420 U.S. 636 (1975), argued 20 Jan. 1975, decided 19 Mar. 1975 by vote of 8 to 0; Brennan for the Court, Powell, joined by Burger, and Rehnquist concurring; Douglas not participating. Following its initial decision to void a gender classification as a denial of equal protection in Reed v. Reed (1971), the Supreme Court faced a dilemma. Many sex-based classifications benefited women but not men. Should the justices consider these “benign” classifications to be equivalent to those that disfavored women? Such laws could be said to foster stereotypes ultimately harmful to women, not to mention their discrimination against men. In Kahn v. Shevin (1974), the Court had badly splintered on this question in sustaining an old Florida law that granted a property tax exemption to widows but not to widowers.
In Weinberger, though, a unanimous eight-member Court overturned a provision of the federal Social Security Act that awarded survivor's benefits to widows but not to widowers. The Court achieved unanimity for two reasons. First, it treated the statute not as a benevolent aid for widows, as the government had urged, but rather as a denial of equality to the deceased wife: the Fifth Amendment's equal protection principle no more allowed Congress now “to deprive women of protection for their families which men receive as a result of their employment” (p. 645) than it had in the statute voided by Frontiero v. Richardson (1973). Second, no justice believed the classification satisfied even the minimum “rational basis” test for equal protection. The clear purpose of the benefits was to help the surviving parent to raise a child. For this goal, the law's gender distinction was “entirely irrational.”
G. Roger McDonald