SECTION 202(c) (1) (C) and 202(f) (1) (D) (42 U.S.C. 402(c) (1) (C) and 402(f) (1) (D) ) HUSBAND'S AND WIDOWER'S INSURANCE BENEFITSREQUIREMENTS FOR ENTITLEMENT-DEPENDENCY-CONSTITUTIONALITY 20 CFR 404.316(a) (3) and 404.331(a) (6) CALIFANO v. GOLDFARB, 97 S. Ct. 1021 (1971) SSR 77-26c Survivors' benefits based on the earnings of a deceased husband are payable to his widow regardless of dependency. However, under section 202(f) (1) (D) of the Social Security Act, benefits based on the earnings of a deceased wife are payable to her widower only if he was receiving at least one-half of his support from her. Held, the gender-based distinction created by section 202(f) (1) (D) of the Social Security Act violates the due process clause of the Fifth Amendment.* Mr. JUSTICE BRENNAN announced the Court's decision in which JUSTICES WHITE, MARSHALL, and POWELL joined. MR. JUSTICE STEVENS concurred. MR. JUSTICE REHNQUIST filed a dissenting opinion in which MR. CHIEF JUSTICE BURGER and JUSTICES STEWART and BLACKMUN joined. MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, AND MR. JUSTICE POWELL joined. Under the Federal Old-Age, Survivors, and Disability Insurance Benefits program (OASDI) 42 U. S. C. §§ 401-431, survivors' benefits based on the earnings of a deceased husband covered by the Act are payable to his widow. Such benefits on the basis of the earnings of a deceased wife covered by the Act are payable to the widower, however, only if he "was receiving at least one-half of his support" from his deceased wife.' The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment. *Also on appeal before the Supreme Court at the time of the Goldfarb decision were three cases challenging the constitutionality of section 202(c) (1) (C) of the Social Security Act which imposed a similar support test for a man seeking husband's insurance benefits on the earnings record of his wife. On March 21, 1977 the Court, without an opinion, affirmed the judgments issued below in all three cases, thus finding that the support test imposed for husband's insurance benefits violated the Due Process Clause of the Fifth Amendment. See, Califano v. Silbowitz, 397 F. Supp. 862 (S.D. Fla. 1975), aff'd. 45 U. S.L.W. 3626 (March 22, 1977); Califano v. Jeblon, 399 F. Supp. 118 (D. Md. 1975), aff'd. 45 U.S.L.W. 3626 (March 22, 1977); Califano v. Abbott, Civil No. C74-194 (N.D. Ohio Feb. 12, 1976), aff'd, 45 U.S.L.W. 3626 (March 22, 1977). '42 U.S.C. § 402(f) (1), in pertinent part, provides: "The widower... of an individual who died a fully insured individual if such widower"(A) has not remarried, **(B) (i) has attained age 60, or (ii) has attained age 50, and is under a disability.... "(C) has filed application for widower's insurance benefits.... "(D)(i) was receiving at least one-half of his support... from such individual at the time of her death, or if such individual had a period of disability which did not end prior to the month in which she died, at the time such period began or at the time of her death, and filed proof of such support within two years after the date of such death...or (ii) was receiving at least one-half of his support... from such individual at the time she A three-judge District Court for the Eastern District of New York held that the different treatment of men and women mandated by § 402 (f) (1) (D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than is provided to male employees, 396 F. Supp. 308 (1975). We noted probable jurisdiction. 424 U. S. 906 (1976). We affirm. Mrs. Hannah Goldfarb worked as a secretary in the New York City public school system for almost 25 years until her death in 1968. During that entire time she paid in full all social security taxes required by the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101, 3126. She was survived by her husband, Leon Goldfarb, now age 72, a retired federal employee. Leon duly applied for widower's benefits. The application was denied with the explanation that (Cont.) "You do not qualify for a widower's benefit because you do not meet one of the requirements for such entitlement. This requirement is that you must have been receiving at least onehalf support from your wife when she died.""3 became entitled to old-age... insurance benefits..., and filed proof of such support within two years after the month in which she became entitled to such benefits... and, "(E) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of his deceased wife, "shall be entitled to a widower's insurance benefit...." Compare 42 U.S.C. § 402(e) (1), which provides, in pertinent part: "The widow... of an individual who dies a fully insured individual, if such widow... "(A) is not married, "(B) (i) has attained age 60, or (ii) has attained age 50... and is under a disability. "(C) (i) has filed application for widow's insurance benefits... and "(D) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of such deceased individual. "shall be entitled to a widow's insurance benefits...." 'The decision also applied to § 402(e) (1) (C), which imposes a dependency requirement on husbands of covered female wage earners applying for old-age benefits; wives applying for such benefits are not required to prove dependency, § 402(b). These gender-based classifications have been uniformly held to be unconstitutional. See Abbott v. Weinberger._____F. Supp., Civil No. C74-194 (ND) Ohio Feb. 12, 1976), appeal docketed sub nom. Mathews v. Abbott, No. 75-1643 (husband's old-age benefits); Coffin v. Secretary of Health, Education and Welfare, 400 F. Supp. 953 (DC 1975) (three-judge court), appeal docketed sub nom; Mathews v. Coffin, No. 75-791 (both husband's and widower's benefits); Jablon v. Secretary of Health, Education and Welfare, 399 F. Supp. 11S (Md. 1975) (three-judge court), appeal docketed suh nom Mathews v. Jablon No. 75-739 (Husband's Benefits); Silbowitz v. Secy. of Health, Education, and Welfare, 397 F. Supp. 862 (S.D. Fla. 1975). (Three-judge court), appeal docketed sub nom Mathews v. Silbowitz, No. 75-712 (husband's benefits). See also Kalina v. Railroad Retirement Board. _F. 2d No. 75-2256 (CA6 Sept. 13, 1976) (spouse's annuity under the Railroad Retirement Act. 46 U.S.C. § 234a(e) (3) (ii) ). 'Although Mr. Goldfarb did not pursue an administrative appeal of the denial of his application, appellant concedes that because the denial was based on his failure to meet a clear statutory requirement, further administrative review would have been futile and the initial denial was therefore "final" for purposes of the District Court's jurisdiction to review it under 42 U.S.C. § 405(g). See Weinberg v. Salfi, 422 U. S. 749, 764-767 (1975). In order for Mr. Goldfarb to have satisfied § 402(f) (1) (D), his wife would have to have been earning three times what he earned. According to Appellant's Brief, p. 25, "As a practical matter, orly husbands whose wives contribute 75 percent of the family income meet The District Court declared § 402 (f) (1) (D) unconstitutional primarily on the authority of Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), stating "[§ 402 (f) (1) (D)] and its application to this plaintiff, 'deprive Whatever may have been the ratio of contribution to family The gender-based distinction drawn by § 402(f) (1) (D)—burdening a widower but not a widow with the task of proving dependency upon the deceased spouse-presents an equal protection question indistinguishable from that decided in Weinberger v. Wiesenfeld, supra. That decision and the decision in Frontiero v. Richardson, supra, plainly require affirmance of the judgment of the District Court.* The statutes held unconstitutional in Frontiero provided increased quarters allowance and medical and dental benefits to a married male member of the uniformed armed services whether or not his wife in fact depended on him, while a married female service member could only receive the increased benefits if she in fact provided over one-half of her husband's support. To justify the classification, the Government argued that "as an empirical matter, wives in our society frequently are dependent on their husbands, while husbands are rarely dependent on their wives. Thus, ... Congress might reasonably have concluded that it (Cont.) [the dependency] test." That is because in order to meet the test, the wife must have provided for all of her own half of the family budget, plus half of her husband's share. For more elaborate descriptions of the dependency calculation, see 20 CFR § 404.350; Social Security Claims Manual, §§ 2625, 2628. See also Appellant's Brief, at 25-26, and n. 14; Appellee's Brief, at 5 n. 7. 'The dissent maintains that this sentence "overstates [the] relevance" of Wiesenfeld and Frontiero. It is sufficient to answer that the principal propositions argued by appellant and in the dissent-namely, the focus on discrimination between surviving, rather than insured, spouses; the reliance on Kahn v. Shevin. 416 U. S. 351 (1974); the argument that the presumption of female dependence is empirically supportable; and the emphasis on the special deference due to classifications in the Social Security Act-were all asserted and rejected in one or both of those cases as justifications for statutes substantially similar in effect to § 402(f) (1) (D). would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent on their husbands, while burdening female members with the task of establishing dependency in fact." 411 U. S., at 688-689. But Frontiero concluded that, by according such differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statute violated the Fifth Amendment. See Reed v. Reed, 404 U. S. 71, 76 (1971); Stanley v. Illinois, 405 U. S. 645, 656-657 (1972); cf. Schlesinger v. Ballard, 419 U. S. 498, 506-507 (1975). Weinberger v. Wiesenfeld, like the instant case, presented the question in the context of the OASDI program. There the Court held unconstitutional a provision that denied father's insurance benefits to surviving widowers with children in their care, while authorizing similar mother's benefits to similarly situated widows. Paula Wiesenfeld, the principal source of her family's support, and covered by the Act, died in childbirth, survived by the baby and her husband Stephen. Stephen applied for survivor's benefits for himself and his infant son. Benefits were allowed the baby under 42 U.S.C. § 402(d), but denied the father on the ground that "mother's benefits" under § 402(g) were available only to women. The Court reversed, holding that the gender-based distinction made by § 402(g) was "indistinguishable from that invalidated in Frontiero," 420 U. S., at 642, and therefore, while "... the notion that men are more likely than women to be the "Section 402(g) clearly operates, as did the statutes invali- Precisely the same reasoning condemns the gender-based distinction made by § 402(f) (1) (D) in this case. For that distinction too operates "to deprive women of protection for their families which men receive as a result of their employment": social security taxes were deducted from Hannah Goldfarb's salary during the quarter-century she worked as a secretary, yet, in consequence of §402(f)(1)(D), she also "not only failed to receive for her [spouse] the same protection which a similarly situated male worker would have received [for his spouse] but she also was deprived of a portion of her earnings in order to contribute to the fund out of which benefits would be paid to others." Wiesenfeld thus in escapably compels the conclusion reached by the District Court that the gender-based differentiation created by § 402(f) (1) (D)—that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men-is forbidden by the Constitution, at least when supported by no more substantial justification than "archaic and overboard" generalizations, Schlesinger v. Ballard, supra, 419 U. S., at 508, or "old notions," Stanton v. Stanton, 421 U. S. 7, 14 (1975), such as "assumptions as to dependency." Weinberger v. Wiesenfeld, supra, at 645, that are more consistent with "the role-typing society has long imposed." Stanton v. Stanton, supra, at 15, than with contemporary reality. Thus § 402(f) (1) (D) "[b]y providing dissimilar treatment for men and women who are similarly situated... violates the [Fifth Amendment]. Reed v. Reed, 404 U. S. 71, 77. . . ." Weinberger v. Wiesenfeld, supra, at 653. Appellant, however, would focus equal protection analysis not upon the discrimination against the covered wage earning female, but rather upon whether her surviving widower was unconstitutionally discriminated against by burdening him but not a surviving widow with proof of dependency. The gist of the argument is that, analyzed from the perspective of the widower, "... the denial of benefits reflected the congressional judgment that aged widowers as a class were sufficiently likely not to be dependent upon their wives, that it was appropriate to deny them benefits unless they were in fact dependent." Appellant's Brief, p. 12. But Weinberger v. Wiesenfeld rejected the virtually identical argument when appellant's predecessor argued that the statutory classification there attacked should be regarded from the perspective beneficiary and not from that of the covered wage earner. The Secretary's Brief in that case, p. 14, argued that "... the pattern of legislation reflects the considered judgment of Congress that the 'probable need' for financial assistance is greater in the case of a widow, with young children to maintain, than in the case of similarly situated males." The Court, however, analyzed the classification from the perspective of the wage earner and concluded that the classification was unconstitutional because "benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex." 420 U. S., at 647. Thus, contrary to appellant's insistence, Appellant's Brief, p. 12, Wiesenfeld is "dispositive here." From its inception, the social security system has been a program of social insurance. Covered employees and their employers pay taxes into a fund administered distinct from the general federal revenues to purchase protection against the economic consequences of old age, disability and death. But under § 402(f) (1) (D) female insureds received less protection for their spouses solely because of their sex. Mrs. Goldfarb worked and paid social security taxes for 25 years at the same rate as her male colleagues, but because of § 402(f) (1) (D) the insurance protec |