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Survivor's Benefits
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass -- a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is that his eye may be opened by experience -- by experience."
Charles Dickens
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Califano

v.

Goldfarb
Survivor's Benefits

Justice Stevens Concurrence
March 2, 1977
Seal Of The Supreme Court
Excerpt:

I am persuaded that the relevant discrimination in this case is against surviving male spouses, rather than against deceased female wage earners.

I am therefore persuaded that this discrimination against a group of males is merely the accidental byproduct of a traditional way of thinking about females. I am also persuaded that a rule which effects an unequal distribution of economic benefits solely on the basis of sex is sufficiently questionable that "due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve [the] interest" put forward by the Government as its justification. See Hampton v. Mow Sun Wong. In my judgment, something more than accident is necessary to justify the disparate treatment of persons who have as strong a claim to equal treatment as do similarly situated surviving spouses.

But if my judgment is correct, what is to be said about Kahn v. Shevin. For that case involved a discrimination between surviving spouses which originated in 1885; a discrimination of that vintage cannot reasonably be supposed to have been motivated by a decision to repudiate the 19th century presumption that females are inferior to males. (10)

Footnote 10: This presumption was expressly recognized in the literature of the 19th century. It was this presumption that Mr. Bumble ridiculed when he disclaimed responsibility for his wife's misconduct. Because a part of his disclaimer is so well known, it may not be inappropriate to quote the entire passage:

"It was all Mrs. Bumble. She would do it," urged Mr. Bumble, first looking round to ascertain that his partner had left the room.

"That is no excuse," replied Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two in the eye of the law, for the law supposes that your wife acts under your direction."

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience." Charles Dickens, THE ADVENTURES OF OLIVER TWIST





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