(concurring in result).
This is not an insurance contract between O’Neill and Blue Cross; it is between Blue Cross and the Board of Trustees of the South Dakota Retirement System. O’Neill is merely a “member” of the group as defined in SDCL 3-12A-1(9) and by statute he has the option to have his dependents covered by the plan. O’Neill elected to have his dependents covered. Subsection (6) of the statute, in pertinent part, includes O’Neill’s dependent as “an employee’s spouse and any unmarried child (a) under the age of nineteen years .... ”
The statute makes no explicit reference to either legitimate or illegitimate children and the policy cannot be drawn any narrower than the statutory authorization. Indeed, in this case, the policy is probably drawn more broadly than the statute in that it covers foster children. I do not distinguish this situation from cases involving workers’ compensation or retirement benefit plans. In those cases, the United States Supreme Court has held that although classifications based on illegitimacy are not subject to “strict scrutiny,” they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). While not advanced as a constitutional argument, appellant suggests that it would be against public policy to extend a full complement of legal rights to unmarried cohabitants. This argument was rejected by the United States Supreme Court in Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).
Because I am not prepared to say that I would agree with the reasoning of the majority opinion on the coverage issue, were this a strictly private contract of insurance between Blue Cross and O’Neill, I therefore concur in the result for the reasons stated. I concur with the majority opinion on the remaining issues.