III:

No sir, he litigated it Your Honor in the —

Thurgood Marshall:

He never raised this point, you didn’t.

John L. Capell, III:

In the Court of Lee County, yes Your Honor.

Thurgood Marshall:

Your case said that anybody who had not litigated this point can come in on a contemporaries and win, isn’t it what your case is?

John L. Capell, III:

No sir, not exactly Your Honor.

It was raised at this proceeding.

It was raised in a contempt preceding this issue all of the Alabama alimony statute and it was raised for the first time at that particular point sir.

Lewis F. Powell, Jr.:

May I ask you another question relating to your pros pose (ph) standing here.

Your client agreed to pay this alimony.

John L. Capell, III:

Yes my client, he signed an agreement which the court of Alabama says by its law sir, that it goes into be sure that the woman, not the man but that the woman is protected to sustain the case in Alabama.

Mr. Orr had he had the opportunity though of a sex-neutral statute Your Honor at that time he walked into Court, when he walked in the first time, it is our position he would not have signed an agreement, but he did sign it because he is more vulnerable because of his sex.

Lewis F. Powell, Jr.:

Did you make any record at that time as to what he would have done had it not been for the statute?

John L. Capell, III:

It was raised in the first time that my representation of Mr. Orr Your Honor, which was at a contempt proceeding before the Circuit Court.

Lewis F. Powell, Jr.:

At the time he signed the agreement, he made no reservation whatever?

John L. Capell, III:

No sir.

Lewis F. Powell, Jr.:

And I ask you now, why isn’t he bound by his agreement?

John L. Capell, III:

Because of the wordings of our statute, Your Honor.

Lewis F. Powell, Jr.:

The agreement does not say, I hereby agree to pay alimony to my wife only because the statute of Alabama does not allow alimony to be paid to the husband; it is just a flatter agreement.

John L. Capell, III:

Yes sir, but it is an agreement that is incorporated into a final decree which is looked at by the Court and the lower court at that point in time looks to see what Alabama pay should require that the woman is protected, nothing mentioned about the man.

Lewis F. Powell, Jr.:

Right, but he undoubtedly gained something or perceived that he was gaining something from entering into that agreement, normally one does not agree to something without some consideration flowing to him or her.

John L. Capell, III:

In divorce proceedings Your Honor, in Alabama there are three parties to every agreement.

There is the man, there is the woman and there is the state of Alabama.

The state of Alabama as the cases have pointed out, is a silent party looking to see what, that the women are protected; this case was cited.

This is what Mr. Orr is contending that had he come in, had he been allowed to come in on a sex-neutral basis and he is ready willing and able to go back and to fight on a basis of sex-neutral battle which would be up to the Court of Alabama to hear.

William H. Rehnquist:

Mr. Capell.

John L. Capell, III:

Yes, Mr. Justice Rehnquist —

William H. Rehnquist:

What are we to take it from the procedural history in the Appellate Courts in Alabama in this case?

I take it that the Court of Appeals, the intermediate Appellate Court did pass on the constitutional question which you raised and it ruled against you.

John L. Capell, III:

That’s the Court of Civil Appeals did Your Honor.

They did say that this issue that we were just discussing, while it’s timely filed.

William H. Rehnquist:

Right, and then you petitioned the Supreme Court of Alabama for certiorari?

John L. Capell, III:

That is correct, sir.

William H. Rehnquist:

And the majority of the Supreme Court of Alabama simply did not write an opinion, it simply held that the petition for a writ of certiorari was quashed as improvidently granted.

John L. Capell, III:

Yes sir.

William H. Rehnquist:

Now do we have any opinion of the highest Court of the State of Alabama as to the constitutionality of the statute?

John L. Capell, III:

Yes sir, if you are following that statement of that being quashed, if you look at Justice Almon’s statement, which is a concurring opinion with the majority, you will see that it states and I am quoting in essence that any statute which favors women against men is constitutional.

William H. Rehnquist:

But I take it he concurred specially because the majority did not agree with it, that is what the experience we usually have here?

John L. Capell, III:

Yes sir.

William H. Rehnquist:

And the majority are simply silent and I am wondering in view of our long established rule that one must raise the constitutional issue at the very first point in any state proceeding and must renew it throughout that if Justice Powell’s question to you does not suggest that perhaps the Supreme of Alabama thought the Alabama Appellate Court was wrong in passing on the constitutionality of the issue?

The if the result was right, but that it simply should not have opined on the constitutionality?

John L. Capell, III:

I would like to respectfully state that opinion would not be the reason Your Honor, I would like to maintain before this Court that Mr. Orr does have a standing based on the facts of the Alabama statutes as we have specified.

William H. Rehnquist:

I am not talking about standing Mr. Capell.

I am talking about whether or not the Supreme Court of Alabama, which is the highest Court of Alabama, in fact did give a judgment on a constitutional question which is properly now before this Court.

I realize the intermediate Appellate Court did.

John L. Capell, III:

Yes sir and I have no answer for you to that question Your Honor.

Read in context with this common law origin, the Alabama law was hardly designed with economic preference for women and men.

Potter Stewart:

Excuse me Mr. —

John L. Capell, III:

Yes sir.

Potter Stewart:

— Capell, I am sorry to interrupt up you again, but just so I understand.

My brother Rehnquist in his question referred to the order of the Supreme Court of Alabama, quashing the writ of certiorari as improvidently granted and then Judge Almon or Justice Almon says I concurred in affirming the Court of Civil Appeals.

Is the effect of quashing of a writ of certiorari as improvidently granted in your state, the same as affirming the Court of Appeal?

John L. Capell, III:

In my opinion in this instant that issue, that answer is correct sir.

Potter Stewart:

Because of course that is quite alien to the tradition and practice and rule here in this Court.

John L. Capell, III:

That is correct sir and I do not have a — I would be happy to brief that point and submit a subsequent brief to you on that point Your Honor.

Warren E. Burger:

Why doesn’t the posture of the case the same as though they had denied review in the first instance?

Potter Stewart:

Well, my question — Justice Almon concurring in the quashing of the writ as improvidently granted says, I concur in affirming the Court of Civil Appeals, so does that mean that it was affirmed?

John L. Capell, III:

It meant that the finding of the alimony statute of a constitutional by the Court of Appeals that they are affirming the statute of Alabama concerning to alimony statute sir.

Potter Stewart:

Well, they are affirming a judgment of the Court to which the writ of certiorari is directed?

John L. Capell, III:

Yes sir.

Potter Stewart:

Are they affirming it or they simply dismissing it or quashing it?

John L. Capell, III:

Well, quashing means dismissing.

Potter Stewart:

And what is – you are a Alabama lawyer and you could presumably tell us about the practices in your state?

John L. Capell, III:

Right, quashing does mean to dismiss in my opinion, however —

Potter Stewart:

Rather than affirm?

John L. Capell, III:

Yes sir, but however, Justice Almon said and he had a concurring that he does affirm, he would affirm —

Potter Stewart:

He says he concurs in affirming.

John L. Capell, III:

Yes sir.

Potter Stewart:

Not that he would — not that he individually would affirm?

John L. Capell, III:

And I do not know Your Honor if that’s slightly opined or what of that issue.

Warren E. Burger:

But he cannot bind the other members of the Court by any characterization that he puts on in a single opinion, can he?

John L. Capell, III:

No sir, Your Honor.

Getting back to the question that was asked I was though, when read in context with this common law, Alabama law was hardly designated with economic preference for women.

On the contrary, as the appellee’s brief points out, this common law subordinated women to husbands; declared wives disable and stripped over capacity to sustain herself.

In essence, appellee’s argument that the very legal regime discriminates against a woman can be salvaged if that regime throws the woman a bone after placing her in the cage and this argument could not withstand actual reflection and reason analysis.

You asked me about Kahn; support for one-way alimony statutes, there is a scheme now maintained by rapidly dwindling number of states.

Now, this Court’s decision in Kahn v. Shevin can be distinguished, subsequent decisions Wiesenfeld and Goldfarb, make it apparent that Kahn will not bear the weight that the appellee would place upon it.

As we know Kahn upheld a property tax exemption worth $15 annually, granted to voters but not to where it was.

A key factor in Kahn was the other impracticability of awarding the $15 dispensation on a case-by-case basis.

In the show of contrast an alimony in Alabama has never awarded categorically.

The individual case, one’s ability to pay, the length of the marriage, the other person’s need, all these and other factors, determine how much should be paid and for how longer period of time.

But given that fact that Alabama has chosen to make alimony awards on a case-by-case basis, there is no necessity whatsoever for classification by sex.

Tax classification, because of the impracticability of individualized adjudications is an area in which states have large leeway, but there is no warrant for such leeway in an area such as the one at bar where adjudication must be made again on a case-by-case basis.

Thus the administrative convenience, the prime consideration in Kahn is not tenable argument to our case before us.

Sparing the public purse is not a consideration here as it was in Kahn.

John L. Capell, III:

And in addition, the $15 favoring Kahn was no slide.

It was so slided, it could not be expected to affect the behavior of men and women.

However, a one way alimony statute is the large and capricious reminder in reinforcement of society’s traditional type casting.

Yes, Justice Marshal.

Thurgood Marshall:

Let’s get back to the present day.

You said there was an opinion of Court of Appeals, I can’t find it, it’s just nowhere.

So, where is the opinion that declares this statute constitutional?

John L. Capell, III:

Alright sir.

You look at the Court appendix say — look at page number 10-A if you will Your Honor, on the jurisdictional statement.

Thurgood Marshall:

10-A.

Warren E. Burger:

The Opinion by Judge Holmes, is that what you are –?

John L. Capell, III:

Yes sir, that is it Your Honor.

Thurgood Marshall:

This is the order of 15-A, that’s the order on 15-A.

John L. Capell, III:

Yes sir.

Thurgood Marshall:

I see, thank you.

John L. Capell, III:

Yes sir.

Putting Kahn in perspective with Wiesenfeld and Goldfarb clarify that the Court follows no knee-jerk rule.

Women litigants win, and men, males lose.

As we know both in Wiesenfeld and Goldfarb, men were the complainers.

Men in both cases, as in the instant case, gender type casting frozen in legislation was the target, which was successfully attacked.

In Califano v. Webster, this Court carefully distinguished historic knee-jerk, gender-based categorization no modern law passed in direct response to a wage in job placement, bias against women.

The Webster per curiam makes it clear that the Court will uphold a gender classification, alleged to be it compensatory only if the law in fact was enacted to check adverse discrimination women encounter and not out of prejudice about women’s weakness, inferiority, and dependency.

Further such genuine compensation clarifications must match that remedial end.

Therefore the differential at bar surely does not fit the Webster, it rests on the traditional way of thinking about females.

It plainly was not enacted to remedy or to reduce hostility to women in the labor market.

In summation, the gender classification at issue is a means to allocate maintenance, responsibility post-divorce is patently unfair and does not relate substantially to the state objective.

Functional sex-neutral classification is the fair means readily available to request rights and obligations between spouses, because one way alimony is a historical hangover that discriminates against men and stigmatizes women, the decision below cannot survive reason review and consequently we respectfully request that the Alabama alimony statute beheld unconstitutional.

John Paul Stevens:

Mr. Capell, before you sit down —

John L. Capell, III:

Yes Justice.

John Paul Stevens:

— is there any case that is inconsistent with your opponent’s theory that discrimination against men is permissible if it’s economic discrimination, that’s the heart of their whole argument?

John L. Capell, III:

Yes, its own economics and I think we have to differentiate sir again between Khan with Goldfarb and Wiesenfeld.

Goldfarb and Wiesenfeld, the men did attack this statute that favored women and were successful before this Court.

John Paul Stevens:

Well, why can’t one argue that both of those cases were discriminations – well, let’s see, those discriminations against men or women as you view them?

John L. Capell, III:

Well, I view them as the discrimination against men.

John Paul Stevens:

Well, there is an argument that the female wage earner was the victim of the discrimination, because she got less for her Social Security Taxes.

If you view them that way, is there any case that’s inconsistent with their theory?

John L. Capell, III:

No, if you cast the case of Orr in a standpoint of economic considerations only where you have a gender type role casting.

John Paul Stevens:

Yeah.

John L. Capell, III:

So my answer would be determination of how you look at Goldfarb and how you look at Wiesenfeld.

John Paul Stevens:

Whether they are discrimination against men or women?

John L. Capell, III:

Yes, sir.

Mr. Chief Justice, yes sir, excuse me.

Harry A. Blackmun:

Can I ask a question, if you should prevail here what happens?

John L. Capell, III:

It goes back to Alabama Your Honor.

Harry A. Blackmun:

And then what?

John L. Capell, III:

Alabama will look at this case on a sex-neutral basis, looking at need not sex, looking at the ability to pay; looking at understanding of where both men and women come into Court on an equal basis, where there is no tilt, where there is no favoritism because of sex and that —

Harry A. Blackmun:

What if your Alabama Court says that the result of this litigation is that no alimony is permissible in —

John L. Capell, III:

Two things would happen very quickly Your Honor.

Again it’s up to the Alabama and not this Court it’s my feeling, but Alabama under the common law of doctrine that was in existence prior to the statute could take effect, but they would have to look at it with your order and mine, that is sex-neutral, equality under the law regardless of sex.

Harry A. Blackmun:

So that even if you prevail here, you still may ultimately lose depending on —

John L. Capell, III:

Yes sir, depending on what we call losing and what we call winning Your Honor because I feel that when Mr. Orr came into the lower Court, he came in with not a chance to bargain, to place himself on an equal footing when this is over.

We ask for that right.

Potter Stewart:

You are suggesting that in every divorce in Alabama, the husband is ordered to pay alimony?

John L. Capell, III:

No sir, quietly the contrary Your Honor.

Potter Stewart:

That’s what I thought.

John L. Capell, III:

And yet in many, many cases, there are.

Potter Stewart:

Are you suggesting that your client was entitled had the Alabama statute authorized and allowed it that your client was entitled alimony in this case?

John L. Capell, III:

Whether he was entitled to it or not, we wanted the right to ask Your Honor so that we could go in and quote for the right to obtain.

Potter Stewart:

You certainly have said we don’t under the circumstances of this case my client shouldn’t pay alimony at all.

John L. Capell, III:

Yes sir.

Potter Stewart:

You just told me that.

John L. Capell, III:

Yes sir.

Potter Stewart:

And you said that.

Legions of cases in Alabama, divorce cases the husband is not ordered to pay alimony, right?

John L. Capell, III:

That’s correct sir.

But it is not based on – it was based on the need —

Potter Stewart:

The circumstances of that particular case?

John L. Capell, III:

Yes sir, and there are many men that who fit under that category who should be receiving and who are not sir, because of their sex.

Potter Stewart:

Well, is your client one of them?

John L. Capell, III:

My client would have asked and as a result of asking in my opinion.

Potter Stewart:

But why, he didn’t even say, he didn’t owe any alimony himself?

John L. Capell, III:

Because —

Potter Stewart:

Let alone ask for any from his wife?

John L. Capell, III:

Right because he weren’t allowed to by Alabama law Your Honor.

Potter Stewart:

Well, you are certainly permitted as you just told me to say you didn’t under the circumstances of this case owe the divorced wife any alimony at all, but you didn’t do that.

John L. Capell, III:

No sir, I did not do that because of the fact that is the matter that the state should take up again on a sex-neutral basis Your Honor, not on the basis of whether Mr. Orr is a man?

Potter Stewart:

Whatever sex-neutral or whatever, you never took the position that you did not owe alimony under the circumstances of this case until this constitutional attack on the statute itself.

Under the circumstances of this case you never took the position that there should be no alimony award against you?

John L. Capell, III:

No sir, we did not.

Potter Stewart:

As you tell me, it was wholly permissible in Alabama for you to do?

John L. Capell, III:

It was wholly permissible in Alabama for us to raise the constitutional issue.

Potter Stewart:

No, no.

The contempt citation drew out of a court decree not out of any statute, didn’t it?

John L. Capell, III:

Yeah, based on —

Potter Stewart:

And this court decree was based upon the circumstances of this case in which the court founded under the circumstance of this case your client should pay his divorced wife alimony.

John L. Capell, III:

Yes sir, relying on this state statute.

Potter Stewart:

Well, relying on the circumstances of this case.

The state statute doesn’t require alimony that it doesn’t pay alimony in every case, does it?

John L. Capell, III:

Not in every case.

Potter Stewart:

No.

John L. Capell, III:

But it does, but it strictly related to man thing not women paying sir.

Warren E. Burger:

Wasn’t the divorce Court relying on a settlement agreement here?

John L. Capell, III:

Yes sir, it wherein the state is the third party.

Warren E. Burger:

[Voice Overlap] as Mr. Justice Powell pointed out, the court didn’t have to make any decision except to pass on the settlement agreement, did he?

John L. Capell, III:

That’s why and under the state statute Mr. Chief Justice, they being the third-party involved in each divorce suit, don’t look to the fairness of the award as they should which is our contention.

They look to see if the wife is protected; I am relying on the standard case which is applied to the attached —

Warren E. Burger:

Well, there are several others who were driving at, — trying to drive that; wasn’t the time for him to raise any constitutional question at the negotiation stage in which he would refuse to agree to pay anything and then he might be ordered to pay it and then he would challenge the validity of that order on the grounds that you are now trying to raise here and that the way of constitutional question?

John L. Capell, III:

Yes sir, you are right Your Honor and but in addition to that Mr. Orr as the Alabama Appellate Court stated timely filed his objection to the constitutionality of that statute.

At the time he raised the issue or when she brought him into Court in Alabama —

Potter Stewart:

And the (Inaudible) proceed.

John L. Capell, III:

Yes sir, yes Your Honor.

Potter Stewart:

But under the existing Alabama law, you have told me that a divorcing husband is entirely free to make the point that he doesn’t — he shouldn’t be ordered to pay his wife anything by way of alimony and you never even went that far.

John L. Capell, III:

There would be no hearing on that Your Honor because the courts are not allowed to even decide that or to sit on it, they have even reversed a lower court which allowed a man to stay in the home which state in joint tenancy.

Potter Stewart:

But that is.

John L. Capell, III:

Because of the fact that —

Potter Stewart:

How many Alabama divorces do you would suppose there are where there is no alimony award at all?

John L. Capell, III:

Probably, no alimony of any form —

Potter Stewart:

Can’t put a percentage on it?

John L. Capell, III:

No sir, I would say Your Honor respectfully request to say to you that probably 25% of all Alabama cases there is not some form of alimony, be it alimony in gross.

Potter Stewart:

But there is not any —

John L. Capell, III:

[Voice Overlap]

Potter Stewart:

— and that’s perfectly permissible under Alabama law?

John L. Capell, III:

Yes sir, looking at the ability of the man to pay.

Potter Stewart:

Right and the need of the woman, including her age and the circumstances of the misconduct alleged and so on.

John L. Capell, III:

Yes sir.

Potter Stewart:

We all know that but you didn’t even take that position, let alone that you are entitled to alimony from the wife?

John L. Capell, III:

No sir.

This issue was not raised at the lower Court proceeding, the record is moved on that point.

Byron R. White:

Well, Mr. Capell, yeah suppose the Court of Appeals in responding to your claim had ruled that is as it did on the constitute — but then said even if you are wrong on this nevertheless the statute would still — we would still interrupt the statute is requiring alimony based on need as to either person and in this case, it is already been determined in the divorce court in effect that the wife was needy and that the husband could pay it and the husband doesn’t challenge that here so we are just not going to change the, we are just going to rule against him here.

Suppose the Court of Appeals expressly said that.

John L. Capell, III:

They would have been saying —

Byron R. White:

Would you be here then?

John L. Capell, III:

Would I be here, yes sir, I would be here for the sole purpose —

Byron R. White:

Why would you?

John L. Capell, III:

As in Dale v. Dale, in the Maine case, the situation is such that Mr. Orr standing to come into Court at initial time to ask for fairness and equality under the law the guarantees the Fourteenth Amendment.

These were not allowed to him but in addition.

Byron R. White:

Let me ask you this.

Suppose as an alimony order, denying or granting alimony to the wife ever been reversed by an Alabama Court of Appeals?

John L. Capell, III:

Only upon where the Judge abuses his discretion.

Byron R. White:

Suppose the husband is ordered to pay alimony and he appeals, has he ever won?

John L. Capell, III:

Has he ever won?

Byron R. White:

Has he ever won in an Alabama Court?

John L. Capell, III:

Sure, on the discretionary abuse by the lower Court.

Byron R. White:

On whatever ground, on whatever ground, but so that the Alabama Court of Appeals if it had expressly said that there is already outstanding a Court order for the payment of alimony and it has never been challenged.

You did not challenge after that point except on the constitutional basis.

John L. Capell, III:

We established it strictly on the constitutional basis, yes sir.

Lewis F. Powell, Jr.:

Mr. Capell, if you prevail and the Court should hold that the Alabama Statute is invalid.

Would that result in every alimony decree in Alabama being voided?

John L. Capell, III:

No sir.

Lewis F. Powell, Jr.:

Why?

John L. Capell, III:

Because Alabama takes each case sir on a case-by-case.

Lewis F. Powell, Jr.:

But the statute under which the decree was issued is held to be unconstitutional in this case, why wouldn’t every one of those cases be analogous to your case?

John L. Capell, III:

They would be, they would give rise to the case being brought back before if the man wanted to make the claim saying that this alimony based in max on my case was unconstitutional like wise, but the court would have a sex-neutral statute which I would hope this Court would look at it and adhere by and therefore they could go and listen, otherwise it would not automatically terminate each and every award of alimony prior to the case of Orr v. Orr.

Yes, Chief Justice.

Thurgood Marshall:

Of all of the alimony cases that were handed down the same day this when was handed down, could they all file?

John L. Capell, III:

I can’t, Your Honor sir, I can’t?

Thurgood Marshall:

Why not?

John L. Capell, III:

I can’t answer that.

Thurgood Marshall:

Why could.

John L. Capell, III:

I will say they could file probably.

Thurgood Marshall:

If you could, they could.

John L. Capell, III:

Yes sir.

Thurgood Marshall:

And no magic, did you?

John L. Capell, III:

No sir, there sure is not.

Thurgood Marshall:

Alright.

John L. Capell, III:

Thank you.

Warren E. Burger:

Very well, Mr. Capell.

Mr. Horsley?

W. F. Horsley:

Mr. Chief Justice —

Warren E. Burger:

You might tell us some early points whether you think there is a case here at all?

W. F. Horsley:

No Your Honor, I do not understand the questions by the Court to Mr. Capell to be — if he did not ask for alimony himself, that is Mr. Orr, why would he be able to challenge the constitutionality of a law which doesn’t give him a right to ask for alimony.

I would agree that he should not have such a right.

Potter Stewart:

You don’t make that point in your brief at all?

W. F. Horsley:

No sir, I do not, I have not argue that point up to —

Byron R. White:

And he doesn’t need to deny the wife’s need?

W. F. Horsley:

No sir, he does not.

John Paul Stevens:

Mr. Horsley, let me test that proposition.

Supposing instead of discriminating between men and women the statute said that in appropriate case alimony may be awarded against a black person, but no alimony might be awarded against a white person and then there was a divorce between two blacks and one of them subsequently sought to challenge the constitutionality of the statute even though that person had not affirmed that we sought alimony, he just been required to pay alimony, if you say that black person had standing to attack the statute or not.

W. F. Horsley:

Excuse me Your Honor, the statute said that the black.

John Paul Stevens:

Alimony may be awarded against blacks only.

W. F. Horsley:

Oh.

John Paul Stevens:

And the alimony was awarded against the black who did not ask for alimony against the other person in the lawsuit would the black person of standing to attack the constitutionality of the statute?

W. F. Horsley:

I don’t suppose that the standing question would be any different from this case.

John Paul Stevens:

I don’t think it would either and what’s your answer?

W. F. Horsley:

I am sorry I am not certain that I exactly understand the question.

John Paul Stevens:

The question is if instead of a discrimination between men and women it’s where discrimination between blacks and whites.

Statute said alimony judgments may be entered against blacks, but not against whites and such a judgment was entered against the black person and the black person did not ask for alimony from the other spouse, but sought to challenge the constitutionality of the statute on the ground that violated the Equal Protection Clause.

Would the black person have standing to make the challenge?

W. F. Horsley:

That’s what I am saying, no sir I don’t think that he would any more than Mr. Orr has standing.

John Paul Stevens:

Right, because and why not.

W. F. Horsley:

Because he hasn’t lost anything by it since he wasn’t asking for alimony.

John Paul Stevens:

I see.

The fact that’s the statute that gives the Judge the right to impose and to enter a certain kind of judgment against one class of persons against another no other does not give a member that class standing to attack that statute?

W. F. Horsley:

It is my understanding that to raise the constitutional issue, you should have suffered the discrimination that you are claiming is inherent in the statute and if you haven’t suffered the discrimination, then it is not up to you to raise the constitutional question.

John Paul Stevens:

How else could once suffer the discrimination by being ordered to do what the statute authorizes as against just the members of that class?

How else could he suffer the discrimination?

W. F. Horsley:

Well.

John Paul Stevens:

The burden has been imposed upon him that’s authorized only against members of the class of which he is a member?

W. F. Horsley:

Mr. Orr would have suffered discrimination if he had requested alimony and then denied it because he is saying the imperfection in the statute is that it doesn’t give him a right to ask for alimony, but since he has asked for none, he has lost nothing.

John Paul Stevens:

Okay.

W. F. Horsley:

As I understand this Court’s decisions since 1971 in cases involving gender classification statutes, it is the law that statutes granting an economic preference to women are constitutional and this is so because the Court had recognized that in this country there has been a long history of economic discrimination against women and statutes designed to compensate for that discrimination deny or violate the Equal Protection Clause of the Constitution.

The Alabama law undeniably, economically prefers women, but this preferential treatment as constitutional we say because of its compensatory function.

Mr. Orr, the appellant takes the position that the Alabama alimony law is based an archaic notion that women are not fit to be self-supporting and he says the law thereby produces dependency of women.

We say that it is precisely because of this archaic notion that women are unfit to be self-supporting that the Alabama law was necessary and we say that the Alabama law does not promote dependency rather at the time of divorce, dependency is already an established fact because of the discriminations that have been practiced against the women in the years leading up to the divorce.

The alimony law in Alabama far from promoting dependency gives the women some financial aid to help her overcome dependency.

Thurgood Marshall:

What is there in this regular suit, Mrs. Lillian Orr is dependent on anybody?

W. F. Horsley:

The judgment of the lower Court, the Circuit Court of Lee County Alabama.

Thurgood Marshall:

Says that, says that she is dependent?

W. F. Horsley:

I think that’s the inference of the trial.

Thurgood Marshall:

No, I ask where did it say it?

W. F. Horsley:

It is not written down so far as I know.

Thurgood Marshall:

It’s not in this record.

W. F. Horsley:

No sir.

Thurgood Marshall:

But how can you argue it?

W. F. Horsley:

Under the Alabama alimony law, in the cases in Alabama construing it, the trial judge takes in, is to take in —

Thurgood Marshall:

That would apply to a woman who has an independent income of $80 million, right?

W. F. Horsley:

What I am saying —

Thurgood Marshall:

Right, right?

W. F. Horsley:

Would it apply to?

Thurgood Marshall:

Yeah.

W. F. Horsley:

Yes but the Court would have the discretion that to give her alimony.

Thurgood Marshall:

Yes it would.

W. F. Horsley:

Yes.

Potter Stewart:

But presumably a Court wouldn’t order her husband to pay her alimony.

W. F. Horsley:

That was not pointed, yes sir.

Potter Stewart:

She herself had an income of $80 million?

W. F. Horsley:

Yes sir.

Thurgood Marshall:

And where does that case?

W. F. Horsley:

Where is —

Thurgood Marshall:

The only case you’ve got is Mr. Justice Stewart is talking about so far?

W. F. Horsley:

The — all of the —

Thurgood Marshall:

You have any – thought beside that in the Alabama courts?

W. F. Horsley:

I do not have the cases in hand Your Honor —

Potter Stewart:

In an Alabama divorce, does the husband always required to pay alimony?

W. F. Horsley:

No sir.

Potter Stewart:

And upon what does the decision to order him to pay alimony depend?

W. F. Horsley:

The decision depends on the needs of the wife, the needs of the husband —

Potter Stewart:

The needs of the wife and among other things.

W. F. Horsley:

Yes sir.

John Paul Stevens:

But it is true, is it not that there are cases in which the wife is not needy but nevertheless receives alimony?

W. F. Horsley:

That is possible under the Alabama alimony law that could perhaps be an abuse discretion subject to reversal.

John Paul Stevens:

But the causes could be perfectly properly ordered if you had a wealthy wife and an extremely wealthy husband, you might still find that, that it’s appropriate to have some alimony, would you not?

W. F. Horsley:

Yes sir.

Thurgood Marshall:

The court is real court.

W. F. Horsley:

Yes sir.

Thurgood Marshall:

It is the wife of a broken marriage who need financial assistance for whom the alimony statutes of Alabama were designed, I don’t say one word about married at all.

W. F. Horsley:

One word that.

Thurgood Marshall:

She had a broken marriage, this will entitle her to it?

W. F. Horsley:

I think it said that she was in financial need.

Thurgood Marshall:

[Inaudible] from the Georgia Supreme Court.

W. F. Horsley:

Oh from Georgia.

Thurgood Marshall:

Well, you adopted it?

W. F. Horsley:

Yes sir.

Thurgood Marshall:

Page 12A.

Of the jurisdiction says that.

Warren E. Burger:

Of course the trail court didn’t have to worry about too much when he had an agreement to the husband to pay?

W. F. Horsley:

Yes sir, that’s true.

Warren E. Burger:

It didn’t have to do any measuring of need because the parties between themselves had arrived in agreement on the need and on the obligation.

Thurgood Marshall:

They agreed on both?

W. F. Horsley:

Yes, the trial court nearly approved the agreement that parties had already entered.

Thurgood Marshall:

They agreed that she needed it and he had it, they agreed on both?

W. F. Horsley:

I think that’s the effect of it, yes sir.

Let me give an example of what I considered to be a fairly typical alimony case which I think illustrates the justice of the Alabama law.

If you assume that back in 1958, two persons 20 years of age of equal ability and intellect and competence were married, the wife at that point could well have surveyed the job market and made a decision to enter it.

You will understand we are talking about 1958 and this would be before the Equal Pay Act and before Title VII of the Civil Rights Act.

She would see a job market where she would make less wages than her male counterpart.

She would have less opportunity for advancement and perhaps even less opportunity to get employment.

So this hypothetical person back in 1958 would have decided quite reasonably to become a homemaker and the husband at that point perhaps went to work for a bank.

20 years later they both 40 years old, they are getting a divorce.

The husband at this point is inline to become President of the bank.

The wife, if she goes to work for a bank probably has to go to work as a secretary or a teller.

The difference in the financial rewards offered by the positions of bank President versus bank secretary are obvious, but the differences do not exist because the man is more competent than the woman.

The difference exists because of the discriminations against the woman that steered her into her role as homemaker and cost her to forgo the education and the training and the experience that would have today qualified her for the better job in the better paying position in the more responsible position.

Under these circumstances, we say under Alabama law it’s entirely proper to compensate her to make up for the opportunity that she lost because of the discrimination she faced back at that time.

Now the appellant has made the point that there are some men who are dependent on their wives and they need alimony in the event of a divorce.

That’s true and to illustrate that factual situation, let me reverse my example and suppose that this woman back in 1958 had in spite of the discrimination she saw in the job market, gone ahead and gone to work for the bank and the husband became a homemaker.

If they were divorced today it would be the husband who had the greater financial need than the wife, but under Alabama law he would not be entitled to alimony, but the big difference here is that he would find himself in financial need by choice rather than force.

When he surveyed the job market back in 1958, he did not find it unreceptive to him as it was unreceptive to his wife.

If he stayed out of the labor force it was not because of any discriminations against him and he would not have any claims under a statute which is designed to compensate for past discrimination.

I think this very point was noted in one of the dissents in Kahn versus Shevin where it was said while doubtless some widowers are in financial need, no one suggests that such need results from sex discrimination as in the case of widows.

W. F. Horsley:

I think that the same thing could be said of divorcee as was the set of widows.

Many states do have laws which provide for alimony to man and there is nothing wrong with such laws if that type of law is worth the legislature that state determines represents the will of its people but this is not to say that the legislation must be designed in that fashioned to be constitutional.

This is a decision for the state legislatures to make and Alabama has determined that its compensatory alimony law thus represent the will of its people.

So but for the archaic notions regarding women the opportunities would not have been denied them, an alimony wouldn’t be necessary.

Since 1971, this Court has repeatedly acknowledged the fact that woman have been denied equal opportunities in the business world.

In the majority opinion in Kahn versus Shevin it was said there can be no dispute that the financial difficulties confronting the lone woman in Florida or any other state exceed those facing men.

In every sex discrimination case of this Court since 1971, it has been held that if the challenge statute granted an economic preference to woman, it is constitutional.

Dissenting in Kahn versus Shevin, Justices Brennan and Marshall argued that Florida tax exemption statute was over inclusive because need was not considered under the terms of that statute.

Under that statute, a wealthy woman who had not suffered from discrimination would have the same tax exemption that a poor woman would have.

But I am taking the position that the Alabama alimony law is not subject to that attack because alimony in Alabama is not mandatory.

It’s up to the trial judge to make a determination as to whether or not it should be awarded.

Need is certainly a consideration to the used value judge in exercising his discretion.

In Califano versus Webster, this Court held that statutes economically preferring women constitutional unless one of two circumstances existed, unless the law has actually the effect of penalizing woman such as in the Wiesenfeld case or the law was not intended is compensation.

We have tried to demonstrate today that Alabama’s law doesn’t penalize woman because it doesn’t produce dependency, it doesn’t steer them into a role as a homemaker and make them dependent on their husbands.

As I have said I thank dependency is already established by the time of divorce.

The roles to be played by the parties to a marriage are ordinarily selected at the beginning of the marriage.

I don’t think it’s reasonable to suppose that marriages are begun in anticipation of divorce.

So the prospect of alimony should not be a significant factor in the selection of roles by the parties.

In any event alimony speculative is to where it will be awarded or not.

Mr. Capell mentioned that he thought perhaps in 25% of the cases there was no alimony award made.

I have no statistics to back me up.

Byron R. White:

Well, Mr. Horsley was there a finding of fault in this divorce decree?

W. F. Horsley:

Not in the divorce decree because it was agreed upon by the parties.

Byron R. White:

So, there is no necessity under the Alabama law to find — to assign a fault to issue the decree?

W. F. Horsley:

No sir.

Byron R. White:

Well then I take it then that the alimony order which the Court made must have been issued under section 30-2-51 since the other two sections that deal with when fault is found and that section expressly conditions alimony upon the wife’s estate being inadequate for her support.

Isn’t that right?

W. F. Horsley:

Yes, if the wife has no separate estate or if it is insufficient for her maintenance.

Byron R. White:

Well, I take it that if that is the section under which this Court this particular divorce court proceeded, mustn’t we assume that there is a finding that her estate was insufficient.

W. F. Horsley:

I think that’s true Your Honor.

Warren E. Burger:

Is that not a reason —

Thurgood Marshall:

I think —

W. F. Horsley:

That it is Your Honor but the alimony —

Thurgood Marshall:

What’s the statute got to do with the agreement?

The agreement said that she needed and he had. You know what the agreement said, he paid her money.

W. F. Horsley:

Yes sir it is.

Yes sir but –

Thurgood Marshall:

What else do you need?

W. F. Horsley:

Well, I don’t think absent an alimony statute at the lower Court would have had jurisdiction to even approve that agreement providing for alimony, if there weren’t some statutory basis for alimony.

Byron R. White:

Well, there certainly was a Court order to pay it, wasn’t there?

W. F. Horsley:

Yes.

Byron R. White:

And if it wasn’t paid, the non-payer might be held in contempt?

W. F. Horsley:

Yes sir.

Byron R. White:

If the order was valid, it was valid because position under this particular section?

W. F. Horsley:

Yes sir.

Warren E. Burger:

But intervening where as the agreement of the parties which made it unnecessary for the Court to make any findings, isn’t that so?

W. F. Horsley:

Yes sir, that’s true.

The court so far as acted, took no testimony and made no investigation.

It simply approved the parties’ settlement agreement.

William H. Rehnquist:

Supposing an Alabama Court would have been presented with a settlement agreement, you’re bound to inquire on its own and to whether the wife was needy or not or whether it simply approved the settlement agreement?

W. F. Horsley:

It certainly has the discretion to do that and it can be done either way.

William H. Rehnquist:

Is there any normal practicer or does it just depend on which judge it happened to be before?

W. F. Horsley:

It will depend on which judge I will — in my own personal experience, judges would ordinarily approve whatever agreement parties have made, the judges that I have dealt with.

Potter Stewart:

Would that include an agreement under which the wife conveyed property to the husband?

W. F. Horsley:

I know of no case in which the Court has approved that sort of an agreement, I don’t know that one has been presented to the Court.

Potter Stewart:

There is such a thing as the marriage between a reasonably impecunious husband and a reasonably affluent wife.

W. F. Horsley:

Yes sir.

Potter Stewart:

And when divorce comes along depending upon their then relative needs, relative ages and relative ability to get jobs and what not, the number of children and so on, where the cost is going to be, it’s not unusual to that elementary fairness would seem to dictate that there should be a conveyance of property from the wife to the husband and many settlement agreements are made in various jurisdictions providing?

W. F. Horsley:

Yes, nearly, now they are many —

Potter Stewart:

Have you ever heard of such a settlement agreement in Alabama?

W. F. Horsley:

There are many property settlement agreements where the husband for instance ends up with the home or the car.

Potter Stewart:

Yeah.

W. F. Horsley:

I know of no cases where the hosts been has ended up with a sum of money to be paid on the —

Potter Stewart:

But you know of many occasions where there has been a conveyance of the wife’s property of any kind to the husband in —

W. F. Horsley:

I know of none where it was the wife separate estate.

They are many —

Potter Stewart:

Do you have community property in Alabama?

W. F. Horsley:

No sir.

There are many cases so where the parties own —

Potter Stewart:

Jointly owner.

W. F. Horsley:

Jointly with survivorship for instance.

Potter Stewart:

And the husband has given —

W. F. Horsley:

Yes sir.

Potter Stewart:

— use and occupancy of that property?

W. F. Horsley:

Yes sir.

Potter Stewart:

Would that be, is that just because certain trial judges kind of wink at the provisions of the Alabama statute or do you think that’s legal under Alabama rule?

W. F. Horsley:

I think that it’s legal under the Alabama law because they can make an attempt to determine whose property is whose at the end of the marriage.

Potter Stewart:

Oh, at the end of the finding is that this nominally jointly held property is really the husband’s property, well that’s quite different?

W. F. Horsley:

Yes sir.

Potter Stewart:

I am not talking, I am not asking about that.

W. F. Horsley:

Well, I do not know of any case where property that would have truly be nothing but the wife’s could be awarded to the husband.

Potter Stewart:

Would that be a legal under Alabama law?

If the settlement agreement is reached on those lines?

W. F. Horsley:

I think it probably would — yes I think it would.

William H. Rehnquist:

Counsel, are the statutes that we have been questioning both you and your opponent about on page 3 of the jurisdictional statute, do 30-2-51-52-53 deal only with alimony or do they deal with distribution of property among the parties to or are there other sections of the Alabama Court to deal with the distribution of the property upon the break up of the marriage.

W. F. Horsley:

I think these are the only ones Your Honor.

William H. Rehnquist:

So these deal with both?

W. F. Horsley:

Yes sir.

Thurgood Marshall:

Do you have to have residence for a divorce in Alabama?

W. F. Horsley:

Yes, sir.

Thurgood Marshall:

But I noticed that he wasn’t there at the divorce.

W. F. Horsley:

He was there at the time of the divorce and at the time he raised his constitutional challenge some several years later, he had moved to California.

Thurgood Marshall:

Well, I am reading that the complaint Lillian appeared with her attorney on page 17-A.

W. F. Horsley:

Yes sir that is not the final judgment of divorce this is the judgment that the court entered at the time he made the constitutional challenge and he lived in California then.

You see this is dated 1976, the divorce actually occurred back in either 1973 or 1974.

Again, looking at the Califano versus Webster decision, the court there said that compensatory legislation should have been intended as such to be constitutional.

The appellant of course has argued that the Alabama law was not intended as compensation, because he says that it grows out of the husband’s common law obligation of support.

We say that the husband’s common law obligation of support was intended as compensation and alimony merely continues that obligation after marriage.

The Alabama Appellate Courts have viewed the obligation of support as compensation to the wife or the rights taken from her by marriage such as the right of contract, the right to own property in her own name.

These rights were stripped from the women in common law and it was because of the scrapping of those rights, it’s my understanding and contention that alimony was granted to the wife to make up for that.

Now, it should be noted on the question of intent, what the legislation intended.

This Court approved Florida’s tax exemption statute in Kahn v. Shevin presumably, determining that the Florida legislature had a compensatory intent in mind.

The Florida statute was passed in 1885.

Alabama’s alimony law was passed in 1854, only 31 years separated the passage of these laws.

There is no reason I think to attribute a more benign purpose to the Florida legislature than to the Alabama legislature, but this Court found that Florida’s purpose was compensatory, certainly Alabama’s ought to be found to be compensatory also.

Thurgood Marshall:

Excuse me (Inaudible) still worries me.

W. F. Horsley:

Yes sir.

Thurgood Marshall:

If Mr. Orr was under the jurisdiction of the court in the original divorce action, why did he file this motion specially?

W. F. Horsley:

I don’t know Your Honor.

Thurgood Marshall:

He didn’t submit to the jurisdiction of the court, did he?

W. F. Horsley:

He did, no sir.

That’s true, he did not voluntarily submit to the jurisdiction of the Court.

Thurgood Marshall:

Except on August 19, this is the order of the court.

The respondent William Orr appears specially.

W. F. Horsley:

That’s true.

Thurgood Marshall:

And you still say he did appear in person at some time?

W. F. Horsley:

Well his attorney was there to file the special appearance challenging the constitutionality of the law in 1976.

Thurgood Marshall:

When the divorce itself was granted, was he there?

W. F. Horsley:

Yes sir.

Thurgood Marshall:

Why would he come in specially?

W. F. Horsley:

I don’t know Your Honor.

Warren E. Burger:

Can you appear especially in your state and challenge the constitutionality of a statute which isn’t implicated?

W. F. Horsley:

I don’t know why he appeared specially.

There is a provision for special appearances ordinarily, if you have some matter in abatement, you appear specially.

But I see no real reason for him to appeal it specially to challenge constitutionality.

Thurgood Marshall:

(Inaudible)

Potter Stewart:

He had a careful lawyer who was kind of preserve —

W. F. Horsley:

Yes sir.

Lewis F. Powell, Jr.:

Mr. Horsley, what were the grounds of divorce alleged in the complaint that you filed?

W. F. Horsley:

Adultery.

Lewis F. Powell, Jr.:

And that was a fault, wasn’t it?

W. F. Horsley:

Yes.

Lewis F. Powell, Jr.:

So that —

W. F. Horsley:

However I will have to admit that the lower Court did not make any finding as to whether our the allegations were supported in that, since we agreed on the divorce and the property settlement.

Warren E. Burger:

Well then you don’t grant divorces by stipulation in Alabama, do you?

There must have been at least in implicit finding of faults or the Court wouldn’t have the jurisdiction, would it?

W. F. Horsley:

Well, we do have no file divorce in Alabama, incompatibility is also ground for the divorce.

Harry A. Blackmun:

I turn back to Mr. Justice White’s question.

This divorce is under 51, not 52 or 53?

W. F. Horsley:

I think 52 Your Honor, wasn’t —

Harry A. Blackmun:

Well, 53 speaks of misconduct, as I recall?

Potter Stewart:

51 (Inaudible)

W. F. Horsley:

Oh, 51 yes that’s correct.

Potter Stewart:

It had to be.

W. F. Horsley:

Yes sir.

In conclusion, Alabama’s alimony law we contend passes the test devised by this Court in Kahn v. Shevin and Califano versus Webster.

Now on that basis, we would urge this Court to hold Alabama statute constitutional.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.