The Case Study of King V

N. Daniel, E. Shepherd, M. Towey

Case Study of King v. Smith, 392 U.S. 309

Page 1 of 22

Introduction

In King v. Smith, the Supreme Court ruled that “[d]estitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute father.”[1] With this decision, the Court struck down an Alabama law that terminated welfare payments to families headed by single mothers who were involved in sexual relationships with men, even if the men were not legally obligated to support the family. King v. Smith was the first welfare case to reach the Supreme Court, and was one of several cases in the late 1960’s and early 1970’s to establish new rights for welfare recipients in the United States.[2]

Part I of this case study outlines the history of governmental responses to the problem of poverty, and the early use of public assistance to reward and punish behavior. This history continues with a description of the evolution of public assistance standards and the property-right argument defined by Charles Reich in the 1964 article The New Property.

Part II begins with an introduction of the parties including how and why the plaintiffs filed the lawsuit, including a brief history and biography of plaintiffs and their counsel. Part II concludes with a discussion of the opinion and how the court found that the substitute father regulation which denies AFDC payments to the children of a mother who “cohabits” with an able-bodied man violates the Social Security Act.

Part III outlines key cases following King, which strengthened individual welfare rights against state administrations. Part III then describes recent legislation that has changed the face of welfare. This section will describe the return in large part of “the marriage cure” for families living in poverty.

1. The History: The Evolution of Public Welfare Programs prior to King v. Smith

The Supreme Court opinion in King v. Smith introduces the history of public welfare programs prior to the case.[3] Part I of this Case Study expands on this introduction, and focuses primarily upon the tension between the concept of public assistance as a useful tool for behavior modification and the opposing view of assistance as an amoral property right established by eligibility requirements. The Court in King seemingly splits the difference, by rejecting the Alabama “substitute father” restrictions while praising alternative methods of moral rehabilitation.

1. Is Public Welfare as a Tool for Behavior Modification?

As described by the Court in King, public assistance programs in the late eighteenth and early nineteenth century targeted the “‘worthy’ poor,” and benefits were limited to the families of morally fit widows or those living in “suitable homes.”[4] The concept of the deserving and undeserving poor predates American welfare programs, and predates the nation itself.

The Statute of Laborers, described as the first legislation regarding welfare, was enacted in England in 1349 and expressly forbade the giving of alms to able-bodied beggars.[5] As the English economy evolved from feudalism to capitalism in the ensuing centuries, the “worthy poor” were allowed to beg while all others faced prison for doing so.[6] By the 1830’s, both in England and the new United States, poorhouses were established in an effort to reform destitute people by instilling the value of labor.[7] The poorhouses were not designed to be comfortable. Instead, as described by historian Walter Trattner, the designers of the poorhouses believed that “‘the condition of welfare recipients, regardless of need or cause, should be worse than the lowest paid self-supporting laborer. While relief should not be denied to the poor, life should be made so miserable for them that they would rather work than accept public aid.’”[8]

As conditions in the poorhouses worsened, advocates introduced the use of direct financial assistance to people living in poverty as an alternative. However, reformers still preferred private charity rather than governmental involvement. They believed that assistance should not be considered to be a right, but instead should remain uncertain and therefore not threaten recipients’ work ethic and initiative.[9] As described by Professor Joel Handler of the UCLA School of Law,

For more than five hundred years, the relief of those who could not earn their way … focused on the individual rather than on labor markets or other social conditions. The enduring issue was framed in moral terms---the preservation of the work ethic…The conditions of relief had to be sufficiently miserable and stigmatic as to deter the working poor [from abandoning their labor]. Relief policy was less to reform the poor---who, for the most part could not work anyway---than to send a message to the working population.[10]

Thus, moral requirements attached to welfare payments and the government’s apparent power to control the behavior of people living in poverty have been considerations long before the Supreme Court addressed them in King v. Smith.

1. Is Public Welfare a Method to Protect Children?

The plight of poor children, as distinct from the poor in general, received greater attention in the late nineteenth century.[11] Children were removed from their families living in the poorhouses and instead placed in orphanages. Child advocates equated poverty with neglect, and seized poor children from their homes and sent them to institutions or farms.[12] By the turn of the century, however, some reformers realized that they could support these children by supporting their mothers, rather than break up their homes.[13] Based upon this premise, Aid to Dependent Children (ADC) programs began in 1911 with the Illinois Fund to Parents Act and spread to nearly every state by 1925.

The ADC programs had numerous restrictions, most notably the disqualification of all intact families with two parents, based upon the premise that financial assistance to families with fathers would promote irresponsibility and idleness.[14] Additionally, all single mothers had to be “fit and proper.” As described by Professor Handler,

In practice, ADC programs remained small. Relatively few families were enrolled; recipients were almost exclusively white widows … Excluded outright were most poor mothers---those who were divorced, deserted, never married, of color, or engaged in questionable behavior … They were the undeserving poor.[15]

ADC became a federal grant-in-aid program in 1935 as part of the Social Security Act. While the program was federally funded, the administration powers, including the eligibility rules and regulations, remained with the state and local governments.[16] Mothers who did not meet the criteria of “fit and proper” faced suspension of benefits, leaving their children without any obvious means of support. Suspended support, as noted by the Supreme Court in King v. Smith, often had unintended consequences:

“disqualification provisions undermined a mother's confidence and authority, thereby promoting continued dependency; … they forced destitute mothers into increased immorality as a means of earning money; … they were habitually used to disguise systematic racial discrimination; … [and] they senselessly punished impoverished children on the basis of their mothers’ behavior, while inconsistently permitting them to remain in the allegedly unsuitable homes.”[17]

“Unsuitable homes” often referred to homes led by single mothers. Incentives for marriage (or, conversely, disincentives for single motherhood), like those addressed by the Court in King v. Smith, were created to address this concern. The “man in the house” rules became a common, with variations of the substitute father regulations in at least eighteen states.[18] The regulations were typically justified “on the grounds that a man living with a woman and her children would contribute financial support-- a situation indistinguishable from a married couple who would not qualify for AFDC. More commonly, the assumption was simply that ‘immoral women’ were not entitled to aid.”[19]

1. Is Public Welfare “Property” which can be Protected as a Right?

As a grant-in-aid program, ADC had relatively few federal constraints, which allowed state and local governments to run the programs based on their own rules and regulations.[20] Thus, until the early 1960’s, ADC “remained small, and still basically for white widows.”[21] However, starting in the late 1950’s, ADC eligibility regulations changed dramatically, in sync with the civil rights movement. As described by Handler, “[w]elfare became a ‘right’ and in streamed the previously excluded---women of color, divorced, separated, deserted, and increasingly, never married.”[22]

The Court in King v. Smith claimed that Aid for Families with Dependent Children (“AFDC”) reforms in the 1960s “corroborate that federal public welfare policy now rests on a basis considerably more sophisticated and enlightened than the ‘worthy-person’ concept of earlier times.”[23] After the 1960’s, advocates argued that public welfare benefits should not be considered charity, but instead should be redefined as a property right created by eligibility criteria. According to Donna Price Cofer, the “Social Security Act of 1935 provided that all persons establishing eligibility under its dictates are entitled to its benefits.”[24] The term “entitlements” reflects this concept, because eligible recipients are entitled to public welfare benefits based solely on income levels and financial need. By moving away from a morality-based criterion for benefits, this claim might reflect the property-right based concept.

This rights-based argument was famously articulated in the 1964 Yale Law Journal article The New Property by Professor Charles Reich. Entitlement, according to Reich, means “objective eligibility safeguards against revocation or loss of benefits, and it means that the individual’s rights, whatever they may be, should be know to him and enforceable through law.”[25]

In the article, Reich describes the vastness of federal government largess, including welfare benefits, government employment, licenses, franchises, contracts, subsidies, services, and the use of public resources.[26] As Reich noted, “[h]ardly any citizen leads his life without at least partial dependence on wealth flowing though the giant government siphon. In many cases, dependency is not voluntary. Valuables that flow from government are often substitutes for, rather than supplements to, other forms of wealth.”[27]

In addition to direct financial support from the government, Reich explained that “more and more of our wealth takes the form of rights or status rather than of tangible goods.”[28] He noted that these rights provided by the government may not necessarily be considered property in a conventional legal sense.[29] Traditionally, government largess was considered either a privilege or gratuity, neither of which was protected as a property right.[30] According to Reich, however, property “is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind.”[31] He posited that property is a construction of society that maintains an individual’s independence and dignity by creating limits in which the rest of society must yield.[32]

Reich concluded that government largess must “begin to do the work of property.”[33] He wrote that “[e]ventually those forms of largess which are closely linked to status must be deemed to be held as of right. Like property, such largess could be governed by a system of regulation plus civil or criminal sanctions, rather than a system based upon denial, suspension and revocation.”[34] Reich concluded that the concept of largess as a right is most important for welfare programs that support the unemployed, the elderly, and those living in poverty. Recognizing that these benefits “represent part of the individual’s rightful share in the commonwealth,” Reich insisted that welfare and other benefits must be protected as a property right in order to maintain individual well-being and dignity.[35]

At the time of King v. Smith, however, the courts had not adopted the argument that welfare payments should be considered a property right. In fact, in a case filed at the same time as King, a District of Columbia federal court allowed “man in the house” substitute father regulations. The court agreed with the defendant Board of Commissioners that welfare benefits should be considered “grants or gratuities. Their disbursement does not constitute payment of legal obligations that the government owes.”[36] It was in this setting, with an ongoing debate regarding behavior modification, the well-being of children, and the property-rights of welfare benefits that King v. Smith was filed in federal court in late 1967.

1. The Case Itself: The People, Issues and Legal Arguments of King v. Smith

1. The Parties

The plaintiff, Mrs. Sylvester Smith (“Smith”), filed this action on behalf of herself, her four minor children and all other mothers of needy, dependent children who were similarly situated. Smith sought injunctive relief restraining the defendant, the State of Alabama, from the enforcement and execution of the state’s "substitute father" regulation. For several years, Smith and her children received financial assistance under the Aid to Dependent Children program of the State of Alabama which was a public assistance program authorized by the Code of Alabama, Title 49, § 17 and under 42 U.S.C. §§ 601-609. However, in October of 1966, Smith received a notice stating that her family would be removed from the list of persons who were eligible to receive the aid because of her relationship with Willie E. Williams (“Williams”) was in violation of the substitute father regulation.[37] The children of Smith had not received support from their respective fathers for numerous years and the only support they received was through their mother’s low-paying job.[38] The notice stated that Smith should look to the substitute father, Williams, for financial support. However, Williams, who was living with his wife, had nine children of his own and did not have the financial means to support Smith’s children.[39]

The defendants are the chairman, members and officials of the Alabama State Board of Pensions and Security (collectively referred to as the “Defendants”), and were responsible under the law of Alabama for the adoption of policies, rules and regulations of the Alabama State Department of Pensions and Security.[40] The Commissioner of the Alabama Department of Pensions and Security has a statutory responsibility for the adoption of the regulations designed to affect the policy and for exercising the executive and administrative duties of the Alabama State Department of Pensions and Security.[41] The Defendants were required to formulate a plan in order to receive federal funds under the program. The plan to receive aid for dependent children was required to be consistent with the provisions of the Constitution of the United States and the provisions of 42 U.S.C. § 601 et seq. The Code of Alabama required that the Defendants are to “act as the agent of the federal government in the administration of federal funds granted… and to otherwise act as the agents of the federal government in the furtherance of the objectives of the Aid to Dependent Children program.”[42] With this arrangement, the federal funds constituted the major share of Aid to Dependent Children grants in the State of Alabama.[43]

B. The Attorneys

Martin Garbus, who today is known as one of the greatest trial attorneys in our country, represented Smith.[44] Garbus began working on Smith’s case as a co-director at the Center for Social Welfare Policy and Law (the “Center”).[45] Garbus drafted the Smith complaint on a similar complaint in Georgia under the “employable mothers” regulation which also denied assistance based on the mother’s ability to find employment where her children were over the age of three.[46] The Georgia case was framed on racial discrimination allegations and sought a review under strict scrutiny.[47] However, before Garbus could file the complaint on behalf of Smith, a group of attorneys in Washington D.C. filed a lawsuit, Smith v. Board of Commissioners.[48] The case attacked the substitute father regulation as well, but it did not survive a motion to dismiss.

Garbus took his chances and filed the lawsuit, believing that his arguments and case were stronger than that of the Washington D.C. attorneys. The case moved along quickly and Garbus and the Center began to prepare a “Brandeis Brief”. The brief focused on racial discrepancies for receipt of AFDC payments. The brief noted that of the 184 cases closed under the substitute father regulation, 182 involved black families.[49] The district court held that the substitute father regulation violated the Equal Protection Clause of the Fourteenth Amendment. The court further ordered Alabama to reinstate AFDC payments to needy children. A week later, the State appealed the district court’s holding.

While Smith v. King was in the appeal process to the Supreme Court, Garbus left the Center and began working for the Roger Baldwin Foundation under the American Civil Liberties Union. The Center feared that in his appellate brief, Garbus focused too much on racial discrimination arguments rather than honing in on the statutory arguments of whether the substitute father regulation violated the Social Security Act. Thus, the Center filed an amicus brief alleging a violation of the Social Security Act. Garbus argued against Mary Lee Stapp, the attorney who represented the State of Alabama. While Garbus faced difficult questions from the Court, Mary Lee Stapp faced outright hostility from a few of the judges.[50]