Gean v. Hattaway , 330 F.3d 758 ( 2003 )

CLAY, Circuit Judge,

concurring.

I concur in the outcome reached by the majority opinion, but write separately to emphasize that my concurrence is compelled by the Supreme Court’s holding in Washington State Dep’t of Social & Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003), as to Plaintiffs’ claims brought under the Social Security Act.

I also write separately to emphasize that while I agree with the majority opinion’s outcome as to Plaintiffs’ claims brought under the Equal Protection Clause, I disagree with the majority’s language and discussion related to this claim. Specifically, I do not concur in the majority opinion’s discussion of the Supreme Court’s statement in Saenz v. Roe, 526 U.S. 489, 507, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), as to whether “the State’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.” That is, I do not join the majority opinion’s language and related discussion to the effect that “[t]hough a state cannot discriminate against a potential welfare recipient based upon how long that individual has been in the state, it can — and does — discriminate against that individual based upon his ability to provide for himself without state assistance.” I decline to join that portion of the majority opinion’s language because I believe it to be at variance with the import and holding of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), and a plethora of Supreme Court pronouncements in the area of equal protection.