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decided: December 5, 1974.


Appeal from order of Superior Court, March T., 1973, No. 2, affirming order of Court of Common Pleas of York County, Jan. T., 1972, No. 231, in case of Marian Stottlemyer, a minor by her mother and next friend, Daisy Whipperman v. Eugene F. Stottlemyer.


Alan N. Linder, with him Eugene F. Zenobi, J. Richard Gray, and Tri-County Legal Services, for appellant.

Daniel L. Carn, for appellee.

J. J. Blewitt, Deputy Attorney General, Commonwealth of Pennsylvania, for amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Manderino.

Author: Pomeroy

[ 458 Pa. Page 505]

The Pennsylvania Divorce Law requires that at least one of the parties to a marriage shall have been a "bona fide resident" of the Commonwealth for a period of one year before either party may bring an action for divorce.*fn1 This appeal raises the question whether such a residency requirement is valid under the Constitution of the United States.*fn2

Marian Stottlemyer, the appellant, and her husband, Eugene Stottlemyer, the appellee, were domiciled in Pennsylvania until they moved to Illinois in September, 1970. In August, 1971, after the onset of marital difficulties, the Stottlemyers returned to Pennsylvania and took up separate residences there. On November 16, 1971, the appellant filed a complaint in

[ 458 Pa. Page 506]

    divorce against the appellee in the Court of Common Pleas of York County. From the averments of the complaint it is apparent that neither Marian Stottlemyer, the plaintiff, nor her husband had resided in Pennsylvania for one full year immediately prior to the commencement of the action.

Appellee filed preliminary objections asserting that because the residency requirement of the Act of 1929, supra n.1, had not been met, the court lacked jurisdiction over the cause of action. The trial court sustained the objections and dismissed the action. The Superior Court affirmed, per curiam.*fn3 We granted allocatur because of the important constitutional questions presented.*fn4

Appellant makes essentially two arguments in support of her position that the residency requirement is invalid. The first is that the statutory classification, by distinguishing between those domiciliaries who have

[ 458 Pa. Page 507]

    lived in the state for one year and those who have not, violates her right to the equal protection of the laws in that it impedes her right of interstate travel and is not necessary to promote any compelling state interest. Appellant's second argument is that the statute infringes her right to due process of law by denying her access to the courts for the purpose of obtaining a divorce. We are unable to agree, and will therefore affirm.*fn5


Appellant's first challenge to the constitutionality of the residency requirement is based upon her right to the equal protection of the laws. At the outset, it is important to bear in mind that the equal protection clause has never stood for the absolute proposition that states may not classify individuals for different treatment. Traditionally, state statutory classifications have been upheld if they "bear some rational relationship to a legitimate state end. . . ." McDonald v. Board of Election, 394 U.S. 802, 809, 22 L.Ed.2d 739, 745 (1969). See also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 55, 36 L.Ed.2d 16, 56 (1973); McGinnis v. Royster, 410 U.S. 263, 270, 35 L.Ed.2d 282, 288-89 (1973). In recent years, however, classifications which either are based upon certain suspect criteria or are violative of certain fundamental rights have been subjected to a stricter standard of review; such classifications have been upheld only if found necessary to promote a compelling state interest.*fn6

[ 458 Pa. Page 508]

Thus, the threshold inquiry in the determination of this case, as in any case in which a denial of equal protection is charged, is which standard of review is to be applied.

It is appellant's position that the residency requirement in divorce actions must be subjected to the strict scrutiny of the "compelling state interest" test because it penalizes the exercise of her constitutional right of interstate travel. Although not guaranteed by any express provision in the Constitution, the right to move freely from state to state has long been recognized as a basic right of every American. United States v. Guest, 383 U.S. 745, 757-58, 16 L.Ed.2d 239, 249-50 (1966). "[T]he nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, and regulations which unreasonably burden or restrict this movement". Shapiro v. Thompson, 394 U.S. 618, 629, 22 L.Ed.2d 600, 612 (1969). Finding that some residency requirements impinge upon this freedom of movement within the United States, the Supreme Court has struck down as violative of the equal protection clause state statutes imposing one-year residency requirements

[ 458 Pa. Page 509]

    as conditions to the receipt of welfare benefits, Shapiro v. Thompson, supra, to the exercise of the right to vote, Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274 (1972), and to eligibility for non-emergency hospitalization and medical care, Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L.Ed.2d 306 (1974). In each of these cases, the Court has indicated that any statutory classification which "penalizes" the exercise of the right of interstate travel must be supported by a compelling state interest. Shapiro v. Thompson, supra at 634, 22 L.Ed.2d at 615; Dunn v. Blumstein, supra at 339, 31 L.Ed.2d at 282; Memorial Hospital v. Maricopa County, supra at 258, 39 L.Ed.2d at 315.

While it has thus been protective of the right to travel, the Court has, however, made it clear that residency requirements are not per se invalid. Memorial Hospital v. Maricopa County, supra at 256, 39 L.Ed.2d at 314. Indeed, many such requirements may not even constitute "penalties" upon interstate travel and therefore may not bring into play the strict scrutiny of the "compelling state interest" test.*fn7 For example, in Vlandis v. Kline, 412 U.S. 441, 37 L.Ed.2d 63 (1973), while it invalidated a Connecticut statute providing for certain irrebuttable presumptions relating to student residency,*fn8 the Court indicated that reasonable

[ 458 Pa. Page 510]

    residency requirements as conditions of eligibility for in-state tuition rates could be imposed due to the "special problems involved in determining the bona fide residence of college students who come from out of State to attend that State's public university". Id. at 452, 37 L.Ed.2d at 72. As illustrative, the Court cited its earlier summary affirmance of a federal district court decision upholding the constitutionality of a University of Minnesota regulation requiring that students be bona fide residents of Minnesota for one year as a condition to eligibility for in-state tuition rates. See Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), affirmed, 401 U.S. 985, 28 L.Ed.2d 527 (1971).*fn9 Similarly, in Hadnott v. Amos, 401 U.S. 968, 28 L.Ed.2d 318 (1971), the Supreme Court affirmed a district court decision which, although invalidating Alabama's voter residency requirement, upheld a residency requirement for circuit judge candidates. See Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970).

[ 458 Pa. Page 511]

Thus, the question of whether the "compelling state interest" test is to be applied in a given case where durational residency is involved depends upon whether the particular requirement under review imposes a penalty upon interstate travel. The question is not free of difficulty. As the Supreme Court acknowledged in its latest decision in this field, referring to its own decision in Shapiro v. Thompson, supra, "The amount of impact [upon travel] required to give rise to the compelling state interest test was not made clear." Memorial Hospital v. Maricopa County, supra at 256-57, 39 L.Ed.2d at 314. The Court also implicitly recognized that the "ultimate parameters of the Shapiro penalty analysis" have not yet been defined. Id. at 259, 39 L.Ed.2d at 315.

Nevertheless, an examination of the three major Supreme Court decisions involving state residency requirements sheds some light upon the penalty concept. Shapiro v. Thompson, supra, involved welfare benefits, which for many persons are the sole means of obtaining the basic necessities of life. In Dunn v. Blumstein, supra, it was the right to vote which was involved, a right which the Court described as a "fundamental political right" and the "preservative of all rights". Id. at 336, 31 L.Ed.2d at 280. Memorial Hospital v. Maricopa County, supra, was concerned with medical care, another basic ingredient to the health and welfare of all people. In the case last cited, the Court emphasized that "governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements". Id. at 259, 39 L.Ed.2d at 315. From a study of these decisions we conclude that the extent to which a residency requirement can be said to impose a penalty upon interstate travel is a function of the extent to which the subject matter of the requirement is either a fundamental

[ 458 Pa. Page 512]

    civil or political right or a matter essential to basic sustenance.

The subject matter of the requirement here challenged is the right to seek a dissolution of the marital relationship, i.e., to bring suit for divorce. While this right is indeed important, as the increasing volume of divorces annually granted bears witness,*fn10 and has a direct bearing on personal well being, including in some cases emotional health, we are not persuaded that it is a fundamental civil or political right, or a matter pertaining to the basic sustenance of an individual: it is not of a piece with receipt of welfare benefits, eligibility for hospitalization and medical care, or the exercise of the voting privilege.*fn11 It follows that imposition

[ 458 Pa. Page 513]

    of a period of residence as a prerequisite to the exercise of the right is not such a penalty upon interstate travel as to call for application of the "compelling state interest" test. The residency requirement, therefore, is to be judged by the "rational relationship" standard traditional in equal protection challenges.*fn12

The rational relationship analysis requires that a statutory classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L.Ed.2d 989, 990-91 (1920).*fn13 The application of this test must begin with the identification of the state interests involved in the statute in question. Essentially two state interests are promoted by durational residency requirements in divorce actions. The first is the deep concern of every state in the marital relationships of ...

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