Celebrating Women's History

Weinberger v. Wiesenfeld: 1975

Appellant: Caspar W. Weinberger
Appellee: Stephen Charles Wiesenfeld
Chief Lawyer for Appellant: Keith A. Jones
Chief Lawyers for Appellee: Ruth Bader Ginsburg and Melvin Wulf
Appellant's Claim: That the District Court erred in its finding that Stephen Wiesenfeld's constitutional rights were violated by Social Security provisions that awarded survivor benefits to widowed mothers, but not to widowed fathers, upon the death of a working spouse.
Justices: Harry A. Blackmun, William J. Brennan, Jr., Chief Justice Warren E. Burger, Thurgood Marshall, Lewis R. Powell, Jr., Potter Stewart, William H. Rehnquist, and Byron R. White; Justice William O. Douglas, due to illness, did not participate.
Place: Washington, D.C.
Date of Decision: March 19, 1975
Decision: That the gender-based distinctions of Section 402(g) of the Social Security Act violated the Due Process Clause of the Fifth Amendment and were therefore unconstitutional.
Significance: This decision discounted two stereotypical views of the marriage partnership: "namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage-earners do not significantly contribute to their families' support," and "women as a group would choose to forego work to care for children while men would not."

Following the Supreme Court's 1971 historic decision in Reed v. Reed and its subsequent decision in the 1973 Frontiero v. Richardson case, two other cases in which men claimed sex discrimination came before the justices. In Kahn v. Shevin (1974), the Court ruled that Florida's statute granting widows — but not widowers — an annual $500 exemption from property taxes was constitutional. The Court thought that the exemption bore "a fair and substantial relation to the object of the legislation," that is, to reduce "the disparity between the economic capabilities of a man and a woman" arising from either "overt discrimination or . . . the socialization process of a male-dominated culture."

In Schlesinger v. Ballard (1975), the Court upheld a Congressional regulation requiring the honorable discharge of any male navy lieutenant or marine captain who is twice passed over for promotion, while permitting female navy lieutenants and marine captains a minimum of thirteen years of service as unpromoted officers prior to such discharge. In its opinion, the Court ruled that such discrimination was permissible. The regulation reflected "not archaic and overbroad generalizations" but the "demonstrable fact" that female officers — barred as they were in 1975 from combat missions and ships engaged in other than medical and transport activities —"had less opportunity for promotion than did their male counterparts. . . . A longer period of tenure for women officers would, therefore, be consistent with the goal to provide women officers with 'fair and equitable career advancement programs.'" In Weinberger v. Wiesenfeld, the court would find no such justifications.

A Breadwinner by Any Other Name
Stephen C. Wiesenfeld and Paula Polatschek married in 1970. Paula had been employed as a schoolteacher for five years prior to her wedding, and she continued to teach following her marriage. She provided most of the couple's economic support during the marriage, earning $10,000 in 1970 and 1971, years in which Stephen earned between $2,000 and $3,000. In 1972, Paula earned $7,000 and Stephen, $2,500. Following Paula's death in childbirth on June 5, 1972, Stephen applied for social security benefits both for their newborn son, Jason Paul, and himself.

The maximum social security contributions had been deducted from Paula's wages in each of her working years, and on Jason's behalf, Stephen was awarded $3,000 per year. A surviving widow in these circumstances would have also been awarded an additional $3,000 per year on her own behalf, a sum that would have been reduced by $1 for every $2 earned over $2,400 per year, and eliminated once the widow's earnings reached $8,400. However, the widower — because of his sex — received nothing.

In February 1973, Wiesenfeld filed his lawsuit with the three-judge United States District Court for the District of New Jersey. His lawyers, Ruth Bader Ginsburg and Melvin Wulf, filed a summary motion requesting that the court find Section 402(g) of the Social Security Act, under which Wiesenfeld had been denied benefits, unconstitutional insofar as it treated men and women differently.

They also requested an injunction against Secretary of Health, Education, and Welfare Casper Weinberger, prohibiting him from denying benefits on the sole basis of sex, and an award of survivor benefits due to Wiesenfeld from June 1972 forward. The district court issued a summary judgment in Wiesenfeld's favor, on the basis that the provision violated the Due Process Clause of the Fifth Amendment. Weinberger made a direct appeal to the Supreme Court.

A Widower's Right
Ginsburg argued Wiesenfeld's case before the Supreme Court on January 20, 1975. She maintained that Section 402(g) of the Social Security Act discriminated against Wiesenfeld and, just as seriously, against Paula Polatschek Wiesenfeld. Paula, she argued, had contributed to the Social Security program on an equal basis with similarly salaried men, and yet she had not received equal protection for her family.

Attorney Keith A. Jones took another view of the disparate treatment. Arguing for the government, he said the program treated widowed women more benevolently than widowed men in an attempt "to offset the adverse economic situation of women by providing a widow with financial assistance to supplement or substitute for her own efforts in the marketplace."

Justice William J. Brennan, Jr., delivered the opinion of the Court on March 19, 1975. He agreed that the Court, in Kahn v. Shevin, had upheld a discriminatory provision on the grounds that it helped to compensate women for the greater financial burdens they generally faced upon the loss of their spouse. He said that provision differed from the social security provision in question, which, "linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender-based distinction which diminishes the protection afforded to women who do work."

He pointed out that social security provisions denying benefits to widows younger than age 60 and without dependent children, was further evidence that "Congress was not concerned in Section 402(g) with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work."

Quoting from Reed, the opinion affirmed the decision of the District Court in favor of Wiesenfeld:

Since the gender-based classification of Section 402(g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like statutes there, "[b]y providing dissimilar treatment for men and women who are . . . similarly situated, the challenged section violates the [Due Process] Clause."