tion received by the males was broader than hers. Plainly then § 402(f)(1)(D) disadvantages women contributors to the social security system as compared to similarly situated men.' The section then "impermissibly discriminates against a female wage earner because it provides her family less protection than it provides that of a male wage earner, even though the family needs may be identical." 420 U. S., at 654-655 (POWELL, J., concurring). In a sense, of course, both the female wage earner and her surviving spouse are disadvantaged by operation of the statute, but this is because "Social Security is designed... for the protection of the family." 420 U. S., at 654. (JUSTICE POWELL concurring), and the section discriminates against one particular category of family- that in which the female spouse is a wage earner covered by social security.' Therefore decision of the equal protection challenge in this case cannot focus solely on the distinction drawn between widowers and widows but, as Wiesenfeld held, upon the gender-based discrimination against covered female wage earners as well. IV Appellant's emphasis upon the sex based distinction between widow and widower as recipients of benefits rather than that between covered female and covered male employees also emerges in his other arguments. These arguments have no merit. 'The disadvantage to the woman wage earner is even more pronounced in the case of old-age benefits, to which a similarly unequal dependency requirement applies. 42 U.S.C. §§ 402(b). (c) (1) (C). See n. 2, supra. In that situation, where the insured herself is still living, she is denied not only “the dignity of knowing [during her working career] that her social security tax would contribute to their joint welfare when the couple or one of them retired and her husband's welfare should she predecease him," Goldfarb v. Secretary of Health, Education and Welfare, 396 F. Supp. 308, 309 (EDNY 1975), but also the more tangible benefit of an increase in the income of the family unit of which she remains a part. 'See. e.g., H. R. Rep. No. 728, 76th Cong., 1st Sess., at 7 (1939), accompanying the bill that extended social security benefits for the first time beyond the covered wage earner himself. The Report emphasizes that the purpose of the amendments was "to afford more adequate protection to the family as a unit." (Emphasis supplied.) 'This is accepted by appellant and appellees. See, eg, Appellant's Brief, at 13 n. 2; Appellee's Brief, at 23; Tr. of Oral Arg., at 7. 'In any event, gender-based discriminations against men have been invalidated when they do not "serve important governmental objectives and [are not] substantially related to the achievement of those objectives." Craig v. Boren, — U. S. ——, (1976). Neither Kahn v. Shevin, 416 U. S. 351 (1974), nor Schlesinger v. Ballard, 419 U. S. 498 (1975), relied on by appellant, supports a contrary conclusion. The gender-based distinctions in the statutes involved in Kahn and Ballard were justified because the only discernible purpose of each was the permissible one of redressing our society's longstanding disparate treatment of women. Craig v. Boren, supra, at n. 6 (1976). But "the mere recitation of a benign, compensatory purpose is not an automatic shield that protects against any inquiry into the actual purposes underlying a legislative scheme." Weinberger v. Wiesenfeld, 420 U. S. 636, 648 (1975). That inquiry in this case demonstrates that § 402(f) (1) (D) has no such remedial purpose. See Part IV-B, infra. Moreover, the classifications challenged in Wiesenfeld and in this case rather than advantage women to compensate for past wrongs compounds those wrongs by penalizing women "who do work and whose earnings contribute significantly to their families' support." Wiesenfeld, supra, 420 U. S., at 645. A We accept as settled the proposition argued by appellant that Congress has wide latitude to create classifications that allocate noncontractural benefits under a social welfare program. Weinberger v. Salfi, 422 U. S. 749, 776-777 (1975); Flemming v. Nestor, 363 U. S. 603, 609-610 (1960). It is generally the case, as said in Flemming v. Nestor, 363 U. S., at 611, that "Particularly when we deal with a withholding of a noncon- See also Weinberger v. Salfi, supra, 422 U. S., at 768-770; Richardson v. Belcher, 404 U. S. 78, 81, 84 (1971); Dandridge v. Williams, 397 U. S. 471, 485-486 (1970). But this "does not, of course, immunize [social welfare legislation] from scrutiny under the Fifth Amendment." Richardson v. Belcher, supra, 404 U. S., at 81. The Social Security Act is permeated with provisions that draw lines in classifying those who are to receive benefits. Congressional decisions in this regard are entitled to deference as those of the institution charged under our scheme of government with the primary responsibility for making such judgments in light of competing policies and interests. But "[t]o withstand constitutional challenge, ... classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives." Craig v. Boren, U. S. (1976). Such classifications, however, have frequently been revealed on analysis to rest only upon "old notions" and "archaic and overboard" generalizations. Stanton v. Stanton, supra, 421 U. S., at 14; Schlesinger v. Ballard, supra, 419 U. S., at 508; cf. Mathews v. Lucas, 44 U. S. L. W. 5139, 5144 (1976), and so have been found to offend the prohibitions against denial of equal protection of the law. Reed v. Reed, supra; Frontiero v. Richardson, supra; Weinberger v. Wisenfeld, supra; Stanton v. Stanton, supra; Craig v. Boren, supra. See also Stanley v. Illinois, supra; Taylor v. Louisiana, 419 U. S. 522 (1975). 'Thus, justifications that suffice for non-gender-based classifications in the social welfare area do not necessarily justify gender discriminations. For example, Weinberger v. Salfi, 422 U. S. 749 (1975), sustained a discrimination dsigned to weed out collusive marriages without making case-by-case determinations between marriages of less than nine months' duration and longer ones on the ground that "While such a limitation doubtless proves in particular cases to be ‘under-inclusive' or ́over-inclusive' in light of its presumed purpose, it is nonetheless a widely accepted response to legitimate interests in administrative economy and certainty of coverage for those who meets its terms." Id., at 776. Yet administrative convenience and certainty of result have been found inadequate justifications for gender-based classifications. Reed v. Reed, 404 U. S. 71, 76 (1971); Frontiero ✓ Richardson, 411 U. S. 677, 690 (1973); Stanley v. Illinois, 405 U. S. 645, 656-657 (1972). Cf. Mathews v. Lucas, 44 U.S.L.W. 5139, 5143 (1976). Therefore, Wiesenfeld, 420 U. S., at 646-647, expressly rejected the argument of appellant's predecessor, relying on Flemming v. Nestor, that the "non-contractual" interest of a covered employee in future social security benefits precluded any claim of denial of equal protection. Rather, Wiesenfeld held that the fact that the interest is "non-contractual" does not mean that "a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment," nor does it "sanction differential protection for covered employees which is solely gender-based." 420 U. S., at 646. On the contrary, benefits "directly related to years worked and amount earned by a covered employee, and not to the needs of the beneficiaries directly," like the employment-related benefits in Frontiero, "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. B Appellant next argues that Frontiero and Wiesenfeld should be distinguished as involving statutes with different objectives than § 402(f) (1) (D). Rather than merely enacting presumptions designed to save the expense and trouble of determining which spouses are really dependent, providing benefits to all widows, but only to such widowers as prove dependency, § 402(f) (1) (D), it is argued, rationally defines different standards of eligibility because of the differing social welfare needs of widowers and widows. That is, the argument runs. Congress may reasonably have presumed that nondependent widows, who receive benefits, are needier than nondependent widowers, who do not, because of job discrimination against women (particularly older women), see Kahn v. Shevin, 416 U. S. 351, 353-354 (1974), and because they are more likely to have been more dependent on their spouses. See Wiesenfeld, supra, 420 U. S., at 645; Kahn v. Shevin, supra, 416 U. S., at 354 n. 7.10 But "inquiry into the actual purposes" of the discrimination, Wiesenfeld, supra, 420 U. S., at 648, proves the contrary. First, § 405(f) (1) (D) itself is phrased in terms of dependency, not need. Congress chose to award benefits not to widowers who could prove that they are needy, but to those who could prove that they had been dependent on their wives for more than one-half of their support. On the face of the statute, dependency, not need, is the criterion for inclusion. Moreover, the general scheme of OASDI shows that dependence on the covered wage earner is the critical factor in determining beneficiary categories." OASDI is intended to insure covered wage earners and 10 This argument is made for the first time in Appellant's Brief. The Jurisdictional Statement argued only the rationality of "extending to women the presumption of dependency" J. St., at 11. "Although presumed need has been a factor in determining the amounts of social security benefits, in addition to the extent of contributions made to the system, the primary determinants of the benefits received are the years worked and amount earned by the covered worker. 42 USC §§414, 415. See Weinberger v. Wiesenfeld. 420 U. S. 636, 647, and nn. 14, 15 (1975). In any event, need is not a requirement for inclusion in any beneficiary category, 42 USC § 402, and from the beginning was intended to be irrelevant to the right to receive benefits. See H. R. Rep. No. 615, 74th Cong., 1st Sess., at 1 (1935). their families against the economic and social impact on the family normally entailed by loss of the wage earner's income due to retirement, disability, or death, by providing benefits to replace the lost wages. Cf. Jiminez v. Weinberger, 417 U. S. 628, 633-634 (1974). Thus, benefits are not paid, as under other welfare programs, simply to categories of the population at large who need economic assistance, but only to members of the family of the insured wage earner. 12 Moreover, every family member other than a wife or widow is eligible for benefits only if a dependent of the covered wage earner. 13 This accords with the system's general purpose; one who was not dependent to some degree on the covered wage earner suffers no economic loss when the wage earner leaves the work force. Thus the overall statutory scheme makes actual dependency the general basis of eligibility for OASDI benefits, and the statute, in omitting that requirement for wives and widows, reflects only a presumption that they are ordinarily dependent. At all events, nothing whatever suggests a reasoned congressional judgment that nondependent widows should receive benefits because they are more likely to be needy than nondependent widowers. 14 Finally, the legislative history of § 402(f) (1) (D) refutes appellant's contention. The old age provisions of the original Social Security Act, 49 Stat. 622 (1935), provided pension benefits only to the wage earner himself, with a lump-sum payment to his estate under certain circumstances. Wives' and widows' benefits were first provided when coverage was extended to other family members in 1939. Social Security Act Amendments of 1939, 53 Stat. 1360, 1364-1366. The general purpose of the amendments was "to afford more adequate protection for the family as a unit." H. R. Rep. No. 728, 76th Cong., 1st Sess., at 7 (1939). (Emphasis supplied.) The House Ways and Means Committee criticized the old lump-sum payment because it "make[s] payments to the estate of a deceased person regardless of whether or not he leaves dependents." Ibid. The Social Security Board, which had initiated the amendments in a report transmitted by the President to Congress, recommended the adoption of survivors' benefits because "The payment of monthly benefits to widows and orphans, who are the two chief classes of dependent survivors, would furnish more significant protection than does the payment of lump-sum benefits." H. R. Doc. No. 110, 76th Cong., 1st Sess., 7 "Old-age and survivors' benefits may be paid to the insured wage earner himself, 42 U.SC. § 402(2); his spouse, while he is still alive, § 402(b), (c), or after his death, § 402(e), (f), (g); his children, § 402(d); and his parents, § 402(h). Dependency is a prerequisite to qualification for parents' benefits, § 402(h) (1) (B), children's benefits, § 402(d) (1) (C), husbands' benefits, § 402(c) (1) (C), and widowers' benefits, § 402(f) (1)(D). (Certain children are "deemed" dependent, § 402(d) (3). This presumption was upheld as sufficiently accurate to pass scrutiny on grounds of "administrative convenience," Mathews v. Lucas, 44 U. S. L. W. 5139 (1976).) "This payment essentially amounted to 3% % of the wage earner's earnings while covered, less the amount received as an old-age pension. Social Security Act § 203, 49 Stat. 623(1935) 15 16 (1939). In addition to recommending survivors' benefits, the Board suggested the extension of old-age pension benefits "for the aged dependent wife of the retired worker. Id., at 6. On the Senate floor, Senator Harrison, the principal proponent of the amendments, criticized the then existing system of benefits because under it "no regard is had as to whether [the covered wage earner] has a dependent wife, or whether he dies leaving a child, widow, or parents." 84 Cong. Rec. 8827 (1939). There is no indication whatever in any of the legislative history that Congress gave any attention to the specific case of nondependent widows, and found that they were in need of benefits despite their lack of dependency, in order to compensate them for disadvantages caused by sex discrimination. There is every indication that, as Wiesenfeld, supra, recognized, 420 U. S., at 644, "the framers of the Act legislated on the 'then generally accepted presumption that a man is responsible for the support of his wife and children.' D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973).""" Survivors' and old age benefits were not extended to husbands and widowers until 1950. 64 Stat. 483-485. The legislative history of this provision also demonstrates that Congress did not create the disparity between nondependent widows and widowers with a compensatory purpose. The impetus for change came from the Advisory Council on Social Security, which recommended benefits for "the aged, dependent husband... [and] widower." The purpose of this recommendation was [t]o equalize the protection given to the dependents of women and men" because "[u]nder the present program, insured women lack some of the rights which insured men can acquire." Advisory Council on Social Security. Recommendations for Social Security Legislation. S. Doc. No. 208, 80th Cong., 2d Sess., at 38 (1949), (Emphasis supplied.) It is clear from the Report that the Advisory Council assumed that the provision of benefits to dependent husbands and widowers was the equivalent of the provision of benefits to wives and widows under the previous statute, and not a lesser protection deliberately made because of lesser need. Although the original House Bill H. R. 6000 that became the Social Security Act Amendments of 1950 did not contain a provision for husbands' and widowers' benefits, the Senate Finance Committee added it, because "the committee believes that protection given to dependents of women and men should be made more comparable." S. Rep. No. See also remarks of Senator Harrison, 84 Cong. Rec. 8827 (1939). To the extent that this statement indicates that Congress found widows and orphans needier than other de pendents, it may support a discrimination between dependent widows and dependent widowers, but it certainly demonstrates a congressional assumption that widows are de pendent, rather than an intention to aid nondependent widows because of a finding that they are needier than nondependent widowers. See also Final Report of the Advisory Council on Social Security at 24 (1938): "The inadequacy of the benefits payable during the early years of the old-age insurance program is more marked where the benefits must support not only the annuitant himself, but also his wife." "See also the further excerpts from and discussion of the legislative history in Wiesenfeld, 420 U. S. at 644 n. 13. |