I’ve been thinking about the opinion the US Supreme Court issued yesterday–the one about whether posthumously conceived children qualify for social security benefits. I did a fairly quick review of the opinion yesterday, but there’s surely more to say. There are layers of questions about what lines are drawn, who draws them, and whether they are permissible.
The children here argued that the line had been drawn in an impermissible way.
“Under the government’s interpretation . . . , posthumously conceived children are treated as an inferior subset of natural children who are ineligible for government benefits simply because of their date of birth and method of conception.”
Brief for Respondent 42–43. In other words, she asserted that drawing a line between children conceived before the death of the husband/sperm provider and those conceived after his death was impermissible.
Of course, line drawing is often what law is all about. Determining who gets (and who does not get) benefits is always about drawing lines. So the simple fact that lines are being drawn is not what makes the process open to question. The critical questions are about the basis on which the lines are drawn and (sometimes) about the authority of the line-drawer.
With regard to social security benefits, Congress and the Social Security Administration draws the lines. The law doesn’t require that these lines be perfect or even that they be the best possible set of lines. The law only requires that the lines be reasonable, non-arbitrary and that they not be drawn on certain impermissible discriminatory bases.
So for example, if SSA ruled out children who were born on Tuesdays, that would be arbitrary and no good. If they ruled out children born to people of a particular race or religion, that would be discriminatory and no good. But as long as they don’t draw lines that are arbitrary or discriminatory, it’s probably okay.
One more thing to keep in mind before we go back to the case: The SSA didn’t actually draw a clear line about actual eligibility of posthumously conceived children that is applied in all cases. What it did was to say that it will look to state law–the law of the state where the decedent lived at the time of his death. If under that state’s law the posthumously conceived child would be recognized for purposes of intestate succession, then the child is recognized as a child of the deceased for social security purposes.
In this case, Capato was a resident of Florida when he died and Florida doesn’t recognize posthumously conceived children, so the twins do not qualify for benefits. If instead, Capato had been a resident of California, the children would have qualified as long as they were conceived within two years of the parent’s death. (Look at page 12 in the US Supreme Court opinion for the discussion of this.)
Of course, this presents the familiar problem of law varying state to state. But for better or worse, this is a common state of affairs in our federalist system. As the Court says on page 11:
Reference to state law to determine an applicant’s status as a “child” is anything but anomalous. Quite the opposite. The [Social Security] Act commonly refers to state law on matters of family status.
It’s not that this choice (to rely on state law) isn’t open to question, but it is a question for another day, I fear.
S0 n0w back to the argument that drawing a line that disadvantaged posthumously conceived children was problematic. The Court unanimously rejected this argument. The opinion (written by Justice Ginsberg) is a nice instance of legal reasoning.
The paths to receipt of benefits laid out in the Act and regulations, we must not forget, proceed from Congress’ perception of the core purpose of the legislation. The aim was not to create a program “generally benefiting needy persons”; it was, more particularly, to “provide . . . dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of [theinsured’s] earnings.” Califano v. Jobst, 434 U. S. 47, 52 (1977). We have recognized that “where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death.”
In other words drawing the line at those who can inherit via intestacy is a reasonable choice. Not a perfect choice–but it doesn’t have to be. It only has to be reasonable. It’s not arbitrary, but rather it is related to the goal of the legislation.
Further, there’s nothing suspicious about drawing a line to exclude (some) posthumously conceived children.
No showing has been made that posthumously conceived children share the characteristics that prompted our skepticism of classifications disadvantaging children of unwed parents.
Since there is no reason to think that the ordinary political process of law-making cannot protect them posthumously conceived children, change must come from the legislatures and not from courts.
Finally, it’s worth taking a moment to appreciate the point raised in footnote 10.
Ironically, while drawing an analogy to the “illogical and unjust” discrimination children born out of wedlock encounter . . . respondent asks us to differentiate between children whose parents were married and children whose parents’ liasons were not blessed by clergy or the State. She would eliminate the intestacy test only for biological children of married parents. (Emphasis in original.)
Thus you can see, in the end, that it is all about line-drawing.