Weinberger v. Wiesenfeld

Mr. Justice Rehnquist,

concurring in the result.

Part III-B of the Court's opinion contains a thorough examination of the legislative history and statutory context which define the role and purpose of § 402 (g). I believe the Court's examination convincingly demonstrates that the only purpose of § 402 (g) is to make it possible for children of deceased contributing workers to have the personal care and attention of a surviving parent, should that parent desire to remain in the home with the child. Moreover, the Court’s opinion establishes that the Government’s proffered legislative purpose is so totally at odds with the context and history of § 402 (g) that it cannot serve as a basis for judging whether the statutory distinction between men and women rationally serves a valid legislative objective.

This being the case, I see no necessity for reaching the issue of whether the statute's purported discrimination against female workers violates the Fifth Amendment as applied in Frontiero v. Richardson, 411 U. S. 677 (1973). I would simply conclude, as does the Court in Part III-B of its opinion, that the restriction of § 402 (g) benefits to surviving mothers does not rationally serve any valid legislative purpose, including that for which § 402 (g) was obviously designed. This is so because it is irrational to distinguish between mothers and fathers when the sole question is whether a child of a deceased contributing worker should have the opportunity to receive the full-time attention of the only parent remaining to it. To my mind, that should be the end of the matter. I therefore concur in the result.