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March 5, 1976

ALBERT A. LEWIS, et al., Plaintiffs
JAMES L. COHEN, et al., Defendants

The opinion of the court was delivered by: HIGGINBOTHAM

 Plaintiff, a retired male railroad employee, claims that a statute passed in 1945 is now in violation of the Fifth Amendment and is also in contravention of Title VII of the Civil Rights Act of 1964 because it permitted women with 30 years of railroad service to retire at age 60 with full benefits, while men with similar service would have their annuity partially reduced if they retired between the ages of 60 and 64. This precise issue was previously decided by me on April 22, 1975, when I granted defendant's Motion for Summary Judgment and held that the statute in issue, § 228b(a)(3) of the Railroad Retirement Act of 1937, as amended (hereafter "Act"), did not illegally discriminate against male railroad employees. See Memorandum Opinion, Lewis v. Cohen, Civil Action No. 73-2876 (E.D. Pa., filed April 21, 1975).

 I would have preferred to not add to the litany of words *fn1" answering those perceptions of some males who think that in some way they are now victims of monstrous injustice or unjustified "statutory favoritism" *fn2" whenever women today gain even some miniscule advantage over their male counterparts. But, due to an unfortunate administrative snafu, more now has to be written.

 When my opinion of April 21, 1975 was filed, I was not aware of the fact that plaintiff's counsel had filed *fn3" with the Clerk's Office the deposition of Dr. Herman P. Miller. Dr. Miller, a distinguished statistician, had submitted data suggesting that there was no rational basis in fact for the legislation passed in 1945 which gave women an advantage in earlier retirement benefits. *fn4" No copy of Dr. Miller's deposition was forwarded to my office by either counsel for the plaintiff or the Clerk's Office. Thus, appropriately, plaintiff's counsel has filed a petition asking that I reconsider my opinion in view of Dr. Miller's deposition.

 Dr. Miller's deposition, and plaintiff's extensive legal argument now based thereon, concern basic perceptions of the status of women in 1945 when the legislation was passed. Were women generally, or at least in the railroad industry, truly on parity with men in terms of employment opportunities? Did they really have equal opportunity for advancement? Was 30 years labor in the railroad industry "harder on women than on men"? *fn5" On the basis of the data then available, could Congress rationally find that there was a disparity in the treatment of women and/or discrimination against women in the railroad industry? Upon making such finding of disparity or discrimination or greater wear, could Congress deal with such disparities by passage of an act giving women slightly advantageous retirement benefits as are reflected in the amended 1937 Act?

 Having pondered these additional questions raised by plaintiff's Petition for Reconsideration, I again conclude that the statute in question is clearly constitutional and hence there is no need for the appointment of a three-judge court to determine its validity.


 Section 228b of the Railroad Retirement Act of 1937, as amended, provided that "women who will have attained the age of sixty and will have completed thirty years of service" shall be eligible for full retirement benefits, but that each man "who will have attained the age of sixty and will have completed thirty years of service" will have his annuity "reduced by 1/180 for each calendar month that he . . . is under age sixty-five when the annuity begins to accrue." *fn6"

The railroad retirement system was created in 1935 as a special benefit system for railroad workers. It is federally -- administered but has always been self-supporting from contributions by the workers and the railroads. . . . The system has lacked a clear set of objectives, delineating between the socially-weighted benefits provided under a social insurance scheme and those appropriated to a private industry supplementary pension plan. 1973 U.S. Cong. & Adm. News 1649 (emphasis added).

 The Railroad Retirement Act of 1937 provided for a system of annuity and not pension benefits. Railroad Retirement Board v. Bates, 75 U.S. App. D.C. 251, 126 F.2d 642, 645 (D.C. Cir. 1942). The Act was weighted in favor of complete retirement upon receipt of annuity payments. United States v. Bush, 255 F.2d 791, 794 (3d Cir. 1958). *fn7" The annuities under the Act are paid from a fund to which "the employees and the railroads have contributed equally on all salaries of employees earned after December 31, 1936." The fund is set up on an actuarial basis. Scott v. Railroad Retirement Board, 227 F.2d 684, 686 (7th Cir. 1955).

 There is an effort to operate the Railroad Retirement benefit system in tandem with the Social Security Act. "Historically, whenever social security benefits have been increased, railroad retirement benefits have also been increased comparably." 1973 U.S. Cong. & Adm. News 1617. Consequently, annuity payments provided for under the Railroad Retirement Act are not the equivalent of payments made pursuant to a private pension plan.

 The most important part of the legislative history of § 228b is the January 31, 1945 testimony of the then Chairman of the Railroad Retirement Board, Mr. Murray W. Latimer, before the House Committee on Interstate and Foreign Commerce. In the course of his testimony, Mr. Latimer noted that the purpose of "social insurance" such as that established in part by the Act was "that of providing security" through the "promise of fixed incomes." Hearings on H.R.1362 Before the Committee on Interstate and Foreign Commerce, 79th Cong., 1st Sess., pt.1, at 134 (1945) (hereafter "Hearings"). Latimer rejected the concept of using "the retirement system as a regulator of the labor market" either through the provision of compulsory retirement at 65 or through allowance of retirement at an early age with full annuity benefits. Hearings, supra, at 135-136. Latimer's conclusion was founded, to some degree, on a consideration of "the experience in other retirement systems where annuities were available at an age below that at which workers normally cease to seek employment." That experience indicated that laborers retiring at an arbitrarily pegged early age not only remained in the labor market, but also were in a "preferred position." These individuals could "substantially increase their incomes" by "offering to take work at wages slightly under the prevailing rate" because of the security of an "assured income." Hearings, supra, at 135-36. After rejecting the notions identified above, Latimer discussed the suggested amendment of the Act's annuity provisions which allowed for the early retirement of women with full annuity benefits. The chairman maintained, as he had earlier in his testimony, that "special provision for women seems to me appropriate." Hearings, supra, at 136. The unavoidable inference from Latimer's testimony is that Congress was providing for the earlier retirement of women with full benefits at an age at which female workers "normally cease to seek employment," and not before.

 In addition, Mr. Latimer commented on the low representation of women in the railroad industry:

Women have, at least until recent years, been represented only to a minor degree in the railroad industry. Even among qualified workers in the benefit years 1943-44, women constituted slightly less than 4 percent. Hearings, supra, at 116.

 The most critical portion of Mr. Latimer's testimony was his comment, as follows, on the suggested amendment to § 228b:

Special provision for women is appropriate. There is much evidence that, despite the greater longevity of women as compared with men, their efficiency on jobs outside the home tends to become impaired at an earlier age than in the case of men. In its report for 1943, the Social Security Board stated that there was 'little doubt that the proportion of women unable to engage in regular employment at age 60 is larger than the proportion of men at age 65.' Most pension systems of private employers, having any substantial number of women workers, make provision for retiring women at an earlier age than male employees. The Social Security Board has recommended that income benefits for women under the old-age and survivors' insurance system begin at 60. The provision in H.R. 1362 does not go as far as the recommendation of the Social Security Board; I think it an appropriately cautious step in the right direction. Because it fits, as far as it goes, the peculiar needs of women workers, it can hardly be said to involve any element of discrimination in favor of women over men. Hearings, supra, at 50.

 Subsequent to Chairman Latimer's testimony, Congress enacted the statute now in issue.


 There has been a gradual evolution in the equal protection standards used by the Supreme Court in evaluating challenged state and federal legislation. *fn8" Commentators have dubbed the various doctrinal postures assumed by the Justices in their constitutional analyses the "old," "new," and "newer" equal protection tests. *fn9"

 Under the "old" equal protection schema, a classification adopted by a state or national legislature had to 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." F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920) (emphasis added). Despite its initial holding that all similarly situated persons would receive equal treatment, the Supreme Court found it necessary to veer from a course consistent with its announced doctrine in order to avoid placing legislators in a "constitutional straitjacket." Consequently, the Justices found that a statute satisfied the requirements of the Equal Protection Clause once the mere rationality of its classifications was demonstrated. Any legislative line-drawing, not involving race or touching upon interests like voting or travel, was valid under the "old" test so long as the distinctions were rationally supportable. The constitutionality of a legislative act was not dependent upon a detailed statutory history revealing the purpose for the classifications embodied therein. In fact, a statute could withstand an equal protection attack even if the statutory history was silent with respect to the legislative purpose. The result of the Court's attempt to balance the need for equal treatment of persons similarly situated against the necessity for legislative classifications was that a statute was invalidated for abridging the Equal Protection Clause only if "no ground" could be "conceived" to justify the distinctions embodied therein. McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 22 L. Ed. 2d 739, 89 S. Ct. 1404 (1969). This extreme deference to legislative judgments, upon a showing of the rationality of the classifications, prompted one constitutional scholar to remark that legislation was accorded only "minimal scrutiny in theory and virtually none in fact." *fn10"

 Some legislative classifications, namely those considered invidious, prompted detailed scrutiny by the Court before it upheld or struck down a statute on equal protection grounds. The "new" equal protection analysis was called for either when the legislature made a distinction among persons on the basis of race or alienage, or when an interest of sufficient importance, e.g., voting or travel, was impeded by a legislative differentiation. The reasonableness of a statutory measure and some laudable objective for its enactment were insufficient, without more, to secure the statute against constitutional assault. The classification would stand only if the proponent of the statute could demonstrate that it served a compelling interest that could not be achieved in other ways. *fn11" The legislature was relegated to a much narrower battleground in its attack on social and/or economic ills. Not only was the court unwilling to imagine rationales for the classification in issue, but also the classification must have been a necessary means of achieving the purpose the statute was designed to implement. Consequently, the statute must have neither imposed burdens nor bestowed benefits on more individuals than were essential to accomplish the purposes of the act. At the same time, the classifications could not result in the exclusion of individuals similarly situated who should have been benefited or burdened depending on the over-all design of the challenged statute. Unlike the analysis sketched in Jefferson v. Hackney, 406 U.S. 535, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972), where the legislature was entitled to partially address a particular problem, *fn12" here the legislature could fall neither wide nor short of the designated purpose and hope to pass strict constitutional muster. Professor Gunther maintained that the "new" equal protection mode of evaluation resulted in judicial scrutiny which was "'strict' in theory and fatal in fact." *fn13"

 The polarity of the "old" and "new" equal protection tests was disturbed when the "newer" constitutional theory was formulated in Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), which will be discussed later in this opinion, and in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972). Eisenstadt involved an equal protection challenge to a conviction under a Massachusetts statute which prohibited the distribution of contraceptives to unmarried individuals by persons authorized to distribute drugs. While the Court recognized that the object of such legislation, consistent with the Equal Protection Clause, could have been the deterrence of premarital sex, it rejected that proposition as one that could not "reasonably be regarded as the purpose of the Massachusetts law." Eisenstadt, supra, 92 S. Ct. at 1035. Rather than accepting any imagined rational purpose for a legislative classification, the Court conducted an inquiry into the actual purposes of the legislation. Unlike the "new" equal protection test, here there was no requirement that the classification selected be the least drastic alternative for achieving a legislative purpose. No compelling interest was required for upholding the statute as constitutional. However, under the "newer" equal protection format, the Court required that the legislative purpose "have substantial basis in actuality, not merely in conjecture." *fn14"

 The "newer" equal protection doctrine may, in fact, constitute nothing more than an infusion of new resolve into the original or "old" equal protection test defined in F. S. Royster Guano Co.15 Whether the "newer" equal protection doctrine imports that the Supreme Court has come full circle in its constitutional analysis or not, it is important to recognize that the three standards sketched above are being applied concurrently. The "newer" equal protection doctrine does not spell the death either of strict judicial scrutiny or of mere rationality. *fn16"

 One question for decision in this case is which of the above standards is applicable in my evaluation of § 228b of the Railroad Retirement Act. A review of the Supreme Court's recent decisions in cases where classifications were allegedly based on sex will aid in arriving at an answer to the above question.

 Just as constitutional doctrines develop over time, so too, societal perceptions are altered and reformulated over a span of years. Views of societal structure are reflected in our judicial decisions, so that any consideration of the Supreme Court's recent decisions regarding alleged sex discrimination must begin with a consideration of the Court's changing attitude toward women. The United States Supreme Court in decades past has sanctioned patent deprivations of opportunity for women. Thus Myra Bradwell was denied admission to the bar of the State of Illinois in 1872 solely because she was a woman. *fn17" Except for Chief Justice Chase, all of the Justices felt that the denial of her admission to the bar did not violate her federal constitutional rights. Justice Bradley felt compelled to add a concurring opinion:

On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong or should belong to the family institution, is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

 Bradwell v. State of Illinois, 83 U.S. 130, 139-42, 21 L. Ed. 442, 445-46 (1873).

 However, the Court, *fn18" by 1973, had adopted a different stance toward the female population of the United States. In Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), four Justices noted that Thomas Jefferson believed that "women should be neither seen nor heard in society's decisionmaking councils." *fn19" In response to Jefferson's admonition, the Court stated that ". . . our Nation has had a long and unfortunate history of sex discrimination" which has been "rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, ...

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