Plaintiff is the widower of a former Newark city employee and claims widower's benefits under the Employees' Retirement System of Newark. Plaintiff's wife was an employee of defendant City of Newark for 37 years and was a member of defendant Employees' Retirement System. She contributed $11,289.50 to the Retirement Fund and that amount was matched on her behalf in contributions by her employer, City of Newark. Upon the death of his wife plaintiff applied to the Employees' Retirement System for widower's benefits pursuant to N.J.S.A. 43:13-22.20. His application was denied. This litigation followed.
N.J.S.A. 43:13-22.20 provides:
Subject to the other provisions of this act, upon and after the death of such employee or pensioner, said retirement pension shall be paid to the surviving widow, so long as she remains unmarried; surviving dependent widower, as herein defined, so long as he remains unmarried; * * * provided, however, that in no instance shall a pension payment to such widow, dependent widower * * * exceed $3,000 per annum.
N.J.S.A. 43:13-22.3 defines a widower as:
Plaintiff widower challenges the distinction made between widows and widowers by these sections and claims that this classification violates the Equal Protection Clause of the Fourteenth Amendment in that a widower is required to prove dependency in order to qualify for benefits while a widow qualifies automatically solely because of her sex.*fn1
The Equal Protection Clause of the Fourteenth Amendment has traditionally been applied according to two separate standards of judicial review, the "rational basis" test and the "strict scrutiny" test. While a statute has a strong presumption of constitutionality. McGowan v. Maryland , 366 U.S. 420, 425, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961), nevertheless it will be struck down as violative of equal protection if it is arbitrary, irrational or improperly discriminatory. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." F.S. Royster Guano Co. v. Virginia , 253 U.S. 412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 2d 989 (1920). However, "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."
McGowan v. Maryland, supra 366 U.S. at 426, 81 S. Ct. at 1105.
While under the "rational basis" test "a legislative classification must be sustained unless it is 'patently arbitrary' and bears no rational relationship to a legitimate governmental interest," Frontiero v. Richardson , 411 U.S. 677, 683, 93 S. Ct. 1764, 1768, 36 L. Ed. 2d 583 (1973), and the burden is on the opponent of the statutory scheme to show that no reasonable relationship to a valid state objective exists, Dandridge v. Williams , 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970), McGowan v. Maryland, supra , under the "strict scrutiny" test the burden shifts. Shapiro v. Thompson , 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). Here, the state must show that a "compelling state interest" exists for the challenged statute. The "strict scrutiny" test is applied rather than the "rational basis" test when the classification involved is itself considered "suspect". San Antonio Indep. School Dist. v. Rodriguez , 411 U.S. 1, 17, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). "Suspect" classifications currently include race, nationality and alienage. Frontiero v. Richardson, supra 411 U.S. at 688, 93 S. Ct. 1764. To the present time, in no case has a majority of the United States Supreme Court held that sex is a "suspect" classification, although federal decisions appear pointed in that direction.
Recently, three Supreme Court cases have shown an inclination to move the classification of sex into the suspect category. In Reed v. Reed , 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), a mother filed a petition in Probate Court in Idaho to be appointed administratrix of her son's estate. The father then filed a competing petition to have himself appointed administrator. The Idaho Code § 15-314 provided that "[o]f several persons claiming and equally entitled to administer, males must be preferred to females * * *." The Probate Court ordered that the letters of administration be issued to the father. Chief Justice Burger, writing for a unanimous court, held that the subject provision
of the Idaho Code was unconstitutional as violative of the Equal Protection Clause because it provided dissimilar treatment for men and women who are similarly situated. The argument of the state was that the challenged provision reduced the workloads on probate courts by eliminating one class of contests. The court found that this claim was not without some legitimacy, but reasoned that to give a mandatory preference to members of one sex over members of the other merely to accomplish the ...