Bowen v. Owens, 476 U.S. 340 (1986)

Author: Justice Marshall

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Bowen v. Owens, 476 U.S. 340 (1986)

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

The Court demonstrates an enviable ability to discern rationality where there is none. But the majority’s efforts to imagine plausible legislative scenarios cannot obscure the simple truth: there is absolutely no evidence that Congress had any rational basis for deciding in 1977 that surviving divorced spouses who remarried could not receive the same survivor’s benefits allowed to remarried widowed spouses. Because I believe that such a distinction between two groups treated similarly in other respects cannot survive the scrutiny required by the equal protection component of the Fifth Amendment’s Due Process Clause, I dissent.


In 1977, a Report of the House Committee on Ways and Means noted one drawback of the benefits scheme then in force:

Present law provides, in general, that the marriage (or remarriage) of a worker’s divorced or surviving spouse, parent, or child prevents or terminates entitlement to benefits based on the worker’s social security earnings record. For example, a widow who remarries before age 60 cannot get benefits based on her first husband’s earnings as long as she is married. If she remarries after age 60, the benefits based on the first husband’s social security are reduced or terminated; the widow gets either a wife’s benefit based on her first husband’s earnings (which is less than the widow’s benefit she was getting) or a wife’s benefit based on her current husband’s earnings (if he is a beneficiary), whichever is higher. Benefits are not payable to divorced spouses and young surviving spouses who are remarried.

Your committee is especially concerned about the effect of these provisions on older surviving spouses (and divorced spouses). Accordingly, your committee has recommended changes in the law which would eliminate marriage or remarriage as a factor affecting entitlement to benefits or benefit amounts. Specifically, under your committee’s bill, marriage or remarriage would not bar or terminate entitlement to benefits as a divorced spouse, surviving spouse . . . parent, or child, and remarriage would not cause any reduction in aged widow’s or widower’s insurance benefits.

H.R.Rep. No. 95-702, pt. 1, pp. 47-48 (1977).

The Senate version of this bill, however, did not address any of the House Committee’s concerns. And a subsequent Report tersely records the result of discussions between conferees from both Houses on this issue:

The Senate recedes, with an amendment that would retain only that part of the House-passed provisions that would prevent reduction in benefits for widows and widowers who remarry after age 60.

H.R.Conf.Rep. No. 95-837, p. 73 (1977). The compromise thus produced the Social Security provisions in effect between 1979 and 1983 that are the subject of this suit. Those provisions authorized payment of survivor’s benefits to widowed spouses who remarried after age 60, but not to similarly situated divorced widowed spouses.


As a historical matter, I suspect that the Court is right to characterize the distinction drawn by the 1977 Act between widowed spouses and surviving divorced spouses as the product of Congress’ decision to "take one step at a time," ante at 347, toward a program that would reflect "the needs of today’s society," H.R.Rep. No. 95-702, pt. 1, supra, at 4. However, under the Due Process Clause, even legislative classifications that result from compromise must bear at least a rational relationship to a legitimate governmental purpose. Had Congress accommodated the House’s reform goals with the Senate’s more conservative outlook in this area by passing a law giving benefits to only those remarried widowed spouses who had been born on odd-numbered days of the calendar, we would surely have to strike the provision down as irrational. The question here is thus whether Congress had any rational basis for taking the particular step that it chose to take in 1977.

Recognizing that it is not enough to label the 1977 provisions a waystation on the road to a sensible destination, the Court argues that the statutory distinction between surviving divorced spouses and widowed spouses was based upon a legislative judgment that widowed spouses were the more dependent of the two groups. The problem with the majority’s rationalization is that Congress never expressed it, or even hinted at it. The relevant legislative history contains absolutely no evidence to support the assumption that a divorced survivor is any less dependent than a widowed survivor, or to indicate that, in 1977, Congress was at all motivated by that assumption.

The majority attempts to fill the gap by assuming that Congress must have perceived a distinction between divorced spouses and widowed spouses because it required that the former, but not the latter, be married to the wage-earner for 10 years in order to receive benefits. That distinction can perhaps be taken as evidence that Congress believed that a divorced spouse who had been married to the wage-earner for less than 10 years was not sufficiently dependent on the wage-earner’s income to justify the extension of benefits. Yet it can hardly be taken as an indication that surviving divorced spouses who did satisfy the 10-year requirement were thought any less dependent than widowed spouses. Divorced spouses meeting that requirement were not treated differently from widowed spouses for any purpose other than the remarriage provisions, and there is no indication in the statute or legislative history that Congress ever attempted to articulate a difference between the two groups justifying different treatment.

When a legislative purpose can be suggested only by the ingenuity of a government lawyer litigating the constitutionality of a statute, a reviewing court may be presented not so much with a legislative policy choice, as its absence.

Schweiker v. Wilson, 450 U.S. 221, 244 (1981) (POWELL, J., dissenting); see United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 184 (1980) (BRENNAN, J., dissenting). While the absence of a clear statement of purposes need not doom a statute under rationality review, our task must always be to determine whether a particular rational purpose actually motivated the Legislature. See Fritz, supra, at188 (BRENNAN, J., dissenting). We have no indication in this case that Congress had any basis for drawing this line other than its desire to find a point of compromise between the two Houses. With the help of the Government’s lawyers, the Court has tried hard to come up with a hypothetical justification for Congress’ action. I do not think that is our job. I dissent.


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Chicago: Marshall, "Marshall, J., Dissenting," Bowen v. Owens, 476 U.S. 340 (1986) in 476 U.S. 340 476 U.S. 351–476 U.S. 354. Original Sources, accessed March 23, 2023,

MLA: Marshall. "Marshall, J., Dissenting." Bowen v. Owens, 476 U.S. 340 (1986), in 476 U.S. 340, pp. 476 U.S. 351–476 U.S. 354. Original Sources. 23 Mar. 2023.

Harvard: Marshall, 'Marshall, J., Dissenting' in Bowen v. Owens, 476 U.S. 340 (1986). cited in 1986, 476 U.S. 340, pp.476 U.S. 351–476 U.S. 354. Original Sources, retrieved 23 March 2023, from