Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256 (1979)

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.

Although acknowledging that, in some circumstances, discriminatory intent may be inferred from the inevitable or foreseeable impact of a statute, ante at 279 n. 25, the Court concludes that no such intent has been established here. I cannot agree. In my judgment, Massachusetts’ choice of an absolute veterans’ preference system evinces purposeful gender-based discrimination. And because the statutory scheme bears no substantial relationship to a legitimate governmental objective, it cannot withstand scrutiny under the Equal Protection Clause.

I

The District Court found that the "prime objective" of the Massachusetts veterans’ preference statute, Mass.Gen.Laws Ann., ch. 31, § 23, was to benefit individuals with prior military service. Anthony v. Commonwealth, 415 F.Supp. 485, 497 (Mass.1976). See Feeney v. Massachusetts, 451 F.Supp. 143, 145 (Mass.1978). Under the Court’s analysis, this factual determination

necessarily compels the conclusion that the State intended nothing more than to prefer "veterans." Given this finding, simple logic suggests than an intent to exclude women from significant public jobs was not at work in this law.

Ante at 277. I find the Court’s logic neither simple nor compelling.

That a legislature seeks to advantage one group does not, as a matter of logic or of common sense, exclude the possibility that it also intends to disadvantage another. Individuals in general, and lawmakers in particular, frequently act for a variety of reasons. As this Court recognized in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977),

[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern.

Absent an omniscience not commonly attributed to the judiciary, it will often be impossible to ascertain the sole or even dominant purpose of a given statute. See McGinnis v. Royster, 410 U.S. 263, 276-277 (1973); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1214 (1970). Thus, the critical constitutional inquiry is not whether an illicit consideration was the primary or but-for cause of a decision, but rather whether it had an appreciable role in shaping a given legislative enactment. Where there is "proof that a discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no longer justified." Arlington Heights v. Metropolitan Housing Dev. Corp., supra at 265-266 (emphasis added).

Moreover, since reliable evidence of subjective intentions is seldom obtainable, resort to inference based on objective factors is generally unavoidable. See Beer v. United States, 425 U.S. 130, 148-149, n. 4 (1976) (MARSHALL, J., dissenting); cf. Palmer v. Thompson, 403 U.S. 217, 224-225 (1971); United States v. O’Brien, 391 U.S. 367, 383-384 (1968). To discern the purposes underlying facially neutral policies, this Court has therefore considered the degree, inevitability, and foreseeability of any disproportionate impact, as well as the alternatives reasonably available. See Monroe v. Board of Commissioners, 391 U.S. 450, 459 (1968); Goss v. Board of Education, 373 U.S. 683, 688-689 (1963); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Griffin v. Illinois, 351 U.S. 12, 17 n. 11 (1956). Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

In the instant case, the impact of the Massachusetts statute on women is undisputed. Any veteran with a passing grade on the civil service exam must be placed ahead of a nonveteran, regardless of their respective scores. The District Court found that, as a practical matter, this preference supplants test results as the determinant of upper level civil service appointments. 415 F.Supp. at 488-489. Because less than 2% of the women in Massachusetts are veterans, the absolute preference formula has rendered desirable state civil service employment an almost exclusively male prerogative. 451 F.Supp. at 151 (Campbell, J., concurring).

As the District Court recognized, this consequence follows foreseeably, indeed inexorably, from the long history of policies severely limiting women’s participation in the military.{1} Although neutral in form, the statute is anything but neutral in application. It inescapably reserves a major sector of public employment to "an already established class which, as a matter of historical fact, is 98% male." Ibid. Where the foreseeable impact of a facially neutral policy is so disproportionate, the burden should rest on the State to establish that sex-based considerations played no part in the choice of the particular legislative scheme. Cf. Castaneda v. Partida, 430 U.S. 482 (1977); Washington v. Davis, 426 U.S. 229, 241 (1976); Alexander v. Louisiana, 405 U.S. 625, 632 (1972); see generally Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup.Ct.Rev. 95, 123.

Clearly, that burden was not sustained here. The legislative history of the statute reflects the Commonwealth’s patent appreciation of the impact the preference system would have on women, and an equally evident desire to mitigate that impact only with respect to certain traditionally female occupations. Until 1971, the statute and implementing civil service regulations exempted from operation of the preference any job requisitions "especially calling for women." 1954 Mass. Acts, ch. 627, § 5. See also 1896 Mass. Acts, ch. 517, § 6; 1919 Mass. Acts, ch. 150, § 2; 1945 Mass. Acts, ch. 725, § 2(e); 1965 Mass. Acts, ch. 53; ante at 266 nn. 13, 14. In practice, this exemption, coupled with the absolute preference for veterans, has created a gender-based civil service hierarchy, with women occupying low-grade clerical and secretarial jobs and men holding more responsible and remunerative positions. See 415 F.Supp. at 488; 451 F.Supp. at 148 n. 9.

Thus, for over 70 years, the Commonwealth has maintained, as an integral part of its veterans’ preference system, an exemption relegating female civil service applicants to occupations traditionally filled by women. Such a statutory scheme both reflects and perpetuates precisely the kind of archaic assumptions about women’s roles which we have previously held invalid. See Orr v. Orr, 440 U.S. 268 (1979); Califano v. Goldfarb, 430 U.S. 199, 210-211 (1977); Stanton v. Stanton, 421 U.S. 7, 14 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975). Particularly when viewed against the range of less discriminatory alternatives available to assist veterans,{2} Massachusetts’ choice of a formula that so severely restricts public employment opportunities for women cannot reasonably be thought gender-neutral. Cf. Albemarle Paper Co. v. Moody, supra, at 425. The Court’s conclusion to the contrary -- that "nothing in the record" evinces a "collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service," ante at 279 -- displays a singularly myopic view of the facts established below.{3}

II

To survive challenge under the Equal Protection Clause, statutes reflecting gender-based discrimination must be substantially related to the achievement of important governmental objectives. See Califano v. Webster, 430 U.S. 313, 316-317 (1977); Craig v. Boren, 429 U.S. 190, 197 (1976); Reed v. Reed, 404 U.S. 71, 76 (1971). Appellants here advance three interests in support of the absolute preference system: (1) assisting veterans in their readjustment to civilian life; (2) encouraging military enlistment; and (3) rewarding those who have served their country. Brief for Appellants 24. Although each of those goals is unquestionably legitimate, the "mere recitation of a benign, compensatory purpose" cannot, of itself, insulate legislative classifications from constitutional scrutiny. Weinberger v. Wiesenfeld, supra at 648. And in this case, the Commonwealth has failed to establish a sufficient relationship between its objectives and the means chosen to effectuate them.

With respect to the first interest, facilitating veterans’ transition to civilian status, the statute is plainly overinclusive. Cf. Trimble v. Gordon, 430 U.S. 762, 770-772 (1977); Jimenez v. Weinberger, 417 U.S. 628, 637 (1974). By conferring a permanent preference, the legislation allows veterans to invoke their advantage repeatedly, without regard to their date of discharge. As the record demonstrates, a substantial majority of those currently enjoying the benefits of the system are not recently discharged veterans in need of readjustment assistance.{4}

Nor is the Commonwealth’s second asserted interest, encouraging military service, a plausible justification for this legislative scheme. In its original and subsequent reenactments, the statute extended benefits retroactively to veterans who had served during a prior specified period. See ante at 265-267. If the Commonwealth’s "actual purpose" is to induce enlistment, this legislative design is hardly well suited to that end. See Califano v. Webster, supra at 317; Weinberger v. Wiesenfeld, supra at 648. For I am unwilling to assume what appellants made no effort to prove, that the possibility of obtaining an ex post facto civil service preference significantly influenced the enlistment decisions of Massachusetts residents. Moreover, even if such influence could be presumed, the statute is still grossly overinclusive, in that it bestows benefits on men drafted as well as those who volunteered.

Finally, the Commonwealth’s third interest, rewarding veterans, does not "adequately justify the salient features" of this preference system. Craig v. Boren, supra at 202-203. See Orr v. Orr, supra at 281. Where a particular statutory scheme visits substantial hardship on a class long subject to discrimination, the legislation cannot be sustained unless "`carefully tuned to alternative considerations.’" Trimble v. Gordon, supra at 772. See Caban v. Mohammed, 441 U.S. 380, 392-393, n. 13 (1979); Mathews v. Lucas, 427 U.S. 495 (1976). Here, there are a wide variety of less discriminatory means by which Massachusetts could effect its compensatory purposes. For example, a point preference system, such as that maintained by many States and the Federal Government,seen. 2, supra, or an absolute preference for a limited duration, would reward veterans without excluding all qualified women from upper level civil service positions. Apart from public employment, the Commonwealth, can, and does, afford assistance to veterans in various ways, including tax abatements, educational subsidies, and special programs for needy veterans. See Mass.Gen.Laws Ann., ch. 59, § 5, Fifth (West Supp. 1979); Mass.Gen.Laws Ann., ch. 69, §§ 7, 7B (West Supp. 1979); and Mass.Gen.Laws Ann., chs. 115, 115A (West 1969 and Supp. 1978). Unlike these and similar benefits, the costs of which are distributed across the taxpaying public generally, the Massachusetts statute exacts a substantial price from a discrete group of individuals who have long been subject to employment discrimination,{5} and who, "because of circumstances totally beyond their control, have [had] little if any chance of becoming members of the preferred class." 415 F.Supp. at 499. Seen. 1, supra.

In its present unqualified form, the veterans’ preference statute precludes all but a small fraction of Massachusetts women from obtaining any civil service position also of interest to men. See 451 F.Supp. at 151 (Campbell, J., concurring). Given the range of alternatives available, this degree of preference is not constitutionally permissible.

I would affirm the judgment of the court below.