dissenting:
The issue in these appeals is whether the “dependency” requirement of § 202(d) of the Social Security Act, 42 U.S.C. § 402(d) (1976), has been met by the several claimants who are parties to these two actions. Regrettably, the majority misconstrues the requirements imposed by the Act and, in doing so, denies benefits to four minor children, all of whom are conceded to be the natural, albeit illegitimate, children of Odes Watson or Talmadge Meadows, both covered wage earners. What the Court fails to recognize is that “visiting this condemnation on the head of an infant is illogical and unjust.” Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972). Finding this result unsupported in law and unconscionable in fact, I dissent.
I
Title II of the Social Security Act of 1935, as amended, (Act) 42 U.S.C. § 401 et seq. (1976), authorizes the payment of benefits to covered wage earners, or their dependents, on account of the death, disability, or old age of the insured individual. A brief survey of the statutory provisions quickly reveals, however, that “dependency,” as used in the Act, is a term of art. One may be a “dependent” only if one is the spouse,1 parent,2 or child3 of the insured individual. Others, while they actually may have been dependent in a real economic sense, nonetheless do not qualify for benefits.
*763Moreover, the class of children who are deemed “dependent” upon the insured individual is not necessarily identical to those who actually are dependent. Instead, for reasons of administrative convenience, Congress has established a series of alternative tests, satisfaction of any one of which automatically results in a finding of dependency. What the majority overlooks, however, is that six of these seven tests, including § 216(h)(2)(A), the key provision in issue here, do not contain any requirement that the applicant-child actually have been supported by the deceased parent.
This point, while basic, is crucial to an understanding of the Court’s error today. Instead of determining squarely whether the appellants qualify under § 216(h)(2)(A), the Court mistakenly implies that an actual showing of dependency is necessary to qualify for survivors’ benefits under this provision. See Opinion of the Court, supra, at 757-758, 760-761, 761-762. Section 216 (h)(2)(A), however, like all but one other test conceived by Congress for measuring “dependency” requires no such showing on its face, and to my knowledge, has never before been so construed by any court.
In pertinent part, this provision states:
In determining whether an applicant is the child ... of a fully or currently insured individual for purposes of this sub-chapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual . . . was domiciled at the time of his death.... Applicants who according to such law would have the same status relative to taking intestate personal property as a child shall be deemed such.
42 U.S.C. § 416(h)(2)(A) (1976). Although its legislative history is sparse, it appears that Congress concluded that this provision, requiring reference to State laws of intestate succession, was the most advisable method by which the Secretary could determine who was a child. Since family status and the legal effect of family relationships traditionally have been the province of the States, it follows that deference to State rules of decision would be more sensible than an effort to develop a uniform Federal rule.
At the same time, it must be understood that our role in interpreting the State laws incorporated into the Act is a distinctly Federal' one. While the rule of decision originates in the States, and while we are bound by their interpretations of who can and cannot inherit in intestacy,4 we nevertheless sit as a Federal court reviewing the actions of the Secretary of Health and Human Services, a Federal official, and therefore render a Federal decision.5 Our constructions of the State laws, accordingly, have no effect on whether a child actually is entitled to inherit his father’s intestate personal property. Rather, our mission is to determine, solely for purposes of the Social Security Act, whether a State court would decide if these plaintiffs would be entitled to share in the inheritance of their fathers’ intestate personalty.
*764In this context, finally, the Court today seems to overlook that not only we, as a Federal Court, but also the courts of Mississippi and West Virginia are bound by the Supremacy Clause, see U.S.Const. art. 6, which requires the Constitution to take precedence over all laws, Federal and State. Thus a State court, construing its intestate succession statute, must consider whether its law violated the Equal Protection Clause of the Fourteenth Amendment and if it finds its law to be repugnant to the Constitution, then it may not let it remain as an obstacle to the children’s inheritance. In short, if the State court must determine that its law is unconstitutional, it must permit the illegitimate children to inherit in the same way as legitimate children.6
II
Approaching the instant controversy in this light, I am convinced that the laws of Mississippi7 and West Virginia8 in issue in this proceeding are unconstitutional and that the courts of those States would so hold. Such a holding establishes that the children, in fact, are entitled to inherit under State law and a fortiori, that the Secretary erred in denying them benefits they are thus entitled to receive under § 202(d).
In Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d 31 (1977), the Supreme Court invalidated an Illinois statute which permitted an illegitimate child to share in the inheritance of his mother’s intestate estate, but restricted inheritance from the father to cases in which the father subsequently married the mother and acknowledged the child as his own. Legitimate children, by contrast, were entitled to inherit from both parents without limitation.
Although the Court refrained from holding that legitimacy is a suspect classification, it did indicate that the scrutiny of a State’s interest in, and purpose for, the classification “is not a toothless one.” Id. at 767, 97 S.Ct. at 1463, quoting Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1970). On the authority of Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), the Court rejected the proffered interest in promoting licit family relationships, noting that disadvantages heaped upon the innocent offspring of an illicit coupling bore little, if any, relationship to the asserted State interest. In addition, the Court was unpersuaded by other arguments advanced by the State, including its generally legitimate interest in providing for an orderly disposition of property at death. The defect in the Illinois scheme, observed Justice Powell, was that it failed to distinguish between categories of illegitimate *765children. In broadly denying illegitimates the right to inherit from their fathers, the statute was found to extend far beyond a permissible purpose. Finally, the Court also rejected the related claims that the decedent could have avoided this problem by leaving a will and that in the absence of a will, the presumed intent of the decedent was to leave his property in accordance with the statutory scheme.9 Thus finding no justification for the discrimination between legitimate and illegitimate children, the statute was held violative of the Equal Protection Clause.
One year later, the Court upheld a New York statute which did not treat legitimate and illegitimate children identically. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). The statute in Lalli provided that a bastard could inherit from his father if a court of competent jurisdiction, acting during the lifetime of the father, had entered an order of filiation. As a further limitation, the statute required the proceeding to be instituted either during the mother’s pregnancy or within two years of the child’s birth. Id. at 262, 99 S.Ct. at 521. Because the State has a legitimate and substantial interest in the orderly disposition of its residents’ property, and because special problems of proof arise in establishing paternity, particularly after the father’s death, the Court concluded that the New York statute was an appropriate constitutional vehicle for satisfying the State’s interests.
Despite the protestations of four dissenting Justices, see id. at 277, 99 S.Ct. at 529 (Brennan, J., dissenting), the Court found New York’s statute distinguishable from the one in issue in Trimble. Rather than erecting an absolute bar to inheritance the Court noted that New York had followed a more flexible course, thus permitting many illegitimate children to escape the absolute bar. In addition, the Court observed that the New York statute was related directly to the primary goal of providing for an orderly disposition of property, and that the statutory standard dealt only with the practical problems of proof. Finally, the Court noted that the marital status of the parents was irrelevant. Id. at 267, 99 S.Ct. at 524.
Reading both Trimble and Lalli together, it is clear that the States do have sufficient grounds to warrant imposing somewhat higher burdens on illegitimate children. These interests, however, have bounds. While a State may require particularized proof of paternity in order to prevent spurious claims to the estate of a male decedent, it may not erect an absolute bar. Nor may it follow a course in which the child — who all recognize has done no wrong — is powerless to act in furtherance of his interests in establishing paternity.
I therefore believe that the statutes now before us share the defects described by the Court in Trimble and that if asked today, the courts in both West Virginia and Mississippi, would be obliged to find them unconstitutional. Mississippi’s statute10 permits illegitimate children to inherit from their father in two instances. Either the parents can subsequently marry and the father can acknowledge the child as his own, Miss.Code Ann. § 91-1-15, or a court may issue a decree of paternity and further order that the child be entitled to inherit from his father. This latter option may be exer*766cised, however, only if the father is unmarried and if the parents have the capacity to marry under Mississippi law. Id. §§ 93-9-9, 93-9-29(5). In accordance with West Virginia law, an illegitimate child may inherit only if his parents intermarry.
No discussion of Mississippi’s first alternative is necessary. In its material terms, it is identical to the statute struck down in Trimble and thus is plainly unconstitutional. Mississippi’s second alternative, and West Virginia’s provision, also must fall. Neither statute provides a reasonable ground upon which an illegitimate child may base a claim to a share of his father’s intestate estate. Instead, a barrier is erected which may be surmounted only by the parents having the capacity to marry and/or subsequent inter-marriage — events over which the child has no control. Moreover, in erecting this bar, it is evident that the State’s interest in enforcing its statute is more attuned to the desire to deter illicit activity by the parents — which is pursued illogically by visiting their sins upon the innocent child — than to a legitimate, substantial interest in providing for the orderly disposition of its decedents’ property as was intended under the New York statute. Finding no proper State interest served by these legislative provisions, the conclusion that they are unconstitutional is compelled.
Ill
In view of the instant majority’s assertions that a consideration of the unconstitutionality of the State law is inconsistent with Congress’ design in enacting § 216(h)(2)(A), I feel constrained to point out that “the primary purpose of the contested Social Security scheme is to provide support for dependents of a [dead or] disabled wage earner.” Jiminez v. Weinberger, 417 U.S. 628, 634, 94 S.Ct. 2496, 2500, 41 L.Ed.2d 363 (1974). Congress utilized this scheme requiring reference to State law simply because it believed that it would be an effective, facile way of determining who was “dependent” and thus entitled to benefits. There has never been a desire evinced by Congress to erect barriers blocking children from receipt of benefits on account of their parents’ death or disability. Indeed, in the 1965 Social Security amendments, Congress explicitly chose to add additional provisions, apart from § 216(h)(2)(A), in order to make certain that the class of children likely to be dependents was as broad as necessary to encompass all legitimate claims.11
Thus it is evident that the majority’s decision today actually frustrates the congressional purpose.12 Rather than continuing to penalize the children for their parents’ actions, I would hold the State statutes, as incorporated into Federal law, unconstitutional and direct the Secretary to honor their claims.
. 42 U.S.C. §§ 402(b), 402(c), 402(e), 402(f) (1976).
. Id. §§ 402(g), 402(h).
. Id. § 402(d).
. It should be noted, however, that where, as here, State law is incorporated so as to supply a Federal rule of decision, Federal courts are bound by the State rule, or the State interpretation, only “so long as it is plain . .. that the State rules do not effect a discrimination against the Government, or patently run counter to the terms of the Federal legislation.” Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 210, 66 S.Ct. 992, 995, 90 L.Ed. 1172 (1946). As discussed in Part III, infra, I believe that the Court’s holding foreclosing consideration of the constitutionality of the State statutes is inimical to the plain Federal policy embodied in the Act.-
. In Kasey v. Richardson, 462 F.2d 757 (4th Cir. 1972), we made this point convincingly when we noted that the Secretary is not bound, strictly speaking, by a State court decision expressly holding that an illegitimate child was entitled to inherit property from her putative father. Id. at 761. It is the Secretary’s duty under § 216(h)(2)(A) to compile a record and make an independent determination of the substance of the State law as it would be construed in the State courts. Still, the Secretary cannot ignore compelling evidence which formed the basis of the State decision, at least provided that such evidence properly was before the Secretary, and otherwise was uncontradicted.
. This is not to say, of course, that the State may not then amend its law to make it consistent with the Constitution. Moreover, in doing so, the State effectively may deny some children the right to inherit if they cannot meet the new, constitutional burden imposed on them by the legislature. As long as the statute is unconstitutional, however, the State courts, and we because of incorporation, have no choice but to permit inheritance, or in the Social Security context, to order the award of benefits. See Mathews v. Lucas, 427 U.S. 495, 515 n.18, 96 S.Ct. 2755, 2767 n.18, 49 L.Ed.2d 651 (1976); Fulton v. Harris, 658 F.2d 641 (8th Cir. 1981); White v. Harris, 504 F.Supp. 153 (C.D.Ill.1980); Ramon v. Califano, 493 F.Supp. 158 (W.D.Tex. 1980); Allen v. Califano, 456 F.Supp. 168 (D.Md.1978).
. The Mississippi statutes provided as follows;
If any man beget a child or children by a woman whom he shall afterward marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be legitimate and capable in law to inherit and transmit inheritance as if born in wedlock.
Miss.Code Ann. § 91-1-15.
The court, on the date of the entering of such order of paternity, if the father of the child is unmarried and could lawfully have consummated a marriage with the mother of the child under the laws of this state, may adjudicate in such order that the child shall inherit from the father as could a natural child of the father under the statutes of descent and distribution.
Id. § 93-9-29(5).
. The West Virginia statute states:
If a man, having had a child or children by a woman, shall afterwards intermarry with her, such child or children, or their descendants, shall be deemed legitimate.
W.Va.Code § 42-1-6.
. That the decedent could have left a will was of no constitutional significance, said the Court. Such a course of action by the decedent would eliminate the reason for the challenge to the statute, but the existence of such an alternative is of no use in demonstrating the constitutionality of the intestate succession scheme. 430 U.S. at 773-74, 97 S.Ct. at 1466-1467. The argument as to the presumed intent of the decedent was rejected on the ground that this asserted purpose, in fact, was not a purpose of the Illinois legislature. Id. at 775-76, 97 S.Ct. at 1467-1468.
. Since this litigation began, Mississippi amended its statute in a way which arguably permits the Jones children to qualify as intestate heirs. Because of this amendment, which appears to be retroactive, I would remand No. 81-1080 for reconsideration by the Secretary. . The majority, however, limits their discussion to the old statute and to the extent this statute is found to be the basis for denying the children benefits, I would hold it unconstitutional.
. See S.Rep.No.404, 89th Cong., 1st Sess. 106-07, reprinted in [1965] U.S.Code Cong. & Ad.News 1943, 2049-50.
. This course is all the more regrettable in light of the Supreme Court’s recent comments in Ridgway v. Ridgway, - U.S. -, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981). The Court, acknowledging that Federal law plays a limited role in domestic relations, said nevertheless that “this Court, even in that area, has not hesitated to protect, under the Supremacy Clause, rights and expectancies established by federal law against the operation of state law, or to prevent the frustration and erosion of the congressional policy embodied in the federal rights.” Id. at-, 102 S.Ct. at 54. By the same token, these patently unconstitutional State intestate succession schemes ought not to be used to subvert Congress’ expressed policy to accord benefits to the Jones children and Marcia Simms.