Robert and Karen Capato were married in 1999. Robert was diagnosed with esophageal cancer and concerned that the treatment would leave him sterile he had his sperm frozen. When his health improved, he and Karen conceived a child naturally. But his health then deteriorated, and Robert died in March 2002. Several months later Karen underwent in vitro fertilization, and bore twins eighteen months after Robert's death. See Bill Mears, CNN, Justices deny benefits for child conceived after death of parent (May 21, 2012)
The legal issue in this case is whether the twins qualify for Social Security dependent survivor benefits under federal law. The Supreme Court ruled against the twins, finding that they were not Robert's "children" within the meaning of the Social Security Act.
The Third Circuit ruled in favor of Capato on the ground that the term "child" in the Social Security Act includes all biological children of a married couple. The Supreme Court poked a number of holes in that theory. First, survivorship benefits are payable to dependent children regardless of whether the children were the product of a married union. Second, surviving children need not be the "biological" children of the decedent in order to qualify for benefits. Third, even if one were to accept the proposition that the Social Security Act grants benefits to all of the biological children of a married couple, it isn't clear that posthumously conceived children fit that definition. The Court stated, "Under Florida law, a marriage ends upon the death of a spouse." (p. 10)
There really isn't any doubt about the proper reading of the statute. The Social Security Act clearly states that state law of intestacy controls the meaning of the word "child," and under Florida law posthumously conceived children are not lawfully the child of the biological father. The agency's regulations track the statutory language, and the Supreme Court unsurprisingly reversed the Third Circuit and upheld the decision of the agency to deny the twins survivorship benefits.
The constitutional issue is whether this result violates the Equal Protection Clause. Does this law unfairly discriminate against posthumously conceived children?
Karen Capato argued that there is not a sufficient reason to treat the twins differently than her other child. Her lawyers contended that the treatment of posthumously conceived children was reminiscent of how children conceived out-of-wedlock used to be treated by the law. Historically, children born out-of-wedlock were denied all sorts of legal rights. These children had no done nothing to create their legal status, and they were powerless to change it. They did not possess any significant political power to change the law. And the fact of being born out-of-wedlock had absolutely no relation to their ability to be productive members of society. Accordingly children born out-of-wedlock met the criteria for heightened protection under the Constitution, and in a series of decisions the Supreme Court struck down laws that treated them differently. For example, the federal government could not prohibit children born out-of-wedlock from eligibility for social security survivorship benefits. Karen Capato contended that her twins should receive the same consideration.
On the one hand, Capato's argument has some appeal. The children themselves did not create their situation. They are powerless to change their legal status. They and other posthumously conceived children cannot hope to influence the political process. And they are certainly as likely to contribute to society as anybody else. They satisfy the elements of a "suspect" or "quasi-suspect" class and the law should not arbitrarily discriminate against them.
And yet a unanimous Court under Justice Ginsburg flatly denied their Equal Protection claim. Here is what Ginsburg had to say regarding the constitutional issue:
The SSA’s construction of the Act, respondent charges,raises serious constitutional concerns under the equal protection component of the Due Process Clause. Brief for Respondent 42; see Weinberger v. Wiesenfeld, 420 U. S. 636, 638, n. 2 (1975). She alleges: “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.Footnote 10 of Ginsburg's opinion points out that Capato's argument would in fact revive discrimination against children born out-of-wedlock:
Even the Courts of Appeals that have accepted the reading of the Act respondent advances have rejected this argument. See 631 F. 3d, at 628, n. 1 (citing Vernoff v. Astrue, 568 F. 3d 1102, 1112 (CA9 2009)). We have applied an intermediate level of scrutiny to laws “burden[ing] illegitimate children for the sake of punishing the illicit relations of their parents, because ‘visiting this condemnation on the head of an infant is illogical and unjust.’” Clark v. Jeter, 486 U. S. 456, 461 (1988) (quoting Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175 (1972)). No showing has been made that posthumously conceived children share the characteristics that prompted our skepticism of classifications disadvantaging children of unwed parents. We therefore need not decide whether heightened scrutiny would be appropriate were that the case. Under rational-basis review, the regime Congress adopted easily passes inspection. As the Ninth Circuit held, that regime is “reasonably related to the government’s twin interests in [reserving] benefits [for] those children who have lost a parent’s support, and in using reasonable presumptions to minimize the administrative burden of proving dependency on a case-by-case basis.” Vernoff, 568 F. 3d, at 1112 (citing Mathews, 427 U. S., at 509). (pp. 14-15)
 Ironically, while drawing an analogy to the “illogical and unjust” discrimination children born out of wedlock encounter, see Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175–176 (1972), respondent asks us to differentiate between children whose parents were married and children whose parents’ liaisons were not blessed by clergy or the State. She would eliminate the intestacy test only for biological children of married parents. (p. 15)I disagree with the Court's reasoning insofar as it might permit other forms of discrimination against posthumously conceived children. These children's condition is immutable, they are politically powerless, and they are as likely to contribute to society as anybody else. These facts make these children a "protected class" and the government should have the burden of proving that any law that treats them differently is justified by important governmental interests.
The strongest argument justifying the result in this case is inherent in footnote 10. In essence, the Court finds that the Capato twins were not treated differently. To the contrary, to find paternity here simply because their biological parents had been married would be to treat them differently from other children who might be posthumously conceived. When Robert Capato died his legal status as a person to engage in future actions ceased. He no longer had the capacity to consent to becoming a father. In footnote 10 Justice Ginsburg was in effect ruling that the Constitution does not grant a woman the right to conceive a child with a deceased man and thereby make him the legal father of her child. Instead, a woman's power to do this rests upon the state law of parentage. Ginsburg concludes:
Tragic circumstances—Robert Capato’s death before he and his wife could raise a family—gave rise to this case. But the law Congress enacted calls for resolution of Karen Capato’s application for child’s insurance benefits by reference to state intestacy law. We cannot replace that reference by creating a uniform federal rule the statute’s text scarcely supports. (p. 16)Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.