UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
June 17, 1975
Leon GOLDFARB, Plaintiff,
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant
Moore, Circuit Judge, concurs in separate opinion.
MEMORANDUM AND ORDER
Seventy year old Leon Goldfarb applied for social security survivor's benefits after the death of his wife. She had been paying social security taxes for some twenty-five years. His employment had not been covered by social security. Mr. Goldfarb's claim was denied for the reason that,
"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 one half support from your wife when she died."
It is conceded that had the gender of these spouses been reversed, the plaintiff would have been granted social security benefits. A female need not show "at least one half support from" the deceased spouse. See 42 U.S.C § 402(b), (c)(1)(C), (e), (f)(1)(D). Thus, the statute and its application to this plaintiff, "deprive women of protection for their families which men receive as a result of their employment." Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 1232, 43 L. Ed. 2d 514 (1975). See also Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973).
This case is controlled by Wiesenfeld :
"She not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency . . ., the Constitution also forbids the gender-based differentiation that results in the efforts of women workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men."
420 U.S. at 645, 95 S. Ct. at 1232, 43 L. Ed. 2d at 523.
Whatever may have been the ratio of contribution to family expenses of the Goldfarbs while they both worked, Mrs. Goldfarb was entitled to the dignity of knowing that her social security tax would contribute to their joint welfare when the couple or one of them retired and to her husband's welfare should she predecease him. She paid taxes at the same rate as men and there is not the slightest scintilla of support for the proposition that working women are less concerned about their spouses' welfare in old age than are men. The government has failed to justify this gender-based discrimination.
Plaintiff's request for a declaratory judgment that 42 U.S.C § 402(b), (c)(1)(C), (e), (f)(1)(D), is unconstitutional insofar as it discriminates against widowers on the basis of sex must be granted. The application for certification as a class is denied. See Wiesenfeld v. Secretary of Health, Education and Welfare, 367 F. Supp. 981, 986-987 (D.N.J.1973), aff'd sub nom., Weinberger v. Wiesenfeld, - 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975). The matter is remanded to the Secretary of Health, Education and Welfare who is directed to make payments for the period during which Mr. Goldfarb would have been qualified to receive benefits but for the discrimination against widowers now held to be unconstitutional.
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