The opinion of the court was delivered by: NEALON
In this civil rights action plaintiff, Esther L. Feinerman, attacks the constitutionality of certain sections of the Pennsylvania Veterans' Preference Act of 1945, Pa. Stat. Ann. tit. 51 § 492.2 et seq. Plaintiff contends that the provision of the Act granting a ten-point bonus to the score of any veteran receiving a passing grade on the state civil service examination discriminates against non-veterans generally and women, particularly, in violation of the due process and equal protection clauses of the 14th Amendment to the United States Constitution.
The jurisdiction of the Court is invoked under 28 U.S.C. sections 1343, 2284 and 42 U.S.C. § 1983. Since plaintiff seeks to restrain the enforcement of a State statute, a three-judge District Court was assigned to hear the action in conformity with the provisions of 28 U.S.C. sections 2281 and 2284. See Phillips v. United States, 312 U.S. 246, 85 L. Ed. 800, 61 S. Ct. 480 (1941). The case came on for hearing on May 26, 1972, from which the following facts appear.
The plaintiff has been employed as an Information Writer II, a position in the classified service, on provisional status in Pennsylvania's Department of Education since November 16, 1970. On September 18, 1971, she took and passed the Civil Service Examination conducted by the State Civil Service Commission, receiving a grade of 91.57. Only one other applicant taking the test received a higher raw score. However, because of the application of the ten-point bonus granted by the Veterans' Preference Act, five other applicants, all veterans, had higher final ratings and were placed ahead of plaintiff on the employment list. Pursuant to Section 601.3.1 of the Rules of the State Civil Service Commission, the names of the three eligibles having the highest final rating were certified by the Director of the Commission to the appointing power to fill the position of Information Writer II. Since plaintiff's name was not among the three so certified, she was notified on February 2, 1972, that she would have to leave her employment.
The granting of ten-point bonuses to veterans is made in accordance with § 3 of the Veterans' Preference Act which provides
"Whenever any soldier shall successfully pass a civil service appointment or promotional examination for a public position under the Commonwealth . . . such soldier's examination shall be marked or graded an additional ten points above the mark or grade credited for the examination, and the total mark or grade thus obtained shall represent the final mark or grade of such soldier, and shall determine his standing on any eligible or promotional list, certified or furnished to the appointing or promoting power."
Pa. Stat. Ann. tit. 51 § 492.3
According to § 2 of the Act, the bonus for veterans is given in recognition of "the discipline and experience represented by his military training and for the loyalty and public spirit demonstrated by his service for the preservation of his country." Pa. Stat. Ann. tit. 51 § 492.2. Plaintiff asserts, first, that the right to public employment is a fundamental "right" or fundamental "interest" which, when affected by veterans' preference must be justified by a compelling state interest. Secondly, she argues in the alternative that even if public employment is not deemed to be a fundamental interest, the preference for veterans constitutes discrimination in public employment on non-merit factors bearing no rational relationship to job qualification in violation of the equal protection clause of the 14th Amendment. Moreover, plaintiff further complains that because of the acute disproportion between men and women in the Armed Forces, preference for the veteran results principally for the benefit of men and, therefore, indirectly discriminates against women on the basis of sex. Finally, § 7 which provides for preference in civil service employment for wives and widows of veterans without making a similar provision for husbands and widowers, is attacked as creating a classification which discriminates against men. Inasmuch as the issues raised by plaintiff require different forms of analysis, her claims will be considered separately.
An essential element of any analysis involving the equal protection clause requires a determination of the appropriate standard to be used by which to gauge the constitutionality of a given statute. The traditional equal protection standard looks to the reasonableness of the classification in light of its possible intended purposes. Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). The classification must bear some rational relationship to a legitimate end and will be set aside as violative of the Equal Protection clause only if based on reasons totally unrelated to that goal. McDonald v. Board of Election Commissioners, 394 U.S. 802, 22 L. Ed. 2d 739, 89 S. Ct. 1404 (1969). Under this test, the party challenging the constitutionality of a statute has the burden of proving that the statute denies him equal protection and it will not be set aside if it is reasonably related to some permissible legislative or administrative purpose. McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961); Madden v. Kentucky, 309 U.S. 83, 88, 84 L. Ed. 590, 60 S. Ct. 406 (1940); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 55 L. Ed. 369, 31 S. Ct. 337 (1911).