Kahn v. Shevin

*357Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.'

The Court rejects widower Kahn’s- claim 'of denial of equal protection on the ground that the limitation in Fla. Stat. § 196.191 (7) (1971), which provides an annual $500 property tax exemption to widows, is a legislative classification that bears a fair and substantial relation to “the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden.” Ante, at 355. In my view, however, a legislative classification that distinguishes potential beneficiaries solely by reference to their gender-based status as widows or widowers, like classifications based upon race,1 alienage2 and national origin,3 must be subjected to close judicial scrutiny, because it focuses upon generally immutable characteristics over which individuals have little or .no control, and also because gender-based classifications too often have been inexcusably utilized to stereotype and stigmatize politically powerless segments of society. See Frontiero v. Richardson, 411 U. S. 677 (1973). The Court is not, therefore, free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, *358less drastic means. While, in my view, the statute serves a compelling governmental interest by “cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden," I think that the statute is invalid because the State's interest can be served equally well by a more narrowly drafted statute.

Gender-based glassifications cannot be sustained merely because they promote legitimate governmental interests, such as efficacious administration of government. Frontiero v. Richardson, supra; Reed v. Reed, 404 U. S. 71 (1971). For “when'-we enter the realm of 'strict judicial scrutiny,’ there can be no doubt that 'administrative convenience’ is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U. S. 618 (1969); Carrington v. Rash, 380 U. S. 89 (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands ‘dissimilar treatment for men and women who are . . . similarly situated,’ and therefore involves the ‘very kind of arbitrary legislative choice forbidden by the [Constitution] ... . .’’ Reed v. Reed, 404 U. S., at 77, 76.” Frontiero v. Richardson, supra, at 690. But Florida’s justification of § 196.191 (7) is not that it serves administrative convenience or helps to preserve the public fisc. Rather, the asserted justification is that § 196.191 (7) is an affirmative step toward alleviating the effécts of past economic discrimination against women.4

I agree that, in providing special benefits for a needy segment of society. long the victim of purposeful dis*359crimination and neglect, the statute serves the compelling. state interest of achieving equality for such groups.5 No one familiar with this country’s history of pervasive sex discrimination against women6 can doubt the need for remedial measures to correct the resulting economic imbalances. Indeed, the extent of the economic disparity between men and women is dramatized by the data cited by the Court, ante, at 353-354. By providing a property tax exemption for widows, § 196.191 (7) assists in reducing that economic disparity for a class of women particularly disadvantaged by the legacy of economic discrimination.7 In that circumstance, the purpose and effect of the suspect classification are ameliorative; the statute neither stigmatizes nor denigrates widowers not also benefited by the legislation. Moreover, inclusion of needy widowers within the class of beneficiaries would *360not further the State’s overriding interest in remedying the economic effects of past sex discrimination for needy victims of that discrimination. While doubtless some widowers,are in financial need, no one suggests that such need results from sex discrimination as in the case of widows.

The statute nevertheless fails to satisfy the requirements of equal protection, since the State has not borne its burden of proving that its compelling interest could not be achieved by a more precisely tailored statute or by use of feasible, less drastic means. * Section 196.191 (7) is plainly overinclusive, for the $500 property tax exemption may be obtained by a financially independent heiress as well as by an unemployed widow with dependent children. The State has offered nothing to explain why inclusion of widows of substantial economic means was necessary to advance the State’s interest in ameliorating the effects of past economic discrimination against women.

Moreover, alternative means of classification, narrowing the class of widow beneficiaries, appear readily available. The exemption is granted only to widows who complete and file with the tax assessor a form application establishing their status as widows. By merely redrafting that form to exclude widows who earn annual incomes, or possess assets, in excess of specified amounts, the State could readily narrow the class of beneficiaries to those widows for whom the effects of past economic discrimination against women have been a practical reality.

See Loving v. Virginia, 388 U. S. 1, 11 (1967); McLaughlin v. Florida, 379 U. S. 184, 191-192 (1964); Bolling v. Sharpe, 347 U. S. 497, 499 (1954).

See Graham v. Richardson, 403 U. S. 365, 372 (1971).

See Oyama v. California, 332 U. S. 633, 644-646 (1948); Korematsu v. United States, 323 U. S. 214, 216 (1944); Hirabayashi v. United States, 320 U. S. 81, 100 (1943).

Brief for Appellees 2A-25; Tr. of Oral Arg. 29-31. The State’s argument is supported’ by the ^Florida Supreme Court which held that thA object of § 196.191 (7) was to help ‘reduce the disparity between the economic . . . capabilities of a man and a woman ....’” 273 So. 2d 72, 73 (1973).

Significantly, the Florida statute does not compel the beneficiaries to accept the State’s aid. The taxpayer must file for the tax exemption. This case, therefore, does not require resolution of the.more difficult questions raised by remedial legislation which makes special treatment mandatory. See Note, Developments in' the Law — Equal Protection, 82 Harv. L. Rev. 1065, 1113-1117 (1969).

See Frontiero v. Richardson, 411 U. S. 677 (1973); Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 485 P. 2d 529 (1971). See generally The President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Justice (1970); L. Kanowitz, Women and the Law: The Unfinished Revolution (1969).

As noted by the Court, ante, at 353-354:

“[D]ata compiled by the Women’s Bureau of the United States Department of Labor show that in 1972 a woman working full time had a median income which was only 57.9% of the median for males — a figure actually six points lower .than had been achieved in 1955 .... The disparity is likely to be exacerbated for the widow. While the widower can usually continue in the occupation which preceded his spouse’s death, in many cases the widow will find herself suddenly forced into a job market with which she is- unfamiliar, and in which, because of her former .economic dependency, she will have fewer skills to offer.” (Footnotes omitted.)