clause has been violated by creating an irrebuttable presumption that the income of the non-legally responsible stepparent is actually available to the class of needy children.
1. Plaintiffs' Equal Protection Claim.
Plaintiffs, in their memorandum of law supporting the motion for summary judgment, contend that "a heightened level of equal protection scrutiny" should be applied in this litigation. Absent such an application, however, plaintiffs assert that the challenged provision also fails to meet the rational basis standard of review. Defendants contend that the only applicable standard is rational basis review and that the challenged provision easily passes constitutional muster. Both sides agree there are no issues of material fact and disposition by summary judgment is appropriate.
It is now generally accepted by both the courts and commentators that in cases involving equal protection challenges the Supreme Court applies three levels of review in ruling on the validity of the challenged statute. Price v. Cohen, 715 F.2d 87, 91-92 (3d Cir. 1983); L. Tribe, American Constitutional Law 991-1146 (1979); G. Gunther, Constitutional Law 670-971 (1980). See generally, Note, Plyler v. Doe, 28 Vill. L. Rev. 198 (1982).
The three tiers of review are the rational basis test, intermediate or "middle-tier" scrutiny and strict scrutiny. The term "heightened" scrutiny has come to signify any standard of review above rational basis. Because of the fairly predictable results which the application of each standard of review often engenders, the initial determination of which standard applies has become crucial.
The rational basis standard of review is the least intrusive standard and provides a presumption of constitutionality. The standard requires only that the law have a legitimate purpose and a rational relationship in the fulfillment of that purpose. The Court has stated that the legislature need not articulate the law's purpose if a legitimate purpose can be hypothesized. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955).
Strict scrutiny, on the other hand, carries with it a presumption of unconstitutionality. The challenged legislation must be narrowly tailored to achieving some compelling state interest. Strict scrutiny review has been limited thus far to classifications involving a "suspect" class, or which affect "fundamental rights" or "interests" protected by the Constitution. To date the Court has identified two classes or groups which clearly qualify as "suspect"; namely, racial or ancestral minorities and alienage. The Court has also identified a number of fundamental rights guaranteed by the Constitution and a number of fundamental interests implicitly protected by the Constitution that are deserving of strict judicial review.
Intermediate or "middle-tier" scrutiny falls somewhere on the continuum between rational basis and strict scrutiny. The Court's articulated standard requires that the challenged law be "substantially related" to "important governmental objectives." Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976). This standard of review has been applied in equal protection challenges involving classifications which are sensitive but not suspect.
It is clear that with respect to the three levels of review both the interest that the state or federal government has in the subject area of the legislation and the means chosen to reach the desired end intensify dramatically as one moves from rational basis to strict scrutiny. Placed on a continuum with the rational basis test on the left, intermediate scrutiny in the middle and strict scrutiny on the right, the degree of interest that must be exhibited by the state or federal government ranges from left to right in the following order: legitimate purpose, important governmental objective and, finally, compelling state interest. The required governmental interest increases drastically as one moves from left to right. The acceptable nexus between means and ends likewise intensifies as one moves from rational basis to strict scrutiny. Arranged on the same continuum, it appears as follows: a rational relationship, a substantial relationship and, finally, a narrow tailoring between means and ends.
Plaintiffs contend some form of "heightened" review is appropriate, i.e., intermediate or strict scrutiny. A review of the applicable case law suggests otherwise.
Plaintiffs' argument for application of "heightened" scrutiny rests on the fact that children are involved. By virtue of their minority, it is argued, children are relegated "'. . . to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. '" Plaintiffs' Supplemental Brief in Support of Motion For Summary Judgment at 7 (quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976), Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 2401, 72 L. Ed. 2d 786 (1982)).
The term "suspect" originated in one of the Japanese internment cases, Korematsu v. United States, 323 U.S. 214, 216, 89 L. Ed. 194, 65 S. Ct. 193 (1944), wherein the court stated that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect." The strict review afforded suspect classifications has its foundation in the celebrated footnote of Justice Stone's majority opinion in United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). Justice Stone opined, in an economic due process case, that the Court had no need to inquire "whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Although occasionally the Court explains the identification of a suspect classification simply by repeating Justice Stone's phrase, the Court has articulated other factors to be considered:
[A] suspect class is one "saddled with disabilities, or subjected to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a "history of purposeful unequal treatment" or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a "discrete and insular" group, United States v. Carolene Products Co., 304 U.S. 144, 152-153 n.4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938), in need of "extraordinary protection from the majoritarian political process." Instead, it marks a stage that each of us will reach if we live out our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny.
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313-14, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976). See also Price v. Cohen, 715 F.2d at 93 (age group between 18 and 45 not a "discrete and insular" group in need of "extraordinary protection from the majoritarian political process.").
There are several difficulties with plaintiffs' position that a suspect classification is involved. Plaintiffs attempt to take a lone phrase from a Supreme Court opinion, out of context, and argue that children are "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." However, one cannot simply lift a single phrase from a Supreme Court opinion and present it as proof positive that this court must apply strict judicial review. This case must be considered in the entire context of the Supreme Court decisions. As a whole, those cases, at the least, clearly reveal that the group must be a "discrete and insular" minority which because of a history of purposeful or unequal treatment or the application of unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities, need extraordinary protection from the majoritarian political process. Both Murgia and Price strongly suggest that age alone does not define such a group.
Another serious flaw in plaintiffs' argument arises even if children could be defined as a discrete group in need of extraordinary protection. The two classes plaintiffs contend are similarly situated are (1) children whose natural parent or guardian has remarried, thus giving those children a non-adopting stepparent, and (2) children whose natural parent has not remarried but may cohabitate with a member of the opposite sex. It is obvious that the discrimination, if any, results not from the age of the children or the fact that they are children but from the remarriage of the parent or guardian. The provision challenged as violating equal protection does not in any way discriminate against children vis-a-vis adults because of their age, nor does it discriminate against children as an identifiable minority class.
Examples of laws which use the age of children as a basis for classification abound: voting age requirements, drinking age requirements, driving age requirements, etc. In short, even if children because of age constituted a suspect class, the challenged provision does not discriminate on the basis of age. The only reason children are involved is because the AFDC statute itself provides benefits only to families with needy dependent children. The "suspect" class, if applicable in this case, would have to be children whose natural parent or guardian remarried. There is absolutely no support in the relevant case law, or any logical extension thereof, that such a group qualifies as a suspect class. There is no history of purposeful discrimination or unequal treatment based upon some stereotypical characteristics not indicative of the group's true abilities. Children whose parents have remarried are not a discrete and insular minority in any sense contemplated by the Court.
Plaintiffs also contend that strict scrutiny applies because the fundamental rights to marry, privacy and the legitimacy of the child have been impinged. This contention misses the mark for several reasons. First, as to any alleged infringement on the right to marry or privacy, the challenged provision is only an indirect interference. The Supreme Court has consistently held that only direct infringements upon fundamental rights trigger strict scrutiny. See, e.g., Carey v. Population Services International, 431 U.S. 678, 688, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977) (substantially limiting access to means of effectuating the decision); Gray Panthers v. Administrator, HCFA, 566 F. Supp. 889, 893 (D.D.C. 1983). There is no direct interference with privacy or marital rights. There are quite a large number of state and federal laws which indirectly affect both privacy and marital rights, e.g., welfare and tax laws. None of these laws are any more or less burdensome than the stepparent provision.
Second, any argument that the challenged law discriminates on the basis of illegitimacy is frivolous. The mere fact that some of the affected children may be illegitimate does not transform the statute's purpose or effect; neither of which discriminates against illegitimate children because they are illegitimate, or for any other reason. The statute in no way reduces or increases aid to a dependent child by reason of the legitimacy of the child.
Lastly, I have serious doubts whether the plaintiff children have the requisite standing to challenge the provision on the grounds of right to marry or privacy. Both concerns appear to be more properly those of their parents. Nevertheless, the holdings above make it unnecessary to resolve this question.
Plaintiffs also contend that intermediate or middle-tier scrutiny applies. This level of review, it has been stated, applies if sensitive but not suspect classifications alone are involved, or if a combination of sensitive criteria of classification with important liberties or benefits is at issue, or if an important liberty or benefit alone is at stake. L. Tribe, American Constitutional Law at 1090 & n. 10 (collecting cases). It is beyond argument that there is no constitutionally protected right to receive welfare. The Supreme Court has consistently rejected any attempt to require the state or federal government to justify economic and social policies by showing some compelling interest. San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973).
The classification at issue has never, to my knowledge, been held to be a sensitive class. I see no reason under applicable law why such a group should be so considered. Likewise, the benefit or interest involved, the receipt of welfare payments through the AFDC program, has never been sufficient to trigger intermediate level review. Finally, a combination of the two does not convince me any "intensive" or "heightened" judicial scrutiny should apply.
As was the case in Murgia, Price and a host of other challenged welfare provisions, the rational basis test is the proper standard of review.
Under the rational basis test, challenged legislation will be upheld unless a plaintiff can demonstrate that the classification at issue does not bear a rational relationship to a legitimate government interest. Mathews v. Lucas, 427 U.S. 495, 510, 49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976).
The stepparent provision of the AFDC program was part of a comprehensive program to control rapidly rising federal expenditures. S.Rep.No. 139, 97th Cong., 1st Sess. 3, reprinted in 1981 U.S. CODE CONG. & AD. NEWS 396, 397-98. Congress' general view was that "these spending reductions are necessary in order to wage an effective battle against the high inflation and unemployment which have plagued the national economy for many years." Id. at 398. Particular reference was made to the AFDC program and an explanation for the proposed changes revealed:
The committee believes that this provision would prevent situations in which children receive AFDC even while they are an integral part of a family which may have substantial income.
Id. at 773.
The Third Circuit has already opined what it believed the primary purpose of the OBRA amendments to the AFDC program to be:
The primary purpose of the OBRA amendments to the AFDC program is to reduce or eliminate welfare benefits for those considered by Congress to be less needy than those completely without resources -- perhaps or households that have available other income or resources with which to support themselves.